1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.255 of 2011 and MP(MD)No.1 of 2011 R.Maheswari .. Appellant/Defendant Vs. R.Pragatheesh .. Respondent/Plaintiff Second Appeal filed under section 100 of CPC against the Judgment and decree dated 09.03.2011 passed in Appeal Suit No.37 of 2010 by the Sub Court, Sivagangai confirming the Judgment and decree dated 10.12.2007 passed in Original Suit No.21 of 2005 by the District Munsif Court, Sivagangai. For Appellant : No appearance For Respondent : Mr.V.Nagendran JUDGMENT This second appeal has been directed against the concurrent Judgmnets and decrees passed in Original Suit No.21 of 2005 by the District Munsif Court and in Appeal Suit No.37 of 2010 by the Sub Court, Sivagangai respectively. 2. The respondent herein as plaintiff has instituted Original Suit No.21 of 2005 on the file of the trial Court for the reliefs of declaration and mandatory injunction, wherein the present appellant has been shown as sole defendant. 3. The trial Court on the basis of the rival pleadings raised on either side has framed necessary issues and after analysing the available evidence on record has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.37 of 2010 on the file of the first appellate Court. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 4. On the side of the appellant/defendant the following substantial questions of law have been raised for consideration: (a) Whether the trial Court committed an illegality in pronouncing Judgment on merits under Order 17 Rule 3 of CPC after the counsel for the appellant/defendant reported 'no instructions'? (b) Whether the trial Court ought to have issued notice to the appellant/defendant after the counsel for https://hcservices.ecourts.gov.in/hcservices/ 2 the appellant/defendant reported 'no instructions' as per the law laid down by the Honourable Supreme Court of India in AIR 1993 Sc 1182 and 1998 (2) SCC 206 and the Honourable High Court of Madras in 2000 (1) LW 723 and 2008(2)CTC 391? (c) Whether the respondent /plaintiff is legally entitled to raise two inconsistent pleas of common ownership of the pathway and easement? (d) Whether the first appellate Court has framed necessary and proper points for determination of the appeal under Order 41 Rule 31 of CPC? (e) Whether the Courts below had properly applied the provisions of the Limitation Act, 1963 for granting the decree for mandatory injunction? 5. In the grounds of appeal it has been stated that both the trial Court as well as first appellate Court have failed to understand the situation to the effect that the counsel of the appellant/defendant has reported no instruction in the trial Court itself and further no oral and documentary evidence have been let in on the side of the appellant/defendant. 6. On the basis of the said ground urged in the present second appeal, this Court has directed the trial Court to submit a report as to whether the counsel of the appellant/defendant has actually reported no instruction. In pursuance of the same, the trial Court has submitted a report, wherein it has been clearly stated that the counsel of the appellant/defendant has reported no instruction on 03.12.2007. But in the preamble of the Judgment rendered by the trial Court, it is mentioned like thus: This suit coming before me for final hearing on 03.12.2007 in the presence of Thiru A.Senthilvel, Advocate for the plaintiff and of Thiru G.Ramapandian, Advocate for the defendant and on perusal of records and hearing the arguments of both sides and having stood over for consideration till this day this Court delivered the following Judgment. 7. As per the report submitted by the trial Court, it is easily discernible that on 03.12.2007 itself the learned counsel appearing for the appellant/defendant has reported no instruction. But in the preamble of the Judgment rendered by the trial Court, it is mentioned as if the counsel of the plaintiff as well as defendant have advanced respective argument on 03.12.2007. Therefore, the materials found in the preamble of the Judgment rendered by the trial Court is totally erroneous and further on the side of the appellant/defendant no oral and documentary evidence have been let in. 8. The trial Court has proceeded on the basis of the available evidence on record and the first appellate Court has also followed the approach made by the trial Court. 9. The present suit has been instituted for the reliefs of declaration and mandatory injunction. Considering the nature of the reliefs sought for in the present suit, this Court is of the view that sufficient opportunity must be given to the appellant/defendant. Under https://hcservices.ecourts.gov.in/hcservices/ 3 the said circumstances, the concurrent Judgments and decrees passed by the Courts below are liable to be set aside and Original Suit No.21 of 2005 is liable to be remitted to the file of the trial Court. Since Original Suit No.21 of 2005 is liable to be remitted to the file of the trial Court, the substantial questions of law raised on the side of the appellant/defendant need not be decided. 10. In fine, this second appeal is allowed without cost at the stage of admission. Connected Miscellaneous petition is closed and the concurrent Judgments and decrees passed by the Courts below are set aside and Original Suit No.21 of 2005 is remitted to the file of the District Munsif Court, Sivagangai. Both parties are directed to make appearance by 22.07.2011. The appellant/defendant is directed to pay Rs.5,000/- (Rupees five thousand only) to the respondent/plaintiff and to that effect a memo has to be filed. The trial Court is directed to proceed further only on the basis of memo to be filed on the side of the appellant/defendant. The Court fee paid on the appeal memorandum is ordered to be refunded forthwith. The Registry is directed to send all records immediately. Sd/- Assistant Registrar (Records) /True copy/ Sub Assistant Registrar To 1.The Sub Judge, Sivagangai 2.The District Munsif, Sivagangai. +1CC TO MR.T.R.JEYAPALAN, ADVOCATE SR.20997 +1CC TO MR.V.NAGENDRAN, ADVOCATE SR.21035 Copy to The Section Officer, VR SEction, Madurai Bench of Madras High Court, Madurai. mj SR : 15.07.2011 : 3p/6c SA (MD) No.255 of 2011 30.06.2011 https://hcservices.ecourts.gov.in/hcservices/