Selvalakshmi @ Maryselvarani vs Palaniyappan

Court
Madras High Court

CMA(MD) No. 989 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03-11-2026
CORAM
THE HON'BLE DR.JUSTICE P.MURUGAN
CMA(MD) No. 989 of 2024
and
CMP(MD)No.10371 of 2024
CNR:{HCMD010043812024}
1. Selvalakshmi @ Maryselvarani
W/o.Duraisingh,
M.M.Nagar,
Muthuthevar Colony,
Virattipathu,
Madurai.
2. Vasantha Kokilam
W/o.Thagadurai,
5/751,Near Beschi College,
Co-operative Nagar,
Karur Road,
Dindigul District.
..Appellants
Vs
1. Palaniyappan
S/o.Ayyavoo Nadar,
D.No.6-14-33,
Telephone Office Street,
Batlagundu Town,
Nilakkotai Taluk,
Dindigul District.
2. Selvi
W/o.Palaniappan,
D.No.6-14-33,
Telephone Office Street,
Batlagundu Town,
Nilakkotai Taluk,
Dindigul District.
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CMA(MD) No. 989 of 2024
3. M.Poongothai
W/o.Manimaran,
Plot.No.351, K.K.Nagar,
Madurai.
4. S.Mahalaksmi @ Poongodi
W/o.Sakthivel,
Lillyrama Readymade Store,
Periyakadai Veethi,
Aruppukotai,
Virudhunagar District.
5. A.Gunasekaran
S/o.Ayyavoo Nadar,
D.No.6/7/53, Kannaki Street,
Batlagundu,
Dindigul District. ..Respondent(s)
PRAYER: Civil Miscellaneous Appeal filed under order 43 rule 1(c)
Civil Procedure Code, to set aside the Fair order and Decreetal order
dated 07.09.2023 in I.A.No.2 of 2023 in O.S.No.24 of 2016 on the file of
the Additional District Judge, Dindigul and allow the Civil Miscellaneous
Appeal and thus render justice.
For Petitioner(s) :Mr.M.Vivek Bharathi
For Respondent(s) :Mr.M.P.Senthil
for R.1 & R.2
No Appearance for R.3 to R.5
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the fair
order and decreetal order dated 07.09.2023 in I.A.No.2 of 2023 in
O.S.No.24 of 2016 on the file of the Additional District Judge, Dindigul.
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CMA(MD) No. 989 of 2024
2. The plaintiffs before the Trial Court has filed this CMA
challenging the dismissal order passed in I.A. No. 2 of 2023 in O.S. No.
24 of 2016, dated 07.09.2023, whereby the application filed by the
appellants herein under Order IX Rule 9 of CPC to restore the suit in O.S.
No.24 of 2016 on the file of the Additional District Judge, Dindigul, was
dismissed on contest.
3.The brief facts of the case is that the appellants herein filed a suit
for partition against the respondents herein. Pending the suit, the
plaintiffs filed an application for amendment, which was allowed.
Thereafter, the plaint had to be amended and a copy of the amended
plaint had to be filed. However, the amended plaint copy was not
properly filed. Consequently, the Trial Court dismissed the suit on
15.06.2022. Even after one and a half years, no proper amended plaint
copy was filed. This shows that the counsel before the Trial Court
mechanically filed an incomplete amended plaint. It is a matter of
practice before the Trial Court that whenever a party files incomplete
pleadings, affidavits, petitions, documents, etc., it hampers the
proceedings before the Trial Court.
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CMA(MD) No. 989 of 2024
4.Thereafter, the plaintiffs filed an application to restore the suit
under Order IX Rule 9 of CPC within the prescribed period of limitation
of 30 days. The said application was contested by the contesting
defendants 1 and 2. After hearing both sides, the Trial Court ultimately
dismissed the application by the impugned order on the ground that the
amended plaint copy was not prepared in accordance with the details
contained in the amendment petition, which had already been allowed.
Taking note of the fact that even after one and a half years no proper
amended plaint copy had been filed, the Trial Court dismissed the
application to restore the suit. Aggrieved by the same, the present appeal
has been filed.
5.This Court has taken up the matter for consideration and after
hearing the learned counsel for the appellants as well as the learned
counsel for the respondents 1 and 2, it is seen that the names of
respondents 3 to 5 are printed, but there is no representation on their
behalf.
6.The suit is one for partition among the co-sharers, wherein the
plaintiffs are entitled to 2/6th share. There are 18 items of properties in
the suit. Pending the suit, the plaintiffs came forward with an application
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CMA(MD) No. 989 of 2024
for amendment, which was allowed. It is the duty of the parties or their
counsel to carry out the amendment in the plaint and proceed with the
case further. As per the impugned order of the Trial Court, the plaintiffs
did not come forward with a proper amended plaint copy for more than
one and a half years. Taking note of the fact that the suit had been
pending since 2016, the Trial Court ultimately dismissed the suit for
default. Thereafter, the application to restore the suit was also dismissed
on the same ground. Aggrieved by the same, the appellants is now before
this Court.
7.The learned counsel for the appellants submitted that the
plaintiffs cannot be penalised for the mistake committed by their counsel
before the Trial Court, particularly when the suit is one for partition,
wherein the rights of the co-sharers have to be determined. Therefore, on
sympathetic consideration, this appeal may be allowed, subject to such
conditions as may be imposed to ensure that the proceedings are
conducted as expeditiously as possible.
8.The learned counsel for the respondents 1 and 2 submitted that
the suit is a baseless one, wherein the 5th defendant therein had already
filed a suit for partition in respect of the same properties, which was
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CMA(MD) No. 989 of 2024
dismissed, and the dismissal order was also confirmed in the appellate
proceedings. This is yet another round of litigation initiated by the sisters
of the 5th defendant.
9.Considering the same, this Court is of the view that the Civil
Miscellaneous Appeal has to be allowed by giving an opportunity to the
appellants, subject to the imposition of heavy costs and the condition that
the suit before the Trial Court shall be disposed of expeditiously.
10.Taking into consideration the fact that the parties are co-owners
of the properties and that the earlier suit filed by the 5th defendant was
dismissed, the rights of the co-owners have to be determined in the
pending suit. Therefore, this Court is of the view that the appeal can be
allowed subject to payment of costs of Rs.15,000/- (Rupees Fifteen
Thousand only) to the contesting defendants 1 and 2. On such payment
of costs, the Trial Court is directed to restore the suit to its file upon
production of proof of payment. Thereafter, the Trial Court is directed to
dispose of the suit within a period of six months from the date of payment
of the costs of Rs.15,000/- (Rupees Fifteen Thousand only) to the
defendants 1 and 2. The said costs shall be paid within a period of one
month from today. The Trial Court is also directed to fix the hearing of
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CMA(MD) No. 989 of 2024
the case at least twice a week, and there shall be progress from both sides.
If the plaintiffs adopt delaying tactics, it is left open to the Trial Court to
dispose of the matter in accordance with law without granting further
adjournments.
11.The learned counsel for the appellants submitted that there may
be a possibility that defendants 1 and 2 may not receive the costs as
directed by this Court. If that is so, the plaintiffs are permitted to deposit
the said amount before the Trial Court within one month from today.
12.This Civil Miscellaneous Appeal is allowed accordingly. No
costs. Consequently, the connected miscellaneous petition is closed.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
MGA
Note: Issue order copy on 05.11.2026.
Copy To :
1.The Section Officer ( VR Section )
Madurai Bench of Madras High Court
2.The Additional District Judge, Dindigul.
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CMA(MD) No. 989 of 2024
DR.P.MURUGAN, J.
MGA
CMA(MD) No. 989 of 2024
03-11-2026
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