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V. Santhanam Iyengar Vs. Srinivasaraghavan, Minor by His Mother and Next Friend Ponnammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1919)37MLJ661; (1919)37MLJ693
AppellantV. Santhanam Iyengar
RespondentSrinivasaraghavan, Minor by His Mother and Next Friend Ponnammal and ors.
Excerpt:
- - 3. as the pleading and grounds of appeal have been printed, i think that the best thing to do will be to direct that the application for leave to file additional grounds and amend the valuation be posted before the bench hearing the appeal......allowing the appellants to file an additional ground of appeal and to amend the valuation of the appeal. notice of the application to amend was not given to the 6th respondent and the order was passed without hearing him. order 41 -a rule 2, clause 2 of the code of civil procedure provides that unless otherwise ordered the period for respondent to enter appearance shall be 25 days from the service of notice upon him, and that, if he wants to appear and defend the appeal, he should enter appearance within that period. rule 42 of the appellate side rules provides that notice of an application to amend a memorandum of appeal should be given to all parties who have entered appearance. i do not think that rule 42 prevents a party who has not been served with the notice on the ground that he.....
Judgment:
ORDER

Kumaraswami Sastri, J.

1. This is an application to set aside the order passed by me on the 12th July 1918 allowing the appellants to file an additional ground of appeal and to amend the valuation of the appeal. Notice of the application to amend was not given to the 6th Respondent and the order was passed without hearing him. Order 41 -A Rule 2, Clause 2 of the Code of Civil Procedure provides that unless otherwise ordered the period for respondent to enter appearance shall be 25 days from the service of notice upon him, and that, if he wants to appear and defend the appeal, he should enter appearance within that period. Rule 42 of the Appellate Side Rules provides that notice of an application to amend a memorandum of appeal should be given to all parties who have entered appearance. I do not think that Rule 42 prevents a party who has not been served with the notice on the ground that he has not entered appearance from applying to set aside the order passed exparte. If any penalty is attached for his not entering appearance within the time limited, that penalty can only arise when the period fixed for entering appearance has expired. It will be against all principles of equity to hold that a person should be punished for not entering appearance by losing his right to receive notice of all interlocutory applications, when such applications are made within the time limited for his entering appearance. In the present case, the applicant was declared a major on the 27th March 1918 and he got notice of appeal in the usual course entitling him to enter appearance on the 8th July. The petition to amend the memorandum of appeal was filed on the 27th April and no notice was sent to him, the appellant relying on Rule 42 referred to above.

2. I am of opinion that the 6th Respondent ought to have had notice of the application and that he is entitled to have the ex parte order set aside so far as he is concerned and to be heard on the merits. I accordingly set aside the order of the 12th July.

3. As the pleading and grounds of appeal have been printed, I think that the best thing to do will be to direct that the application for leave to file additional grounds and amend the valuation be posted before the bench hearing the appeal. The additional ground needs no additional printing, as the ground raises a pure question of law, and as the appeal is filed in forma pauperis, no delay need be caused by the amendment of the valuation.

4. There will be thus no necessity for any adjournment of the appeal by reason of the petition being posted for hearing with it Leave is granted to all parties to file such additional affidavits as they may consider necessary in one month.

5. I make no order as to costs.


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