Madras High Court
Valliammal vs Kumar @ Palaniappan on 30 June, 2021
CRP.No.384/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 30.06.2021
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
CRP [PD] .No.384/2019
& CMP.No.2646/2019
[Video Conferencing]
1.Valliammal
2.Kandhayee .. Petitioners /
Plaintiffs
Versus
1.Kumar @ Palaniappan
2.Karthick
3.Pappathi
4.Rajathy .. Respondents /
Defendants 6 to 9
Prayer : - Civil Revision Petition filed under Article 227 of the
Constitution of India praying to set aside the fair and decreetal order dated
31.10.2018 in CMA No.11/2018 on the file of the learned Additional
District [Fast Track] Judge, Mettur, reversing the order dated 16.07.2018 in
IA.No.228/2018 in OS.No.90/2018 on the file of the learned Subordinate
Judge, Mettur and allow the Civil Revision Petition.
1
https://www.mhc.tn.gov.in/judis/
CRP.No.384/2019
For Petitioners : Mr.R.Subramanian
For Respondents ; Mr.P.Mani
ORDER
(1) The plaintiffs in OS.No.90/2018, now pending on the file of the Sub
Court at Mettur, are the revision petitioners herein. The plaintiffs are
sisters. Their brother is the 5th defendant Palanisamy, in the suit. All
three of them are the children of one Sadayan, who died in the year
2000. Their mother, Veeralakshmi, had died subsequent to the death
of Sadayan. The 5th defendant Palanisamy appears to have had a
second wife and through that lady, defendants 6, 7, 8 and 9 had been
born. Defendants 6 to 9 filed OS.No.160/2002 before the learned
District Munsif at Mettur, against their father Palanisamy and one of
his brothers, seeking partition and separate possession.
(2) It is the grievance of Mr.R.Subramanian, learned counsel appearing
for the revision petitioners that though the elder brother of Sadayan
was impleaded, the daughters of Sadayan, namely revision petitioners
herein were not impleaded as defendants in the said suit. Therefore, it
is claimed that the revision petitioners/daughters of Sadayan were not
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CRP.No.384/2019
aware of either pendency of OS.No.160/2002 or of its subsequent
proceedings. The suit proceeded and a judgment was passed on
31.07.2008. Thereafter, an appeal was filed in AS.No.47/2008 before
the Sub Court at Mettur, wherein a decree was granted. Pursuant to
such decree, I am informed that Final Decree application has been
filed and thereafter, to put in effect the apportionment of properties,
REP.No.11/2016 had also been filed and is now pending on the file of
the Court of District Munsif, Mettur.
(3) In the meanwhile, the plaintiffs herein had filed a suit in
OS.No.90/2018 before the Sub Court at Mettur, seeking partition and
separate possession. They claimed to be in possession of the
properties which were also the subject matter of properties in
OS.No.160/2002/REP.No.11/2016. They filed IA.No.228/2018
seeking to protect their possession. They also claimed that they had
not been included as parties in OS.No.160/2002 and therefore,
claimed that the decree passed thereunder, was not binding on them.
Primarily they are interested in protecting their possession.
IA.No.228/2018 came up for consideration before the Sub Court at
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CRP.No.384/2019
Mettur, and vide order dated 16.07.2018, injunction was granted,
protecting possession. This order was taken up in appeal before the
learned Additional Judge [Fast Track Court], at Mettur in CMA
No.11/2018 and by an order dated 31.10.2018, the Civil
Miscellaneous Appeal was allowed and the grant of injunction by the
Trial Court was reversed and that order, in effect gave rise to the
filing of the present Civil Revision Petition.
(4) The learned counsel for the revision petitioners expressed anguish at
the fact that though the petitioners are sisters of the 5th defendant
Palanisamy, they were not impleaded as defendants in
OS.No.160/2002 and therefore, they were totally unaware of the said
proceedings and therefore, claimed that any decree passed pursuant to
such suit, either by the Trial Court or by the First Appellate Court,
would not directly bind on the revision petitioners herein. It is also
the contention of the learned counsel that the petitioners are in
possession and they had also produced relevant documents at the time
when IA.No.228/2018 was argued before the learned Subordinate
Judge at Mettur and those documents were properly appreciated by
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CRP.No.384/2019
the learned Subordinate Judge and an order of injunction was also
granted, protecting their possession. The learned Judge had not just
stopped with granting of an order of injunction, but rather, had also
granted a direction that the petitioners possession should also be
protected even during the proceedings in REP.No.11/2016 pending
on the file of the learned District Munsif at Mettur. This direction is
questionable. But, let me not enter into a discussion on that particular
aspect.
(5) Mr.P.Mani, learned counsel appearing for the respondents, on the
other hand, stated that the petitioners can very well participate in the
Execution Proceedings and file necessary application if they claim to
be in possession and a burden will then be cast on the learned District
Munsif, to examine the said application in its true spirit.
(6) The learned counsel for the petitioners, while replying, however
stated that on the other hand, a direction can be given to the learned
Subordinate Judge at Mettur, to dispose of OS.No.90/2018 within a
specific period of time and till such time, further proceedings in
REP.No.11/2016 could be kept in abeyance. If the plaintiffs' claim
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for partition is upheld, then naturally, further proceedings in
REP.No.11/2016 would be rendered otiose since they are not parties
to the Execution Proceedings nor were they parties to the suit or in
the First Appeal or in the Final Decree application.
(7) In view of the two parallel proceedings pending, I would rather issue
the following directions:-
(a) Let the learned Subordinate Judge, Mettur, devote attention
to dispose of OS.No.90/2018, where I am informed
pleadings have been completed and is at the stage of
examination of witnesses. Let the learned Judge invite the
parties to graze the witness box and commence the trial. Let
the trial proceedings be conducted on day-to-day basis.
When adjournments are sought, the learned Judge may grant
a maximum of five working days in between any two
adjournments and also ensure that adjournments are not
granted for the same reason on not more than two occasions.
If that procedure is followed, then any trial can be
controlled by any Court. At any rate, let the learned Judge
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give a finality to OS.No.90/2018, at least insofar as the Sub
Court is concerned on or before 31.08.2021. I hope and I
am confident that plaintiffs and defendants in the said suit
would also cooperate with the said proceedings. If trial
could not commence owing to COVID pandemic, at the
instance of the High Court, the conclusion of the trial
should be completed on or before 30.09.2021.
(b) The plaintiffs are at liberty, if they are so advised and if they
feel it appropriate to file relevant application in REP
No.11/2016 under the relevant provisions and take
advantage of various provisions of the Code of Civil
Procedure and if any such application is filed, the learned
District Munsif at Mettur, may take it up, examine the
contents and proceed in accordance with law in giving
finality to such application. It is only appropriate that due
diligence is shown by the learned District Munsif, in dealing
with any of such application because it is claimed and it is
not disputed that the revision petitioners are members of the
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family, though daughters.
(c) I am confident that if any application is filed, the learned
District Munsif at Mettur, would take up and dispose it of at
the earliest. The revision petitioners are given time till
31.07.2021 to take a decision whether they are going to file
such an application or not and thereafter, if such application
is filed, the learned District Munsif at Mettur, may dispose it
of at the earliest following due procedure.
(8) With the above directions, the Civil Revision Petition stands disposed
of. No costs. Consequently, the connected miscellaneous petition is
also closed.
30.06.2021
AP
Internet : Yes
To
1.The District Munsif, Mettur.
2.The Subordinate Judge, Mettur.
https://www.mhc.tn.gov.in/judis/
CRP.No.384/2019
C.V.KARTHIKEYAN, J.,
AP
CRP.No.384/2019
30.06.2021
https://www.mhc.tn.gov.in/judis/
