K.Savithri vs Sathyavathi Padmasenan
2021 Latest Caselaw 11027 Mad

                                                            1

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 29.04.2021

                                                          Coram

                                      The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                                               C.R.P.(PD) No.989 of 2021
                                                          and
                                             C.M.P.Nos.7923 & 7928 of 2021

                     K.Savithri
                                                  ..    Petitioner/Petitioner/Plaintiff

                                                           Vs

                     1.Sathyavathi Padmasenan
                     2.K.Sadanandan
                     3.K.Sachidanandan
                                            ..         Respondents/Respondents/Defendants

                               Civil Revision Petition filed under Article 227 of the Constitution
                     of India to set aside the fair and decreetal order dated 22.01.2021 passed
                     inn I.A.No.1 of 2019 in O.S.No.3984 of 2014 on the file of the XVI
                     Additional City Civil Court, Chennai and allow the I.A.No.1 of 2019 and
                     thereby pass an order of Preliminary decree as prayed for in the suit on
                     the basis of the admission made by the 2nd respondent.


                                      For Petitioner            ..   Mr.P.V.Balasubramaniam

                                      For Respondent            ..   No appearance




https://www.mhc.tn.gov.in/judis/
                                                              2

                                                         ORDER

This revision petition has been filed by the plaintiff in

O.S.No.3984 of 2014 which is now pending on the file of the XVI

Additional City Civil Court, Chennai. The plaintiff had filed an

application under Order XII Rule 6(1) of CPC calling upon the Court to

pass a Judgment and Decree allotting 1/4th share in the schedule to the

plaint based on an admission by DW-1 during cross-examination on

13.09.2019. The said application was taken on file as I.A.No.1 of 2019

and orders were passed on 22.01.2021which is the subject matter of the

present Revision Petition.

2.The suit in O.S.No.3984 of 2014 had been instituted by the

plaintiff K.Savithri against her sister and two brothers seeking division

into four shares of the property mentioned in the schedule which is

situated in Ayanavaram, Chennai.

3.It is claimed that there are only four sharers to the suit property.

There is also a Will which had been executed by the father by which also

the parties to the suit will get 1/4th share in the suit property. The said

Will had been registered as Document No.11 of 1995 dated 27.01.1995. https://www.mhc.tn.gov.in/judis/

The said Will is neither probated nor decision obtained as on date and it

is informed by Mr.P.V.Balasubramaniam, learned counsel for the

revision petitioner that such proceedings have been initiated.

4.However, the suit proceeded. In the said suit an application in

I.A.No.7 of 2015 came to be filed by the 2nd defendant in the suit. The

relief sought in the said application which had been filed under Order VII

Rule 11 of CPC was to reject the plaint taking advantage of sub clause

(a) (b) and (d) of Order VII Rule 11 of CPC. The parties had joined issue

with the said application and an order was passed on 21.03.2017,

dismissing the said application.

5.Thereafter, the matter also came up before this Court in

C.R.P.No.1375 of 2017 and this Court had actually disposed of the Civil

Revision Petition, but in effect had affirmed the dismissal of the said

application, and had observed that the Trial Court shall take up the issue

of valuation of the suit as a preliminary issue and decide the same within

a period of three months.

https://www.mhc.tn.gov.in/judis/

6.The Trial Court then took up that task assigned to it. In the

course of deciding such an issue, witnesses were examined in chief and

also cross-examined. The 2nd defendant K.Sadanandan, who was

examined as DW-1 in the said proceedings, had, according to the present

petitioner / plaintiff admitted during cross-examination that each one of

the parties are entitled for 1/4th undivided share in the suit schedule

property. He had also admitted that the plaintiff is also entitled for 1/4th

undivided share in the suit property.

7.I really hope that cross-examination had ended, at that particular

point of time. For reasons best known, cross-examination continued.

That particular admission was put promptly as a suggestion and a denial

was issued claiming that the plaintiff was not entitled to 1/4 th share and

any suggestion to that extent are not correct and denied.

8.The learned Judge had two separate sets of statements by

witness under oath. In the first portion, he had admitted that the revision

petitioner/plaintiff was entitled for 1/4th share in the suit schedule

property. Later in the course of the cross-examination, the witness had

denied such suggestion that the plaintiff would be entitled for 1/4 th share

in the suit schedule property.

https://www.mhc.tn.gov.in/judis/

9.However, taking advantage of the admission, the petitioner

herein filed I.A.No.1 of 2019 calling upon the Court to pass a Judgment

and Decree under Order XII Rule 6(1) of CPC. The learned Judge

refused to accept such a course holding as aforesaid, that two statements

were made and therefore stated that the party should go through the

process of trial and then only claim the allotted share in the property.

10.In view of that fact it is correct that there are two following

statements. I find no error in the order of the learned Judge. However, it

is stated by Mr.P.V.Balasubramaniam, learned counsel for the revision

petitioner, that the petitioner / plaintiff is advanced in age and that factor

is taken advantage by his siblings.

11.I hope that the statement that advanced age is taken advantage

is not correct. Anyway since such a statement is made, let the Trial Court

Judge go through the process of trial. If at all there is confluence of mind

in the thought process regarding appointment of a mediator to examine

the issue, the learned Judge may take up such offer and relegate the

parties to mediation.

12.I am confident that the plaintiff and the defendants would

accept for mediation. It is a voluntary process. It is a process were parties

themselves come to an understanding with respect to the nature of https://www.mhc.tn.gov.in/judis/

resolution to be taken forward and with respect to the issues raised. The

mediator only can assist them in that process.

13.During the course of either deciding the jurisdiction of the

Court as directed by this Court in the earlier Civil Revision Petition or

during the course of trial, if wisdom hopefully dawns on the parties in

their interest to settle the issues and it is not to their advantage to further

litigate. I am confident that the learned Judge would take such a

suggestion and advise the parties to resolve their disputes through

mediation. The learned Judge shall follow the directions given in the

earlier Civil Revision Petition in C.R.P.No.1375 of 2017 by order dated

14.08.2018, wherein, a direction was given to take up the issue of

valuation of the suit as a preliminary issue was also given.

14.With the said observations, the Civil Revision Petition is

dismissed. No order as to costs. Consequently, the connected Civil

Miscellaneous Petitions are closed.

29.04.2021 Internet:Yes/No Index:Yes/No smv

To:- The XVI Additional City Civil Court, Chennai.

https://www.mhc.tn.gov.in/judis/

C.V.KARTHIKEYAN,J.

smv

C.R.P.(PD) No.989 of 2021

29.04.2021

https://www.mhc.tn.gov.in/judis/