Madras High CourtCMA(MD)/624/2017disposed of

Sundaram v. Daisy

2017-08-10Honourable Mrs Justice J. Nisha Banu3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.08.2017

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU C.M.A(MD)No.624 of 2017 and CMP(MD)No.6511 of 2017 1.Sundaram 2.Gracy 3.Geetha 4.Vinu 5.Renganadhan 6.Selvaraj 7.Ambika 8.Anilprabin 9.Anisha 10.Asha ... Appellants / Respondents 5, 11 to 13,15,16 and 56 to 59/D7, D15, D16, D17, D19 and D20 Vs.

1.Daisy ... 1st Respondent / Appellant / Plaintiff Kutti Amma (died) 2.Neelakumari ... R2/R2/D2 3.Nishkalankam ... R3/R3 Murugesa Pillai (died) Natarajan (died) 4.Rajayyan .. R4/R7/D10 Pooradan (died) 5.Thankamony )( 6.Chellaswamy )( .. R5&R6/R9 & R10/D12 & D13 Retnasamy (died) 7.Chempakam Amma 8.Sreekanteswari 9.Thulasi Sreekanteswari 10.Ebanezer, 11.Kosalai 12.Vargheese ... R7 to R12/R17 to R22/D22 to D24, D26, Lohidasan (died) D28, D29 13.Bhaskaran 14.Lakshmi 15.Sreeleswari 16.Monikandan 17.Selvi 18.Datheesh

19.Jasmin Soba 20.Joseph Soja 21.Rajula Chandran 22.Vijayan 23Ayyalingam 24.Kasthuri 25.Prabhakaran 26.Saradha 27.Bindhu 28.Saji 29.Nirmala 30.Ayyappan 31.Monkandan 32.Jayanthi 33.Pitchai 34.Apsara 35.Madhavi Amma 36.Sadanadan 37.Neelambaran 38.Sreekandeswaradhas 39.Ganeshkumar 40.Sarasamma 41.Rathika 42.Akhila 43.Balasankar 44.Muhammed Pious ... Respondents 13 to 44 / Respondents 24 to 55 / D31 to D35, D27 to D47, Lrs of D11, D30, D6 and D8 PRAYER:- Civil Miscellaneous Appeal filed under Order 43 Rule (1) (u) of Code of Civil Procedure, against the fair and decretal order in A.S.No.46 of 2011 and Cross Appeal on the file of Camp Court Judge of Kuzhithurai dated 03.02.2017 reversing the Judgment and decree in I.A.No.467 of 2004 in O.S.No.410 of 2004 dated 23.09.2010 on the file of First Additional District Munsif Court, Kuzhithurai. For Appellant :Mr.V.M.Balamohan Thampi For R-1 (Caveator) : Mr.R.Nandakumar For R-4 : Mr.N.Dilipkumar

J U D G M E N T

This Civil Miscellaneous Appeal has been filed by the Appellants / Respondents 5, 11 to 13, 15, 16 and 56 to 59 against the fair and decretal order in A.S.No.46 of 2011 and Cross Appeal on the file of Camp Court Judge of Kuzhithurai dated 03.02.2017 reversing the Judgment and decree in I.A.No.467 of 2004 in O.S.No.410 of 2004 dated 23.09.2010 on the file of Additional District Munsif Court, Kuzhithurai.

2.Heard the learned counsel for the appellants and the learned counsel for the respondents 1 and 4 and also perused the materials

available on record.

3.The only issue, which has to be decided by this Court is whether the remand by the lower Appellate Court is right or wrong, without adverting to the merits of the matter. 4.Today, when the matte came up for hearing, the learned counsel for the first respondent/plaintiff would submit that he does not have any objection for setting aside the order of remand, but prays for a direction to the trial Court to dispose of the appeal within a time frame, for which, the learned counsel for the appellants has also got no objection.

5.The learned counsel for the appellants has relied on two Judgements of this Court in S.SHANMUGHAM v. S.SUNDARAM AND OTHERS reported in 2005 (2) MLJ 552 and in ARULMIGU CHOKKANATHASWAMY THIRUKOVIL v. S.J.DHARMARAJ AND OTHERS reported in 2011 (5) L.W. 836, wherein it has been held that only in exceptional cases where the judgement of the trial Court is wholly unintelligible or incomprehensible, the Appellate Court can remand the suit for fresh trial.

6. At this juncture, the order of the remand is set aside and a direction is given to the lower Appellate Court to dispose of the appeal. Without adverting into the merits of the case, the parties are at liberty to make their submissions before the Appellate Court. The Appellate Court shall proceed with the matter and dispose of the same, within a period of six months from the date of receipt of a copy of this order.

7.This Civil Miscellaneous Appeal is disposed of accordingly. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To,

1. The Camp Court Judge of Kuzhithurai.

2. Additional District Munsif Court, Kuzhithurai. +1cc to Mr.N.DILIP KUMAR Advocate in SR. NO.71919 +1cc to Mr.R.NANDAKUMAR Advocate in SR. No.72132 +1cc to Mr.V.M.BALA MOHAN THAMPI Advocate in SR. No.72228 RJ2 JS/SV.MMS/SAR.4/29.08.2017/3P-6C C.M.A(MD)No.624 of 2017 10.08.2017