Madras High Court
Metroware Housing (P) Ltd vs Deivanal on 30 June, 2021
S.A.Nos.1028 & 1029 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.06.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.Nos.1028 & 1029 of 2019
and
C.M.P.Nos.3881 of 2020, 24280 of 2019 & 24282 of 2019
S.A.No.1028 of 2019
Metroware Housing (P) Ltd.,
Represented by its Director
P.Sai Venkat Prasad .. Appellant
Vs.
1. Deivanal
2. Chakravarti @ Radhakrishnan @ Krishnan
3. M/s.Dhandapani & Co Ltd.,
Rep. by its Director Dhandapani
4. Arunachalam
5. Omega Special Steel Pvt. Ltd.,
Through its authorized Signatory
Shri. Murali Sundarrajan
6F, 6th Floor, M-6, Uppal Plaza
Jasola District Centre, Sarita Vihar
New Delhi - 110 025. .. Respondents
* R5 impleaded vide this judgment
1/13
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
S.A.No.1029 of 2019
M/s.Dhandapani & Co Ltd.,
Rep. by its Director
Dhandapani ... Appellant
1. Metroware Housing (P) Ltd.,
Represented by its Director
P.Sai Venkat Prasad
2. Deivanal
3. Chakravarti @ Radhakrishnan @ Krishnan
4. Arunachalam
5. Omega Special Steel Pvt. Ltd.,
Through its authorized Signatory
Shri. Murali Sundarrajan
6F, 6th Floor, M-6, Uppal Plaza
Jasola District Centre, Sarita Vihar
New Delhi - 110 025. .. Respondents
* R5 impleaded vide this judgment
Common Prayer:
Second Appeals under Section 100 of CPC to set aside the judgement
and decree in A.S.No.33 of 2018 dated 08.08.2019 on the file of the Principal
Subordinate Judge, Kancheepuram confirming the judgment and decree in
O.S.No.527 of 2014 dated 07.04.2018 on the file of the District-Munsif-cum-
2/13
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
Judicial Magistrate Court, Sriperumbudur.
For Appellant
in
S.A.Nos.1028 & 1029 of 2019 : Mr.AR.L.Sundaresan
Senior Counsel
for Mr.V.Balasubramanian
For Respondents : Mr.OM Prakash
Senior Counsel
for Mr.M.S.Rishi
for R1 & R2 in S.A.No.1028/2019
for R2 & R3 in S.A.No.1029/2019
Mr.AR.L.Sundaresan
Senior Counsel
for Mr.V.Balasubramanian
for R3 in S.A.No.1028/2019
for R1 in S.A.No.1029/2019
Mr.M.Ravichandran,
for R4 in S.A.Nos.1028 & 1029/2019
Mr.Anirudh Krishnan,
(proposed respondent)
for R5 in S.A.Nos.1028 & 1029/2019
----
COMMON JUDGMENT
When the captioned second appeals and captioned CMPs were taken
up, an interesting scenario unfurled.
2. Owing to aforementioned interesting scenario, captioned matters are
now to be disposed of by a consent judgment and therefore, it is not
necessary to delve much into facts and it will suffice to give a thumbnail
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
sketch of facts i.e., factual matrix in a nutshell a major part of which has been
captured in previous proceedings dated 19.04.2021 which reads as follows:
'Captioned two Second Appeals have been tagged together
as 'SA.No.1028 of 2019' ['Senior Second Appeal' for brevity] has
been filed by the second defendant in the trial Court and
'SA.No.1029 of 2019' ['Junior Second Appeal' for brevity] has
been filed by the first defendant in the trial Court.
2. Mr.V.Balasubramanian, learned counsel on record for
appellant in senior second appeal and representing the counsel on
record in junior second appeal, Mr.E.Om Prakash, learned Senior
Advocate instructed by Mr.M.S.Rishi, for two plaintiffs in the trial
Court, Mr.M.Ravichandran, learned counsel for third defendant in
the trial Court and Mr.Anirudh Krishnan, learned counsel for
'Omega Special Steel Pvt., Ltd' [proposed to be impleaded as fifth
respondent in the captioned main second appeals] are before me.
There is no representation for Dhandapani & Co., Ltd., which was
first defendant before trial Court though they have entered
appearance in the trial Court and the name of counsel has been
shown in the cause list.
3. Be that as it may, aforementioned senior counsel and
counsel submit that captioned main second appeals arise out of a
suit in OS.No.527 of 2014 on the file of 'District Munsif-cum-
Judicial Magistrate's Court, Sriperumbudur' ['trial Court' for
brevity], wherein inter alia a declaration that a sale deed dated
13.10.2011 [Ex.P9] is null and void and a consequential
injunction was the prayer. Trial Court decreed the suit on
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
07.04.2018. The second defendant alone carried the matter in
appeal i.e., a regular First Appeal under Section 96 of The Code of
Civil Procedure, 1908 vide A.S.No.33 of 2018 on the file of
'Principal Subordinate Judge, Kancheepuram' [First Appellate
Court], which also dismissed the appeal on 08.08.2019 and
confirmed the decree of trial Court.
4. As already alluded to supra, the defendants 2 and 1 are
before this Court by way of senior and junior second appeals.
Both of which have been admitted by Hon'ble Predecessor Judge
on 21.10.2019 on one substantial question of law which turns on
whether the Will dated 05.04.1956 executed by one
Mr.Balakrishna Reddiar has been proved in accordance with law.
5. Mr.Anirudh Krishnan, learned counsel submits that a
counter affidavit in the implead CMP namely CMP.No.24282 of
2019 has been filed today in the drop box and learned counsel
requests for an accommodation.
List on 27.04.2021'.
3. Before this Court proceeds further it is necessary to add that same
set of learned counsel who were before this Court on 19.04.2021 (captured in
paragraph No.2 of said proceedings) are before this Court today with one
difference and that one difference is Mr.V.Balasubramanian learned counsel
on record for appellant in Senior second appeal and representing the counsel
on record in Junior second appeal, is lead by Mr.AR.L.Sundaresan, learned
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
Senior counsel.
4. This Court deems it appropriate to add some facts and dates to the
aforementioned thumbnail sketch of facts, as they are essential and
imperative for appreciating this judgment.
5. Those additional facts and dates are that the plaint was presented in
the trial Court on 12.12.2014, but second defendant had alienated a part of
property conveyed under the 'sale deed-Ex.A9' [hereinafter 'impugned sale
deed' for the sake of convenience and clarity] being sale deed dated
13.10.2011 to one 'Omega Special Steel Private Limited' [hereinafter 'Omega'
for the sake of convenience and clarity] in and by a registered sale deed dated
21.05.2014 registered as document No.5450 of 2014 on the file of
jurisdictional Sub-Registrar being Sub-Registrar, Sriperumbudur; that the
impugned sale deed was executed by first defendant in favour of second
defendant; that the impugned sale deed conveys title to an extent of 5.38
acres or thereabouts and from and out of 5.38 acres or thereabouts extent of
1.43 acres or thereabouts has been conveyed by second defendant in favour
of Omega vide sale deed dated 21.05.2014; that it is Omega's case that it
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
gained knowledge about suit proceedings only on 21.08.2018 and therefore,
filed a suit in O.S.No.24 of 2019 on the file of the 'District Judge's Court,
Kancheepuram' ['said Court' for the sake of convenience and clarity]
assailing the decree to the extent it affects Omega; that this suit was filed by
Omega on 23.01.2019; that the suit is now pending in the said Court; that the
pleadings are yet to be completed in this suit; that Omega contends that it
will not be bound by any decree and Omega goes as far as contending that
the decree has been obtained by collusion.
6. This Court having set out additional facts and dates that are
imperative for appreciating this judgment, now reverts to the interesting
scenario that unfurled before this second appeal Court. If Omega is made a
party and heard out in the captioned Second Appeal, the scope of Omega will
be very limited, will be circumscribed by legal perimeter of Section 100 and
will be largely confined to Sub-Section 5 of Section 100 of 'The Code of
Civil Procedure, 1908' ['CPC' for brevity]. Ideally, the second defendant
should have brought to the notice of the trial Court about alienated part of
property covered under the impugned sale deed and that it is prior to the date
of presentation of the plaint. If this had been done, the present scenario
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
which is a predicament of sorts may not have arisen. In sum and substance
what is clear is, a full fledged legal drill on facts and law including Omega is
necessary to give quietus and to avoid protraction of the proceedings.
7. In the light of the aforesaid scenario/predicament, learned Senior
counsel on instructions from counsel on record consented to an order of
remand and this obviously has to be an order of remand other than one where
the First Appellate Court has disposed of the case on a preliminary point.
8. Before proceeding with the judgment further, it is necessary to make
it clear that the consent of plaintiffs for setting aside of decree and remand
will not tantamount to plaintiffs consenting for setting aside the decree on
merits. Plaintiffs consented for setting aside of decree for the limited
purpose of facilitating the remand by preserving all their rights and
contentions.
9. Captioned second appeals and captioned CMPs are disposed of on
the following terms by way of a judgment:
(a) Judgement and decree of the First Appellate Court
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
dated 08.08.2019 on the file of the Principal Subordinate
Judge's Court, Kancheepuram, is set aside by consent without
expressing any opinion on merits solely for the purpose of
facilitating a full fledged hearing on facts and law post
remand.
(b) Omega i.e., 'Omega Special Steel Private Limited' is
added as respondent No.5 in captioned second appeals and
therefore, will consequently become respondent No.5 in the
First Appellate Court.
(c) All questions, rights and contentions of parties qua
all parties are left open to be decided by the First Appellate
Court on its own merits and in accordance with law.
(d) Remand is made to the First Appellate Court by
considering the age of the lis, as the lis is already nearly 1/2 a
decade old.
(e) Therefore, the First Appellate Court being a Court of
fact albeit last Court of fact will be free to exercise all powers
available to the trial Court. Though obvious, it is made clear
that First Appellate Court shall permit Omega to file pleadings,
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
participate in the proceedings and even record evidence
oral/documentary, wherever necessary.
f) In the light of this judgment, learned counsel
appearing on behalf of Omega undertakes to withdraw
O.S.No.24 of 2019.
g) This Court is informed that there is an interim order
of status quo operating vide I.A.No.42 of 2019 in this suit and
by consent this will continue to operate till the first listing
before the First Appellate Court and it is open to the First
Appellate Court to decide extension of the same on merits and
in accordance with law.
h) This Court is informed that plaintiffs have made a
counter claim and obviously all rights and contentions in this
regard are also left open to be agitated before the First
Appellate Court post remand.
i) First Appellate Court i.e., Principal Subordinate
Judge's Court, Kancheepuram, is requested to dispose of the
matter post remand as expeditiously as possible and as its
business would permit but in any event within one year from
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
today i.e., on or before 30.06.2022.
j) Though obvious, it is made clear that judgment and
decree of trial Court will be kept in abeyance and no execution
will be launched on the same till the disposal of first appeal
post remand.
k) Though obvious, the pleadings/depositions/exhibits
before trial Court will be before First Appellate Court which
can take additional pleadings/depositions/exhibits.
10. Before concluding, this Court makes it clear that it has reminded
itslef that the '...........paramount overall consideration is the need for striking
a judicious balance between the indispensable obligation to do justice at all
stages and the impelling necessity of avoiding prolongation in the life of any
lis in this regard' as observed by Hon'ble Supreme Court in Nazir Mohamed
case being Nazir Mohamed Vs. J.Kamala, reported in 2020 SCC OnLine
SC 676].
11. This Court deems it appropriate to place on record its appreciation
of fair approach of learned Senior counsel and counsel on record for agreeing
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
to the aforementioned consent judgment. Connected CMPs are disposed of
on above terms. There shall be no order as to costs.
30.06.2021
Speaking/Non-speaking order
Index : Yes / No
Internet : Yes / No
mk
To
1. The District Munsif-cum-Judicial Magistrate
District Munsif-cum-Judicial Magistrate Court
Sriperumbudur.
2. The Principal Subordinate Judge,
Subordinate Court,
Kancheepuram.
https://www.mhc.tn.gov.in/judis/
S.A.Nos.1028 & 1029 of 2019
M.SUNDAR. J
mk
S.A.Nos.1028 & 1029 of 2019
30.06.2021
https://www.mhc.tn.gov.in/judis/
