Madras High Court
CMA(MD)/989/2024 of Selvalakshmi @ Maryselvarani Vs Palaniyappan on 3 November 2026
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.
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
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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.
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.
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 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 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 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.
DR.P.MURUGAN, J. MGA CMA(MD) No. 989 of 2024 03-11-2026