Madras High Court
K.Arokianathan @ Ravi vs K.Krishnamurthy on 5 January, 2024
Author: V.Sivagnanam
Bench: V.Sivagnanam
CRP No.5031 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2024
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
CRP No.5031 of 2023
K.Arokianathan @ Ravi ... Petitioner
Vs.
K.Krishnamurthy
...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decreetal order dated 09.03.2022 in CMA
No.2/2021 on the file of Principal Subordinate Judge, Puducherry,
confirming the order dated 27.04.2018 in O.S.No.1367/2011 on the file of
First Additional District Munsif, Puducherry.
For Petitioner : Ms.S.Sucharitha
for Mr.S.Subramanian
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CRP No.5031 of 2023
ORDER
This Civil Revision Petition has been filed to set aside the order dated
09.03.2022 in CMA No.2/2021 passed by the learned Principal Subordinate
Judge, Puducherry, confirming the order dated 27.04.2018 passed in
O.S.No.1367/2011 by the learned First Additional District Munsif,
Puducherry.
2. The respondent herein, who is the plaintiff in O.S.No.1367/2011,
has filed the above suit against the petitioner herein/defendant seeking
delivery of vacant possession and also for damages. The learned First
Additional District Munsif, Puducherry, vide order dated 27.04.2018, has
returned the plaint, as the Court has no pecuniary jurisdiction and directed
the petitioner to present the plaint before the competent court, by granting
two months time. Challenging the above order, the respondent has filed an
Appeal in CMA No.2/2021 before the learned Principal Subordinate Judge,
Puducherry. The learned Subordinate Judge, has dismissed the appeal on
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09.03.2022 and granted one month time to re-present the plaint before the
competent court of pecuniary jurisdiction. Assailing the above order, the
petitioner herein/defendant has filed the present civil revision.
3. Heard the learned counsel for the petitioner and I have perused the
materials on record.
4. On perusal of records, it reveals that the respondent herein has filed
the suit for delivery of vacant possession and permanent injunction and the
plaint was returned by the learned Munsif, directing the respondent/plaintiff
to re-present the same either before the Subordinate Court, Pondicherry or
before the Principal District Court, Pondicherry, vide order dated
27.04.2018.
5. The respondent/plaintiff has filed an appeal before the Subordinate
Judge, Puducherry to set aside the above order dated 27.0.2018 and to direct
the I Additional District Munif Court, Puducherry to decide the suit on
merits. However, pending appeal, the respondent/plaintiff has filed a memo,
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dated 21.02.2022 stating that he is intended to prosecute the suit before the
Subordinate Judge, Puducherry (in which the appeal was pending) and also
ready to re-present the retuned plaint with correct market value of the
property, mentioned in the sale deed and to pay the court fee. Therefore, he
sought to decide the suit on merits and to grant time to re-present the
returned the plaint. The petitioner herein/defendant has filed an objection
stating that the memo is not maintainable and the relief is only by an order,
on merits, in a separate petition along with a petition for condoning the
delay.
6. The first appellate court, after hearing both side, has observed that,
as the appeal is only a continuation of the suit proceedings, and already the
suit was pending for more than 7 years before the Trial Court and at the
stage of judgment the plaint has been returned, if again the appellant is
directed to file a separate petition to condone the delay, it will cause much
prejudice to the parties. Hence, to avoid multiplicity of proceedings, the
learned Subordinate Judge has dismissed the appeal and granted one month
time to re-present the plaint before the competent court of pecuniary
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jurisdiction.
7. The main grievance of the petitioner/defendant is that, since
respondent/plaintiff has not pressed the civil miscellaneous appeal, the first
appellate court has become functus officio and lost its jurisdiction to grant
such extension of time to re-present the plaint. But, when the respondent/
plaintiff is intended to prosecute the suit proceedings, by re-presenting the
plaint, paying correct court fee, before the court of pecuniary jurisdiction, he
shall be given opportunity to adjudicate the dispute. Therefore, the first
appellate court has rightly granted one month time to re-present the plaint, to
avoid multiplicity of proceedings and I find no infirmity in the order passed
by the learned Subordinate Judge,
8. In fine, this civil miscellaneous appeal is dismissed and the
impugned order passed by the first appellate court is upheld. No costs.
05.01.2024
Index: Yes/No
Internet: Yes/No
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mst
To
1. The Principal Subordinate Judge, Puducherry.
2. The First Additional District Munsif, Puducherry.
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V.SIVAGNANAM, J.,
mst
05.01.2024
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