Madras High Court
A.Devakiammal vs A.Mariappan on 5 October, 2023
C.S.No.385 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 05.10.2023
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.385 of 2018
and
A.No.5828 of 2022
1.A.Devakiammal
2.A.Nandakumar
3.A.Sankar
4.Hemalatha
5.Vasanthi
6.S.Nithya
7.K.Selvaraj .. Plaintiffs
vs.
1.A.Mariappan
2.M.Mallika
3.M.Subramani .. Defendants
Civil Suit filed under Order VII Rule 1 of CPC and Order IV Rule 1
of Original Side Rules praying for the following judgment and decree
against the defendants.
a) Directing the defendants to pay a sum of Rs.1,16,26,000/- [Rupees
One Crore Sixteen Lakhs and Twenty Six Thousand only] to the plaintiffs
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C.S.No.385 of 2018
along with interest at 18% p.a. from the date of Plaint till date of realization.
b) costs of the suit;
For Plaintiffs : Mr.S.Chankra Baskaran
For Defendants : Mr.R.Radha Pandian
JUDGMENT
The application in A.No.5828 of 2022 has been filed to withdraw the
civil suit with liberty to file a fresh suit on the same cause of action before
the proper forum. The suit has been originally laid before this Court for
recovery of a sum of Rs.1,16,26,000/-.
2. The case of the plaintiffs is that an extent of 1.33 acres has been
owned by Arumugam Mudaliar. The Power of Attorney was given in
respect of the said land for a plan approval in favour of the first defendant.
Based on the said Power of Attorney, an approval has been obtained for an
extent of 68 cents. Thereafter, the remaining 65 cents has been transferred in
favour of the third defendant by the first defendant. When the plaintiffs
came to know about this, there were agreements between the parties which
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C.S.No.385 of 2018
were executed on 02.02.2017 and 26.02.2017, wherein the first defendant
has agreed to return 35 cents instead of 65 cents. In this regard, the third
defendant has also given a Power of Attorney. Thereafter, it appears that the
Power of Attorney has been cancelled. Hence, it is the contention of the
plaintiffs that the entire transaction is fraudulently done by the defendants,
since their property has been utilized, for which the plaintiffs are entitled to
claim damage to the tune of Rs.1,16,26,000/-.
3. A counter affidavit has been filed by the first defendant in
Application No.5828 of 2022, wherein it is stated that the alleged disputes
and transactions happened in the year 1987 and the property, which is
involved in the alleged disputes, is situated at Vellanur Village, Ambattur
Taluk, Tiruvallur District and thus, this Court has not jurisdiction to decide
the case. The only contention raised on behalf of the defendants is that since
the plaintiffs were examined in part, the suit cannot now be permitted to be
withdrawn. Apart from this, the defendants have not raised any serious
objections.
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C.S.No.385 of 2018
4. A Perusal of the entire materials and the facts leading to filing of
the present application indicate that subject property, which was originally
owned by the plaintiffs' father, is now in the hands of the defendants. It is
specifically alleged that there was a compromise entered into between the
parties in the year 2017 and the defendants themselves have agreed to return
35 cents of land, in respect of which a Power of Attorney has also been
executed by the third defendant. However, it came to be cancelled at a later
stage in order to defeat the rights of the plaintiffs.
5. Be that as it may, when this Court has examined the nature of cross
examination of the plaintiffs, it is seen that the plaintiffs were cross
examined only with few questions. A perusal of the said questions would
reveal that no right whatsoever has been created in favour of the defendants
by way of admission or otherwise. In that view of the matter, in the absence
of any right by way of cross examination in favour of the defendants, now
the defendants cannot object to the prayer sought for by the plaintiffs in the
application for withdrawal of the civil suit with liberty to file a fresh suit.
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C.S.No.385 of 2018
6. When the suit itself is with regard to an immovable property which
is situated outside the jurisdiction of this Court, this Court, by considering
the nature of the allegations and the nature of immovable property which
appears to be in the hands of the others, is inclined to grant liberty to the
plaintiffs to withdraw the present suit.
6. In the light of the above observations, the application in A.No.5828
of 2022 is allowed and the plaintiffs are granted permission to withdraw the
Civil Suit with liberty to file a fresh suit on the same cause of action before
the appropriate forum. Such suit shall be filed by the plaintiffs within a
period of two months from the date of receipt of a copy of this order
05.10.2023
Index:Yes/No
Speaking order/Non-speaking order
hvk
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C.S.No.385 of 2018
N.SATHISH KUMAR, J
hvk
C.S.No.385 of 2018
05.10.2023
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