Madras High Court
R.Palaniappan vs M/S.Sri Surya Construction on 28 October, 2022
O.S.A.No.132 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2022
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice D.BHARATHA CHAKRAVARTHY
O.S.A.No.132 of 2022
1.R.Palaniappan
2.C.Kanakasabapathy .. Appellants
vs
1.M/s.Sri Surya Construction,
Rep. By its Partner,
Mrs.R.Uma, wife of Ravi,
Plot No.3, SRP Colony,
B Flat, Chennai – 600 082.
2.S.Jagadeeswari
3.M.Soundara Rajan (deceased)
4.S.Shanmugasundaram
5.S.Sivasubramaniam
6.S.Somasundaram
7.S.Nandakumar
8.The Sub Registrar
Office of Sembium Sub Registrar,
Sembium,
Chennai – 600 011. .. Respondents
Page 1 of 6
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O.S.A.No.132 of 2022
Appeal filed under Order 36 Rule 1 of the Original Side Rules
read with Clause 15 of Letters Patent against the order dated
05.01.2022 made in C.S.No.175 of 2013.
For Appellants : Mr.G.Anbumani
For Respondents : Mr.S.Thiruvengadam
for R1
Mr.S.Nagarajan
for R2, R4 to R7
Mr.B.Tamil Nidhi
Additional Government Pleader
for R8
JUDGMENT
(Delivered by D.BHARATHA CHAKRAVARTHY.,J)
The first respondent in this original side appeal namely, Sri
Surya Construction had filed C.S.No.175 of 2013 for specific
performance of a sale agreement against the second respondent in this
appeal namely S.Jagadeeswari. The said suit remained undefended.
Ex-parte evidence was recorded and the matter was taken up for
arguments for passing ex-parte decree before learned Single Judge on
05.01.2022.
2. During the course of arguments before the Learned Single
Judge, learned counsel appearing for the plaintiff had submitted that
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O.S.A.No.132 of 2022
one more civil suit filed by the defendant in C.S.No.175 of 2013, that
is, the second respondent in this original side appeal, namely,
S.Jagadeeswari, in O.S.No.10885 of 2009 is pending on the file of XII
Assistant City Civil Court at Chennai. It was represented that the said
suit also is relevant to the subject matter and therefore, the learned
Single Judge directed that the said suit be transferred to the file of this
Court and to be taken up along with C.S.No.175 of 2013.
3. A perusal of the said plaint in O.S.No.10885 of 2009
reveals that, the said Jagadeeswari, the second respondent in this
original side appeal along with her husband had filed the said suit
against the appellants in this original side appeal for declaration that
the sale deed executed in their favour in respect of the suit property is
null and void. It is represented that the said suit is in the stage of
arguments. The present suit, namely, C.S.No.175 of 2013 is on the
Undefended Board. It is further represented that an application to set
aside the ex-parte order is also filed and is pending.
4. After hearing learned counsel for the parties, after
considering the above, in our considered opinion unless the said
Jagadeeswari contests the said suit in O.S.No.10885 of 2009, the
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O.S.A.No.132 of 2022
plaintiff in C.S.No.175 of 2013 namely M/s Sri Surya Construction can
do nothing at present in the matter as it is not a party to that suit. No
useful purpose will be served by clubbing the said suit with the present
suit pending on the file of this Court. This apart, we find that merely on
the mentioning of the learned counsel for the plaintiff in C.S.No.175 of
2013, without affording any hearing to the other parties to the suit,
the suit has been suo motu transferred and therefore, the same is also
not sustainable. We find that C.S.No.175 of 2013 was originally left ex-
parte by the sole defendant and now is in the very nascent stage of
setting aside ex-parte order, while the trial is complete in
O.S.No.10885 of 2009 and is in the stage of arguments. Therefore, in
any view of the matter, the order of the learned Single Judge is not
sustainable and deserves to be set aside.
5. It is also brought to our notice that pursuant to the order
of the learned Single Judge, the said suit in O.S.No.10885 of 2009 on
the file of XII Assistant City Civil Court at Chennai, is brought to the
file of this Court and is already re-numbered as C.S.No.16 of 2022.
Therefore, the said C.S.No.16 of 2022 has to be again sent back to the
XII Assistant City Civil Court at Chennai from where the matter can be
continued from the stage on which the suit was originally posted,
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O.S.A.No.132 of 2022
before the order of transfer.
6. In the result, the following order is passed:-
(i) O.S.A.No.132 of 2022 stands allowed.
(ii) The order of learned Single Judge dated
05.01.2022 in C.S.No.175 of 2013 shall stand set
aside;
(iii) C.S.No.16 of 2022 shall be sent back to the
XII Assistant City Civil Court at Chennai and shall
be continued and taken up for hearing proceeded
further from the stage in which it stood;
(iv) No costs.
(v) C.M.P.No.8248 of 2022 is closed.
(P.U., J) (D.B.C., J)
28.10.2022
Index:Yes
ssm/46
To
The Sub-Assistant Registrar,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
O.S.A.No.132 of 2022
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
ssm
O.S.A.No.132 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
