Madras High Court
P.Tharadevi vs S.Padma on 29 July, 2022
C.M.A.No.1609 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
C.M.A.No.1609 of 2022
and C.M.P.No.11938 of 2022
1.P.Tharadevi
2.M.Gowri ... Appellants
-Vs.-
N.Thiyagarajan (Deceased)
1.S.Padma
2.S.Jayalakshmi
3.S.Bhuvaneswari
4.S.Lokesh ... Respondents
Civil Miscellaneous Appeal filed under Order 43 Rule 1 of Code of
Civil Procedure, against the order dated 19th January, 2021 by the XIX
Additional Judge of Additional City Civil Court, Chennai in I.A.No.7014 of
2018 in O.S.No.2762 of 2018.
1/9
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C.M.A.No.1609 of 2022
For Appellants : Mr. K.Mugundhan
For Respondents : Mr.M.Praveen Kumar
/Caveators
JUDGMENT
Challenging the dismissal of their application seeking an ad-interim
injunction, the plaintiffs are before this Court.
2. The parties are referred to in the same ranking as before the
Trial Court, namely, XIX Additional Judge,City Civil Court, Chennai.
3. The facts in brief are as follows:-
The plaintiffs, who are the appellants herein, had filed O.S.No.2762
of 2018 on the file of the above referred Court for a partition and separate
possession of their 2/4th share in the suit schedule property and to declare
the Settlement Deed dated 04.03.2013, registered as Document No.842 of
2013 on the file of the Sub Registrar Office, Purasalwalkam, Chennai by the
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C.M.A.No.1609 of 2022
first defendant in favour of one T.Shankar relating to their 2/4th share as
null and void and for an injunction restraining the defendants and their
heirs, attorneys from encumbering or alienating the suit schedule mentioned
property.
4. The plaintiffs had claimed a right as daughters of the first
defendant, N.Thiyagarajan. They would submit that the suit property is the
ancestral property of the plaintiffs and the defendants as it fell to the share
of the first defendant in a partition deed dated 09.06.1988 entered into
between the first defendant and his siblings. The plaintiffs had a brother,
T.Shankar, who is no more and his wife and children have been impleaded
as defendants 2 to 5. The plaintiffs would state that the said Shankar and his
family were residing along with their father in the suit schedule property
and the plaintiffs were residing in their matrimonial homes. After the death
of their brother, Shankar, the defendants 2 to 5 continued to reside in the
said property. The plaintiffs would state that after the death of their brother,
they had approached the first defendant and had sought for a partition of the
property and only then came to know that their father had settled the suit
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C.M.A.No.1609 of 2022
schedule property in favour of his son on 04.03.2013. The plaintiffs would
submit that since they also have a right to the suit property, they issued a
legal notice on 04.04.2018 and an evasive reply dated 17.04.2018 was
received from the defendant. Therefore, since the partition was denied, the
plaintiff has come forward with the above suit.
5. Pending the suit, the plaintiffs had taken out two applications
in I.A.Nos.7013 and 7014 of 2018 for a direction to the defendants to
deposit 50% of the monthly rents collected from the suit schedule property
into the Court and for an interim injunction restraining the respondents /
defendants or any person claiming under them from alienating or
encumbering the suit schedule property.
6. In the common affidavit filed in support of the above referred
applications, the plaintiffs would submit that they had come to learn that the
defendants were trying to encumber the property to avoid the legal claim of
the plaintiffs and were also attempting to mutate the revenue records in the
names of the legal heirs of the late Shankar. That apart, the rents were being
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C.M.A.No.1609 of 2022
received only by the defendants. Therefore, they had sought for the interim
reliefs.
7. The defendants had filed a written statement in which they had
categorically denied the averments contained in the plaint. The defendants
would further submit that after the demise of their father, their mother,
Kamalammal and sisters, B.Krishnaveni, N.Meenakshi and N.Punithavathi
had released their 4/9th share in the “A” schedule property. The defendants
would submit that after execution of the release deed, the first defendant and
his brothers had partitioned the property and the "A" schedule property
thereunder was alloted to the share of the first defendant and this constitutes
the suit property. The defendants would further submit that the plaintiffs are
very much aware about the release by the mother and three others sisters in
his favour. The defendants would submit that the plaintiffs are attempting
to wrangle out money from the defendants. The defendants had raised
various other pleadings in answer to the suit filed by the plaintiffs.
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C.M.A.No.1609 of 2022
8. A counter to the interlocutory application has also been based
on the same lines.
9. A common order came to be pronounced in both I.A.S, namely,
I.A.Nos.7013 and 7014 of 2018 dismissing the said application.
10. Challenging the order in I.A.No.7013 of 2018, the plaintiffs
herein had filed a civil miscellaneous appeal in C.M.A.No.1246 of 2022 and
this Court, by order dated 15.06.2022, was pleased to dismiss the said
application and has given a direction to the Court below to dispose of the
suit within a period of two months from the date of receipt of a copy of the
said judgment. The present Appeal, C.M.A.No.1609 of 2022 is directed
against the dismissal of I.A.No.7014 of 2018. The learned Judge, while
disposing the said applications, has held that the rival contentions have to
be decided after both sides let in evidence both oral as well as documentary.
The Court has held that the suit is one for partition and the plaintiffs cannot
seek to have their right established without passing of the final decree. The
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C.M.A.No.1609 of 2022
plaintiffs have not established a prima facie case and neither was balance of
convenience in their favour for the grant of interim orders.
11. In the light of the fact that the plaintiffs have failed to prove
their contentions made in the application for ad-interim injunction, the
learned Judge has rightly dismissed the application and I therefore see no
reason to interfere with the same. That apart, any sale pending the suit is hit
by the principles of pendente lite. Therefore, no prejudice would be caused
to the plaintiffs by reason of the order of injunction being denied. I therefore
find no reason for disagreeing with the Tribunal below insofar as it relates
to grant of ad-interim injunction and therefore, the civil miscellaneous
appeal is dismissed.
12. Earlier this Court by order 15.06.2022 in C.M.A.No.1246 of
2022 had directed the Court below to dispose of the suit within a period of
two months from the date of receipt of a copy of this order. It is informed
by the learned counsel for the appellants/plaintiffs that a petition for
amendment has been filed and the same is pending. The amendment relates
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C.M.A.No.1609 of 2022
to bringing on record the legal representatives of the deceased and to amend
the extent of the shares. The learned counsel for the respondents herein, on
instructions, would submit that the respondents have no objection to the
amendment being ordered. The said statement is recorded and the learned
Additional Judge shall on the application being filed, allow the same by
taking note of their “No Objection” made herein.
13. The learned XIX Additional Judge, City Civil Court, Chennai
shall endeavour to dispose of the suit O.S.No.2762 of 2018 within a period
of three months from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
29.07.2022
srn
To
1. The XIX Additional Judge, Additional City Civil Court, Chennai
2. The Section Officer,
V.R.Section, High Court, Madras
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C.M.A.No.1609 of 2022
P.T.ASHA.J
srn
C.M.A.No.1609 of 2022
and
C.M.P.No.11938 of 2022
29.07.2022
https://www.mhc.tn.gov.in/judis
