N.Sankaranarayanan v. N.Arunachathammall
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.01.2020 CORAM :
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN N.Sankaranaraynan ... Petitioner
Versus
1.N.Arunachathammal 2.N.Gomathinayagam 3.S.Saraswathi 4.K.Subha 5.V.Manthiram 6.C.Aruna 7.L.Chinnammal 8.L.Aruna 9.L.Vellammal 10.L.Muthulakshmi 11.S.Muthuvel 12.S.Sankaran 13.S.Venkatachalam 14.S.Ananda Saraswathi 15.M.Bhagavathi 16.S.Ramalingam 17.S.Narayanan 18.S.Muthulakshmi 19.S.Murugan 20.S.Paramasivam 21.S.Selvaraj 22.K.Parameswariammal 23.K.Muthulakshmi 24.S.Indira 25.K.Vadivel Murugan 26.K.Muthukrishnan 27.K.Muthuselvakumar 28.S.Paramasivam Pillai 29.S.Gomathiammal 30.M.Shanmugasundari 31.P.Muthurajeswari
32.G.Vasuki 33.S.Balasubramanium 34.R.Lakshmi 35.R.Umasankari 36.K.Ulageswariammal 37.K.Muthusamy 38.V.Anandhi 39.K.Shanmughasundaram 40.M.Sundari 41.C.Sankari 42.K.Murugan 43.R.Vallidevi ... Respondents Civil Revision Petition filed under Section 115 of the Civil Procedure Code, praying to set aside the order dated 12.11.2013 in un-numbered I.A.No.... of 2013 in C.F.R.No.8077 of 2013, direct restoration of the suit in O.S.No.37 of 2010 and further direct for transmission of the suit to this Court as per the order in T.O.P.Nos.2662 & 2663 of 2012 in C.S.No.592 of 2009.
For petitioner : Mr.A.K.Raghavulu For Respondents : Mr.C.Umashankar, for R11 to R13, R16, R17, R19 to R21 : Mr.K.S.Viswanathan, for R26, R29, R30, R32, R34, R36, R38, R40 to R43 : Ex-parte - R1, R3 to R10, 14, 15, 18 & 35 (before the Trial Court) : No Appearance-R2, R22 to R25,31,37 & 39
ORDER
The plaintiff in the suit O.S.No.37 of 2010 is the revision petitioner herein.
2.The petitioner/plaintiff filed the suit for partition and separate possession in O.S.No.37 of 2010 on the file of the Sub-Court, Ponneri, in which, he claims 1/7th of share in the suit property along with additional share in item Nos.1 and 2.
3. The 36th defendant filed a written statement, which was adopted by defendants Nos.22, 23 to 27, 29, 30, 32, 33, 40 to 43. No summons were served on the defendants 31 & 39. After giving due opportunities to the defendant Nos.2, 24, 25, 28 & 37, they have not filed any written statement. On hearing date, i.e on 19.11.2012, substituted service was ordered to the defendants 31 & 39, and the defendants No.2, 24, 25, 28 & 37 were directed to file their written statement and the matter was adjourned to 22.01.2013. Further, it appears that on 22.11.2012, the matter appears to have been taken up for hearing and the proceedings are recorded as if the plaintiff's counsel reported that no instructions from the plaintiff, accordingly, the suit was dismissed for default. In respect of filing an application for restoring the suit, it appears that the application was filed under Sections 151 & 152 of CPC and the same was dismissed. Hence, the present Civil Revision Petition by the plaintiff.
4. After going through the affidavit filed before the Trial Court, it is seen that in fact, in respect of the same property, Civil Suits were filed before the original side of this Court in C.S.Nos.591, 592 & 593 of 2009,
which are pending before this Court, while another Civil Suit No.12087 of 2010 is pending before the VII-Additional City Civil Judge at Chennai. It appears that the petitioner herein filed Transfer Original Petitions in Tr.O.P.Nos.2662 & 2663 of 2012, before this Court to transfer all these suits pending before the above said Courts to this Court for conducting a joint trial and the said transfer petitions were allowed on 14.08.2013. At that time, after the order was passed in the transfer petitions, the petitioner came to know that the main suit was dismissed for default, as observed thereunder, the present application is filed under Sections 151 & 152 of CPC., for rectifying the mistake committed in dismissing the suit for default on 22.1.
2012 and to restore the suit on file and send the suit records to this Court as per the order in transfer petitions Tr.O.P.Nos. stated above. It is stated by the learned counsel for the petitioner that in the case bundle, they have made endorsement 'no instructions' by the counsel for the defendants 2 & 28, for whose written statement only, the case was posted for the hearing date 22.01.2013 and not on 22.11.2012 and on that day, learned counsel for the plaintiff has not made any representation to report as no instructions on behalf of the plaintiff, as mentioned in the said order.
5. Taking note of entirety of the facts into consideration and also taking note of the fact that the written statement was not filed by the defendants No.2, 24, 25, 28 & 37, I am of the considered view that taking into consideration the suit in respect of O.S.No. 37 of 2013 was taken for
hearing on 22.11.2012 itself instead of 22.01.2013, and it had left confusion in the mind of the counsel, as he reported no instructions as if from the plaintiff instead of defendants 2 and 28, and the suit was dismissed for default on that score. Therefore, the order passed in C.F.R.8077 of 2013 is set aside and the suit in O.S.No.37 of 2010, which was filed before the Sub-Court, Ponneri, is restored to file and pursuant to the transfer order, the transfer petitions in Tr.O.P.Nos.2662 & 2663 of 2012 shall stand restored to the Original side of this Court. Hence, the Civil Revision Petition is allowed.
6. On restoration, the Sub-Court, Ponneri is directed to issue notice for hearing to all the parties before transferring the case to this Court and pursuant to the order of transfer, after restoring of the transfer bundle from the Ponneri Court to this Court.
7. Registry is directed to issue fresh summons to all the defendants in all of the case before listing to the Court, before the Master, while taking the transferred suit along with C.S.No.592 of 2009. With these observations, the Civil Revision Petition is allowed. No costs. 06.01.2020 Index : yes/no Internet : yes/no Speaking/Non-Speaking order klt
RMT.TEEKAA RAMAN,J., klt To The Sub-Court, Ponneri.
06.01.2020