M. THILLAIKKARASI Vs. KALAVATHI

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been filed against the decree of the lower Appellate Court dated 15.07.2010 made in A.S. No. 75 of 2006. As the Civil Miscellaneous Appeal was sought to be filed against the decree passed in an appeal, a question was raised by the Registry as to its maintainability. It was clarified that though the Appellate Court's judgment resulted in a decree, the same was, in effect nothing but an order of remand, since the order of the trial court rejecting the plaint was reversed and the trial court was directed to take the plaint on file and number it as a suit. Accepting the clarification, the Civil Miscellaneous Appeal was taken on file.

(2.) Notice before admission was served on the respondents and the respondents are also represented by the counsel. Mr.A.Thiagarajan, learned senior counsel appearing for the counsel on record for the appellant and Mr.T. Murugamanikkam, learned counsel for the respondents submit that arguments on merits can be heard and the Civil Miscellaneous Appeal itself can be disposed of. Accordingly, the arguments advanced on behalf of the appellant and also on behalf of the respondents are heard. The grounds of appeal and the other materials are also perused.

(3.) A suit in O.S. SR. No.13287 of 2003 was sought to be filed by the respondents herein, against the appellant, to set aside the decree dated 27.05.1995 made in O.S. No.284 of 1995 on the file of the Additional Subordinate Judge, Salem. The said plaint was rejected by the Vacation Civil Judge, Salem by an order dated 21.05.2003. The said order was challenged before the First Additional District Judge, Salem in A.S. No.75 of 2006. The learned First Additional District Judge, Salem, allowed the appeal setting aside the order passed by the Vacation Civil Judge and directed the trial court namely, the Subordinate Court, Salem to take up the plaint on file and number it as a suit. As against the said decree, stating that the said decree passed by the lower Appellate Court is nothing but an order of remand, the present Civil Miscellaneous Appeal has been filed, by the appellant who is shown as the defendant in the above said un-numbered plaint.