Madras High Court
D.Selvam vs M.K.Muthurajan on 21 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.03.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.No.306 of 2017
and
CMP.No.1402 of 2017
D.Selvam
... Petitioner / 1st respondent/Plaintiff
Vs.
1.M.K.Muthurajan
... 1st Respondent / Petitioner / 1st Defendant
2.A.Parasuraman ...2nd Respondent / 2nd Respondent / 2nd Defendant
Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the Fair and Decreetal order dated 18.04.2016 made in
I.A.No.415 of 2016 in O.S.No.175 of 2014 on the file of the Court of
District Munsif-cum-Judicial Magistrate, Sriperumbudur, Kancheepuram
District.
For Petitioner .. Mr.B.Dayaalan
For R1 .. Mr.T.Sundar Rajan
https://www.mhc.tn.gov.in/judis
2
ORDER
The Civil Revision Petition has been filed by the plaintiff in
O.S.No.175 of 2014, which suit is now pending on the file of the District
Munsif cum Judicial Magistrate Court, Sriperumbudur, Kancheepuram
District, aggrieved by the order dated 18.04.2016 in I.A.No.415 of 2016.
O.S.No.175 of 2014 had been filed by the present revision petitioner
herein / plaintiff, against the 1st and 2nd defendants, M.K.Muthurajan and
A.Parasuraman, seeking a judgment and decree against the 1 st defendant,
M.K.Muthurajan from interfering with the peaceful possession of the
property which had been described as C-schedule and which is part of A-
schedule property.
2.The A-schedule property given in the plaint is land measuring 33
cents out of a larger extent of 87 cents in Wet Survey No.45/3 at Kovur
Village in Sriperumbudur in Kancheepuram District. There is also a
building in that particular land and also a thatched shed with electricity
connection. It has old Door No.53/3 and New Door No.6/5 and the
address is Sekkadi Street, Kovur Village, Chennai – 600 128. The C-
schedule property for which injunction had been sought, measures 2,000
Sq.ft., out of the larger area of 33 cents and is also situated in Wet
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S.No.45/3 and there is also a thatched shed and again bears Old Door
No.53/03 and New Door No.6/5 in Sekkadi Street, Kovur Village,
Chennai – 600 128.
3.The claim of the plaintiff was that the 2nd defendant
A.Parasuraman and his brother had partitioned the joint family property
and the 2nd defendant had obtained A – schedule property and the
plaintiff and the 2nd defendant had entered into a monthly rental
agreement and the plaintiff took possession of the C-schedule property
which measures 2000 sq.fts from the 2nd defendant. It is the claim of the
plaintiff that he has been in possession. Seeking protection of such
possession from the 1st defendant, the suit had been instituted.
4.The suit summons had been issued to the 1st defendant. It
transpires that the 1st defendant has a residence address and also has an
office at Kovur Village. With respect to the suit schedule property and the
address therein, it is the claim of the 1st defendant that the 1st defendant
has nothing to do with the said property and that his son is independently
carrying on business.
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5.This fact is denied by the plaintiff, who claims that suit
summons had served on the 1st defendant in the address as given in the
plaint, namely, the C-schedule property of the plaint and therefore, non-
appearance before the Trial Court, was without any reason and cannot be
sustained.
6.The 1st defendant had been set ex-parte. He then filed I.A.No.415
of 2016 to set aside the ex-parte order. The said application came up for
consideration on 18.04.2016 and the District Munsif, Sriperumbudur,
had thought it prudent to allow the Interlocutory Application. He also
imposed costs of Rs.500/- to be paid to both the plaintiff and the 2nd
defendant.
7.It is the claim of the learned counsel for the 1 st respondent herein
that cost had been deposited in Court.
8.The Learned counsel for the revision petitioner, questions the
proprietary of the order passed on the ground that summons had been
served and no plausible reason or acceptable reason has been given for
non-appearance before the Court. It is stated that the 1 st respondent in the
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Revision Petition had received the notice in the address in which he is
carrying on business, and therefore, the contention that the son is
carrying on business at the address is not a correct statement. As a matter
of fact, learned counsel alleges that the averments in the affidavit are false
to the knowledge of the 1st respondent.
9.This statement by the learned counsel is vehemently disputed by
the learned counsel for the 1st respondent who states that, as a fact he has
a separate place of residence and he has a separate place for his office
and that the address to which the suit summons sent is a factory in which
his son is carrying on business. These facts revolve around issues of facts
and these are issues which had not been addressed by the learned District
Munsif cum Judicial Magistrate, Sriperumbudur.
10.Moreover, establishment of these facts would require the
parties have to graze the witness box stating the particular facts in the
witness box and subjecting themselves for cross-examination. Necessary
records are to be produced and the records produced would include
whether the son is carrying on business at the property mentioned in the
suit schedule or whether the 1st respondent is carrying on business. This
requires evidence to be recorded.
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11.Therefore, I would set aside the order dated 18.04.2016 and
direct the District Munsif cum Judicial Magistrate, Sriperumbudur, to
permit the parties to enter into witness box and produce documents and
test those documents regarding their admissibility, relevancy and also
examine whether the documents are proved in manner known to law and
subject oral evidence to cross-examination and thereafter, come to a
considered decision whether to allow the I.A.No.415 of 2016 or to
dismiss the same.
12.The costs amount which had been deposited in Court may be
withdrawn by the 1st respondent by filing a proper memo and let further
orders be passed by the District Munsif cum Judicial Magistrate,
Sriperumbudur, on the basis of the evidence adduced by both the parties.
13.In view of the aforesaid reasons, the Civil Revision Petition is
allowed. The order dated 18.04.2016 in I.A.No.415 of 2016 is set aside
and the matter is remanded back to the District Munsif cum Judicial
Magistrate Court, Sriperumbudur to rehear I.A.No.415 of 2016 by
directing the parties to graze the witness box and thereafter, pass
necessary orders. No order as to costs. Consequently, connected Civil
Miscellaneous Petition is closed.
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14.The statement of the learned counsel for the 1 st respondent that
the suit summons had not even been served on the address given in the
suit property is also to be examined.
21.03.2022
Internet:Yes/No
Index:Yes/No
smv
To
The Court of District Munsif cum Judicial Magistrate, Sriperumbudur.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
Smv
C.R.P.PD.No.306 of 2017
and
CMP.No.1402 of 2017
21.03.2022
https://www.mhc.tn.gov.in/judis
