Allowed

M.Munavvara, v. a.Amanullah

Madras HC3 Apr 2014CRP(MD)/71/2014

Case brief

AI extract

What is this about?

The Madras High Court consolidated a civil revision petition challenging an order staying civil proceedings and a transfer petition to join two suits. The court allowed both petitions, set aside the stay order, dismissed the interim application, and ordered the transfer of the second suit to be tried simultaneously with the first in a single court.

What did the court decide?

Set aside the interlocutory order dated 06.09.2013; dismissed Section 151 application; transfer the suit in O.S.No.467 of 2012 to be tried simultaneously with O.S.No.166 of 2012.

M.Munavvara, Vs a.Amanullah — Property and Title | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.04.2014 CORAM:

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THE HONOURABLE MR.JUSTICE T.MATHIVANAN

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C.R.P.(PD) (MD) No.71 of 2014 and M.P.(MD) Nos.1 & 2 of 2014 and Tr.C.M.P.(MD) No.338 of 2013

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M.Munavvara ... Petitioner in C.R.P.(PD)(MD) No.71 of 2014 A.Amanullah ... Petitioner in Tr.C.M.P (MD) No.338 of 2013

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-vs-

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A.Amanullah ... Respondent in C.R.P.(PD) (MD) No.71 of 2014

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1.A.Kurshith Begam 2.A.Meharunnissa

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3.N.A.Mohammed Yusuf Ali

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4.M.Munavera ... Respondents in Tr.C.M.P (MD) No.338 of 2013

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PRAYER (in C.R.P.(PD) (MD) No.71 of 2014): Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal orders dated 06.09.2013 and made in I.A.No.89 of 2013 in O.S.No.166 of 2012, on the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli.

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PRAYER (in Tr.C.M.P (MD) No.338 of 2013): Transfer Civil Miscellaneous Petition is filed under Section 24 of the Code of Civil Procedure, to withdraw the suit in O.S.No.467 of 2012, pending on the file of the learned 3^rd Additional District Munsif, Tiruchirappalli, to the file of the learned 1^st Additional District Judge, Tiruchirappalli.

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C.R.P.(PD) (MD) No.71 of 2014:

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For Petitioner : Mr.M.Murugaamannar For Respondent : Mr.R.Suresh Kumar

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Tr.C.M.P (MD) No.338 of 2013:

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For Petitioner : Mr.R.Suresh Kumar

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For Respondents : Mr.M.Murugaamannar for R2 & R3 No appearance for R1 & R4

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C O M M O N O R D E R

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The memorandum of civil revision petition in C.R.P.(PD) (MD) No.71 of 2014 has been directed against the fair and decreetal orders dated https://hcservices.ecourts.gov.in/hcservices/ 06.09.2013 and made in I.A.No.89 of 2013 in O.S.No.166 of 2012, on the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli. The transfer civil miscellaneous petition in Tr.C.M.P (MD) No.338 of

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2013 has been filed by the respondent in the civil revision petition, who is the plaintiff in the suit in O.S.No.467 of 2012, seeking the relief of withdrawal of the suit in O.S.No.467 of 2012 from the file of the learned 3^rd Additional District Munsif, Tiruchirappalli, and transfer the same to the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli, to be tried along with the suit in O.S.No.166 of 2012, pending on his file.

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With the parties as well as the issue involved in both the memorandum of civil revision petition and the transfer civil miscellaneous petition are one and the same, these two petitions have been consolidated together, heard jointly and disposed of in this common order.

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The revision petitioner in C.R.P.(PD) (MD) No.71 of 2014 is the plaintiff in the suit in O.S.No.166 of 2012, on the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli, whereas the respondent is the first defendant therein and the petitioner in the transfer civil miscellaneous petition in Tr.C.M.P (MD) No.338 of 2013 is the plaintiff in the suit in O.S.No.467 of 2012, on the file of the learned 3^rd Additional District Munsif, Tiruchirappalli, whereas the revision petitioner in the above said civil revision petition has been shown as fourth defendant in the suit in O.S.No.467 of 2012.

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On perusal of the records, it is revealed that the revision petitioner has filed the suit in O.S.No.166 of 2012, as against the respondent in the civil revision petition as well as against two other defendants, seeking the relief of declaration to declare that she is the absolute owner of the suit property and also for the consequential relief of recovery of possession.

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It appears that the respondent in the civil revision petition, who is the first defendant in the suit in O.S.No.166 of 2012, is the maternal grandfather of the plaintiff. The second defendant in the said suit is none other than the sister of the third defendant in the suit and the third defendant is the mother of the revision petitioner/plaintiff. The said suit was contested by the respondent/first defendant and no reference is available as to whether the other defendants viz., D2 and D3 in the said suit remained ex parte or not, but their written statement is not available on record.

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From the perusal of the averments of the affidavit filed in support of the interlocutory application in I.A.No.89 of 2013 it reveals that the revision petitioner/plaintiff had preferred a petition before the Revenue Divisional Officer, Tiruchirappalli, under the provisions of Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and that the Revenue Divisional Officer had passed an order on 24.12.2012 and thereby revoked the settlement deed dated 12.07.2000.

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In this connection, the respondent/first defendant had filed a writ petition in W.P.(MD) No.14087 of 2012, before this Court, https://hcservices.ecourts.gov.in/hcservices/ challenging the said order dated 24.12.2012, in Na.Ka.A4-7749-2011, passed by the Revenue Divisional Officer, Tiruchirappalli. In the said writ petition, an interim order was passed by this Court, against which

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a writ appeal in W.A.(MD) No.1003 of 2012, was filed before this Court and on account of this reason, the respondent/first defendant in the suit in O.S.No.166 of 2012 had taken out the interlocutory application in I.A.No.89 of 2013, under Section 151 of the Code of Civil Procedure, to await the outcome of the writ petition in W.P.(MD) No.14087 of 2012, pending before this Court. This interlocutory application was vigorously resisted by the revision petitioner/plaintiff. Despite her objections, the said interlocutory application was allowed on 06.09.2013. Challenging the legality of the said order dated 06.09.2013 passed by the learned 1^st Additional District Judge (PCR), Tiruchirappalli, the revision petitioner/plaintiff in the suit in O.S.No.166 of 2012 has preferred this memorandum of civil revision petition.

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It is obvious to note here that the respondent/first defendant in the suit in O.S.No.166 of 2012 appears to have filed another suit in O.S.No.467 of 2012, on the file of the learned 3^rd Additional District Munsif, Tiruchirappalli, against four defendants, including the revision petitioner/plaintiff (in O.S.No.166 of 2012) as the 4^th defendant, seeking the relief of cancellation of the compromise decree dated 17.02.2010 and made in O.S.No.1714 of 2000, on the file of the learned 3^rd Additional District Munsif, Tiruchirappalli, in respect of the suit property therein and also for consequential relief of injunction.

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Mr.M.Murugaamannar, learned counsel appearing for the revision petitioner/plaintiff has argued that the interlocutory application in I.A.No.89 of 2013 itself is not maintainable either under law or on facts on the simple ground that such a prayer to await the outcome of the writ petition in W.P.(MD) No.14087 of 2012, which is pending before this Court, is not at all sustainable or tenable. He has also argued that Section 151 of the Code of Civil Procedure gives the inherent powers to the Court and therefore invariably the particular Section cannot be invoked in respect of all the reliefs. Further, he has argued that when a specific provision is available in the Code of Civil Procedure, the inherent jurisdiction of this Court, under Section 151 of the Code of Civil Procedure, cannot be invoked to maintain such a prayer.

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He has also drawn the attention of this Court to Section 10 of the Code of Civil Procedure and in this connection he has continued that the writ petition cannot be brought under the ambit and amplitude of Section 10 of the Code of Civil Procedure and therefore on this ground alone the said interlocutory application ought to have been dismissed, but the Trial Court had failed to consider this aspect and therefore it resulted in a wrong decision, which is liable to be set aside.

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In support of his contention, he has placed reliance upon the following decisions:

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i. National Institute of Mental Health & Neuro Sciences v. C.Parameshwara , reported in 2005 SAR (Civil) 83 ; and

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ii. Subramanian.R. v. Arulmighu Dhandayuthapani Swamy https://hcservices.ecourts.gov.in/hcservices/ Thirukkoil , reported in 2007 (5) CTC 781 .

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On the other hand, Mr.R.Suresh Kumar, learned counsel appearing for the respondent/first defendant, has argued that the interlocutory application in I.A.No.89 of 2013, under Section 151 of the Code of Civil Procedure, is very well maintainable and since the result of the present suit is subject to the outcome of the writ petition in W.P.(MD) No.14087 of 2012, which is pending on the file of this Court, the respondent/first defendant was constrained to file the said interlocutory application and that the impugned order did not suffer from any infirmity and therefore he has urged this Court to dismiss the memorandum of civil revision petition.

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It may be more relevant to note here that when this memorandum of civil revision petition came up for admission on 24.01.2014, this Court has granted an order of interim stay of the order of interim stay passed by the Trial Court and this Court has also observed that it is open to the Trial Court to proceed with the trial.

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As herein before stated, the respondent/first defendant has also filed a transfer civil miscellaneous petition in Tr.C.M.P.No.338 of 2013 to withdraw the suit in O.S.No.467 of 2012, which is filed by him, from the file of the learned 3^rd Additional District Munsif, Tiruchirappalli and transfer the same to the file of the learned 1^st Additional District Judge, Tiruchirappalli, to be tried along with the suit in O.S.No.166 of 2012, which is filed by the revision petitioner herein.

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Mr.R.Suresh Kumar, learned counsel, during the course of his argument, has submitted that this memorandum of civil revision petition might be allowed and the impugned order dated 06.09.2013 be set aside and the interlocutory application in I.A.No.89 of 2013 be dismissed, for which he has no objection. At the same time, he has submitted that the suit in O.S.No.467 of 2012, filed by the respondent/first defendant, on the file of the learned 3^rd Additional District Munsif, Tiruchirappalli, might be ordered to be withdrawn and transferred to the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli, to be tried along with the suit in O.S.No.166 of 2012, which is filed by the revision petitioner/plaintiff, for which the revision petitioner/plaintiff has expressed that he has no objection.

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Keeping in view of the submissions made by the both learned counsels, this Court finds that to meet the ends of justice, both the memorandum of civil revision petition as well as the transfer civil miscellaneous petition be allowed.

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In the result,

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(i) The memorandum of civil revision petition in C.R.P. (PD) (MD) No.71 of 2014 is allowed and the fair and decreetal orders dated 06.09.2013 and made in I.A.No.89 of 2013 in O.S.No.166 of 2012, on the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli, are set aside and the interlocutory application in I.A.No.89 of 2013 is dismissed. And

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https://hcservices.ecourts.gov.in/hcservices/

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(ii) The transfer civil miscellaneous petition in Tr.C.M.P.No.338 of 2013 is allowed and the suit in

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O.S.No.467 of 2012 is ordered to be withdrawn from the file of the learned 3^rd Additional District Munsif, Tiruchirappalli and transfer the same to the file of the learned 1^st Additional District Judge (PCR), Tiruchirappalli, to be tried (*)simultaneously . The learned 3^rd Additional District Munsif, Tiruchirappalli, is hereby directed to transmit the entire records, pertaining to the suit in O.S.No.467 of 2012 to the file of the transferee Judge viz., the learned 1^st Additional District Judge, Tiruchirappalli, within a week's time, from the date of receipt of a copy of this Order. On receipt of the records pertaining to the above said suit, the learned 1^st Additional District Judge (PCR), Tiruchirappalli, being the transferee Judge, is hereby directed to dispose of both the suits (*)simultaneously , on merits and in accordance with law, within a period of two months, thereafter, on day-to-day basis.

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Consequently, connected miscellaneous petitions are closed. No costs.

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Sd/-

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Assistant Registrar(A.E.,)

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(*) CORRECTED AS PER THE ORDER OF THE COURT DATED 9.4.2014 AND MADE HEREIN

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/TRUE COPY/

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Sub Assistant Registrar