##PAGE1##

2026:MHC:389

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Order reserved on : 05.01.2026 Order pronounced on : 30.01.2026

CORAM

THE HONOURABLE MR JUSTICE P.B. BALAJI

CRP.No.5048 of 2025

& CMP.No.25455 of 2025

Thulasi Naicker ... Petitioner

Vs.

1.Chitra

2.Meenakshi

3.Gayathri

4.Kanchana

5.Gopalakrishnan ... Respondents

Prayer: Civil Revision Petition filed under Article 227 of Constitution of

India, to set aside the fair and decreetal order dated 24.08.2023 made in

I.A.No.2 of 2022 in A.S.No.12 of 2016 on the file of the Additional Sub-

Judge, Chengalpattu.

For Petitioner : Mr.S.D.Venkateswaran

for S.Ruban Prabu

For Respondents : Mr.V.K.Sathiamurthy

1/10

https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/02/2026 05:47:40 pm )

ORDER

The appellant, aggrieved by dismissal of his application under Order

XLI Rule 19 of the Code of Civil Procedure, has come up by way of this

revision petition.

2.I have heard Mr.S.D.Venkateswaran for Mr.S.Ruban Prabu, learned

counsel for the petitioner and Mr.V.K.Sathiamurthy, learned counsel for the

respondents 1 to 5.

3.Mr.S.D.Venkateswaran, learned counsel for the revision petitioner

would submit that the revision petitioner, as plaintiff, had filed a suit in

O.S.No.166 of 2002 and the said suit came to be dismissed on 31.10.2014

by the District Munsif Court, Chengalpet. He would further state that

challenging the judgment and decree, A.S.No.12 of 2016 was filed.

However, pending the said appeal, in view of the non-appearance of the

petitioner/his counsel, the First Appellate Court had proceeded to decide the

appeal on merits. Mr.S.D.Venkateswaran, learned counsel for the petitioner,

inviting my attention to Order XLI Rule 17 of C.P.C, would contend that if

2/10

https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/02/2026 05:47:40 pm )

the appellant was absent on the date fixed for hearing the appeal, then the

only course open to the Appellate Court was to dismiss the appeal for non-

prosecution. In this regard, the learned counsel for the revision petitioner

would rely on the decision of the Hon'ble Supreme Court in Prabodh

ch.Das and another versus Mahamaya Das and others reported in 2020 (1)

CTC 237.

4.The learned counsel for the revision petitioner would further state

that the mere fact that the Appellate Court has recorded in the judgment that

the counsel for the appellant has argued the appeal, should not be put against

the appellant and the appellant be made to suffer for the fault of his counsel.

He would also refer to the decision of this Court in Prema and another

versus Murugappan, reported in 2017 (5) LW 158, where this Court

referring to Order XLI Rule 17 of CPC, held that the first appeal could have

been dismissed only for non-prosecution and could not have been decided

on merits, set aside the order passed by the District Court and restored the

appeal to file. Relying on the said ratio, the learned counsel for the petitioner

submits that the revision under Article 227 is very well maintainable as well.

He would therefore pray for the revision being allowed.

3/10

https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/02/2026 05:47:40 pm )

5.Per contra, Mr.V.K.Sathiamurthy, learned counsel appearing for the

respondents would first and foremost attack the very maintainability of the

revision petition. In this context, he would refer to the dates on which the

decree came to be passed, that is dismissing the appeal and also to the date

on which the revision has been filed before this Court.

6.Referring to Order XLIII Rule 1(t) of CPC, Mr.V.K.Sathiamurthy

would contend that when an order refusing to allow an application filed

under Order XLI Rule 19 of CPC is specifically made appealable under the

Code and Article 123 also provides for a 30 day period of limitation for

challenging the said order, the petitioners have mischievously bypassed the

statutory remedy and straight away approached this Court under Article 227

of the Constitution of India.

7.It is the further submission of the learned counsel for the

respondents that the ap