Madras High Court
Sharath Kumar Surendra vs P.S.Usha on 11 November, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.11.2021
Coram
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
C.M.P.No.18570 of 2021
in
O.S.A.SR.No.100891 of 2021
Sharath Kumar Surendra ..Petitioner
Vs
1.P.S.Usha
2.P.S.Surendra
3.P.S.Subramani
4.P.S.Vijayalakshmi ..Respondents
Petition filed under Order XIV Rule 8 of O.S. Rules and Section
151 C.P.C. to grant leave to the petitioner/appellant to file Original
Side Appeal.
For Petitioner .. Mr.Sam Jayaraj Houston
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
This petition is seeking leave of this Court to file appeal against
the order dated 29 June 2021, recorded on O.A.No.374 of 2021 in
C.S.No.207 of 2021.
2. The suit is for partition and permanent injunction. One of the
siblings (sister) is the plaintiff and other three siblings are the
defendants. The first defendant is the brother of the plaintiff. The
prayer clause in the suit is as under:
“(a) pass a preliminary decree for partition dividing
Schedule A and B properties into 4 equal shares and allot 1/4 th
share to the plaintiff.
(b) for permanent injunction restraining the first
defendant, their men or agents from dispossessing the plaintiff
from the suit property morefully described in Item 1 of B
Schedule below.”
3. By the impugned order, injunction is granted in favour of the
plaintiff, against her dispossession from the suit property.
4. The petitioner is the son of original first defendant (brother).
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5. Learned advocate for the petitioner has submitted that the
impugned order prejudices the rights of the present petitioner, since
according to him, he is the owner of the property. It is submitted that
he ought to have been heard before passing the impugned order and
therefore, this petition be allowed and appeal be entertained. It is
further submitted that in the event the present petitioner is not heard,
that will prejudice his case including qua his right regarding his own
property. Learned advocate has further submitted that the petitioner's
father is not well and therefore he (defendant No.1) could not put
correct facts before learned single Judge. It is noted that the learned
advocate for the petitioner has taken this Court extensively through
the paper book. It is prayed by him that this petition be allowed.
6. Having heard the learned advocate for the petitioner and
having considered the material on record, this Court finds as under:
6.1. This petition, ostensibly is seeking leave to challenge the
order dated 29 June 2021. The said order was passed on O.A No.374
of 2021 in C.S. No.207 of 2021, wherein the averments by the
applicant/ plaintiff are to the effect that she and first defendant (her
brother) are residing in the same property. She is occupying ground
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floor and the first defendant (brother) is on the first floor. The first
defendant and his other family members wanted the plaintiff to
handover possession of the suit property, that is how the controversy
started. It is under these circumstances, along with the plaint for
partition, she also moved an application to grant injunction in her
favour against her dispossession. It is on the said application, initially
the order was passed by the learned single Judge on 29 June 2021 (for
which leave to appeal is sought for). Thereafter, on 20 July 2021,
following further order was passed :
“It is seen from the records that notice has been
served on the respondents.
2. Registry is directed to verify whether any counsel
has entered appearance on behalf of the respondents. If
no counsel entered appearance, print the name of the
respondents in the cause list.
3. Post on 19.08.2021.
4. The interim order already granted by this Court is
extended until further orders.”
6.2. The matter was considered again on 19 August 2021. After
hearing all the parties, including the first defendant (father of the
present petitioner), the following order was passed:
“ The learned counsel for the parties submitted that
they require some time to explore the possibility of
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settlement between the parties. Therefore, they requested
long adjournment.
2. The learned counsel for the respondents
fairly submitted that the respondents have no
intention to alienate the property.
3. The above submission of the learned counsel for
the respondents is recorded. The interim order already
granted by this Court is made absolute.
4. Post the matter on 08.10.2021.”
(emphasis supplied)
6.3. It is under the above circumstances, the son of the original
first defendant has filed this petition, praying for leave of this Court to
file appeal against the order of 29 June 2021 on the ground that he is
an aggrieved party. We find that, the first defendant whose concession
is recorded in the order dated 19 August 2021 is before this Court,
challenging - effectively the same order dated 19 August 2021, under
the pretext of challenging the order dated 29 June 2021, with the
mask of his son. Such a tactic can not be acknowledged.
6.4. If any party is aggrieved, he is well within his right to
approach the higher / appropriate forum. The father is not before this
Court. It is his son - who can very well move learned single Judge, is
in appeal, that too, by challenging only the order dated 29 June 2021.
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If the argument on behalf of the present petitioner is accepted on its
face value, it is an ex-parte order and appropriate remedy could have
been resorted to.
6.5. Going by any parameter, this Court finds that entertaining
this petition would result in prolonging the dispute between the siblings
at the hands of the next generation, without his participating in the
suit proceedings, if otherwise he is entitled to. This petition therefore
needs to be dismissed.
7. There is an additional factor against the present petitioner.
During the course of hearing, learned advocate for the petitioner has
submitted that the plaintiff (aunt) and the first defendant (father) are
staying in the same property but the present petitioner is not staying
in that property. Only because of sickness of his father, he has gone
there to attend him. This factor also needs to be kept in view. When
the dispute is essentially between siblings, colour thereof can not be
permitted to be changed at the hands of the next generation of one of
the contesting parties.
8. There is additional material on record, which we have
considered. Expressing any opinion qua that would only further
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prejudice the case of present petitioner or the first defendant and
therefore we have refrained from doing so. Suffice it to hold that this
petition can not be / need not be entertained.
9. In view of the above, the following order is passed:
9.1. This petition seeking leave is rejected.
9.2. O.S.A.SR. No.100891 of 2021 would not survive and stands
rejected.
(P.U.J.,) (S.S.K.J.,)
11.11.2021
Index:Yes/No
mmi/8
To
The Sub Assistant Registrar,
Original Side, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
PARESH UPADHYAY, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
mmi
C.M.P.No.18570 of 2021
in O.S.A.SR.No.100891 of 2021
11.11.2021
https://www.mhc.tn.gov.in/judis/
