Madras High Court
Madan Suri vs Anuradha Sarin on 28 October, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2021
Coram
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
O.S.A.No.306 of 2021
and C.M.P.No.17512 of 2021
1.Madan Suri
2.Jagan Suri ..Appellants
Vs
1.Anuradha Sarin
2.Mridula Gettu
3.The Bank of India having its Branch
at No.172, Luz Church Road,
P.O. Box No.643, Mylapore, Chennai
rep. by its Branch Manager with its
Zonal Office at Star House,
No.30/Old No.17, 2nd Floor,
Errabalu Street, Chennai - 1 and
its Head Office at Star House,
C-5 G Block, Bandra Kurla Complex,
Bandra (East), Mumbai - 400 051
rep. by its Chairman and Managing Director ..Respondents
Appeal preferred under Order XXXVI Rule 1 of O.S. Rules r/w
Clause 15 of Letters Patent against the order dated 04.02.2021 made
in A.No.1854 of 2021 in C.S.No.624 of 2014.
https://www.mhc.tn.gov.in/judis
2
For Appellants .. Mr.Najeeb Usman Khan
For Respondents .. Mr.Adesh Anto for R1
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
Challenge in this appeal is made to the order passed by learned
Single Judge dated 04 February 2021 in A.No.1854 of 2020 in
C.S.No.624 of 2014. The said application was given by original
defendants 1 and 2 and they are appellants.
2. Learned advocate for the appellants has submitted that the
issue with regard to court fee is a preliminary issue and an application
by the present appellants to decide such an issue as preliminary issue
was in accordance with law, supported by various decisions of this
Court and therefore, rejection of that application needs to be interfered
with by this Court. Learned advocate for the appellants further
submitted that there is no averment in the plaint that the first
respondent/original plaintiff is in joint possession of the suit property.
3. During the course of submissions, a query was raised by the
Court to the learned advocate for the appellants as to whether issues
https://www.mhc.tn.gov.in/judis
are framed or not and if yes, when the issues are framed. To this,
learned advocate for the appellants has submitted that he needs to
take instructions in this regard.
4. Learned advocate for the appellants has also relied on the
decisions of this Court in (i) Minor C.R.Ramaswami Aiyangar Vs.
C.S.Rangachariar and Others ((1940) 1 MLJ 32) and (ii) Sridharan and
Others Vs. Arumugam and Others ((1993) 2 MLJ 428). It is submitted
that this appeal be entertained.
5. On the other hand, learned advocate for the first
respondent/original plaintiff has submitted that the suit was filed in the
year 2014, written statements were filed in the years 2017 and 2019
respectively, issues were framed on 25 February 2019 and one of the
issues being Issue No.7 pertains to court fee which is already framed
and is being tried. Learned advocate for the first respondent has
further submitted that the order passed by learned single Judge is just
and proper and no interference be made by this Court.
6. Having heard learned advocates for the respective parties and
having considered the material on record, this Court finds that the suit
https://www.mhc.tn.gov.in/judis
is for partition. The case of the present appellants that, the plaintiff
has paid insufficient court fee is based on his assertion that the first
respondent/original plaintiff is not in joint possession of the suit
property. Whether the first respondent/original plaintiff is in joint
possession of the suit property or not itself is an issue, which if
pressed, may require trial. Consequential effect thereof that the court
fee paid by the first respondent/original plaintiff is insufficient, in the
facts of the case, could not be tried as a preliminary issue. Further, the
grievance of the appellants is already taken care of, since as per the
say of learned advocate for the first respondent/ original plaintiff, one
of the issues is already framed in that regard.
7. In view of above, we find that, entertaining this appeal would
only result in delaying the adjudication of the suit, that too, when
there is less motivation on the part of original defendants 1 and 2 to
proceed with the matter, though not expressly so submitted before the
Court. In this regard, as noted above, on the query whether issues are
framed or not and if yes when – it was submitted by learned advocate
for the appellants that he needs to take instructions in that regard.
8. In totality, we find that, no prejudice will be caused to the
https://www.mhc.tn.gov.in/judis
appellants if this appeal is not entertained and at the same time,
serious prejudice will be caused to the original plaintiff, if this appeal is
entertained.
9. In the facts noted above, the decisions relied by the learned
advocate for the appellants will not take the case of the appellants any
further.
10. In view of above, this appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
(P.U.J.,) (S.S.K.J.,)
28.10.2021
Index:Yes/No
mmi/3
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
O.S.A.No.306 of 2021
28.10.2021
https://www.mhc.tn.gov.in/judis
