Madras High Court
Vasuki vs Kanagaraj on 8 January, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
C.R.P(MD)No.21 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.01.2024
CORAM
THE HON'BLE MR.JUSTICE G.ILANGOVAN
C.R.P(MD)No.21 of 2024
and
CMP(MD)No.184 of 2024
Vasuki .. Petitioner/Petitioner/
Plaintiff
Vs.
Kanagaraj .. Respondent/Petitioner/5th
Defendant
Prayer: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
22.11.2023 in the IA.No.835 of 2023 in OS.No.285 of 2019 on the file of
the IV-Additional District Court, Madurai.
For Petitioner : Mr.S.Satheesh Kumar
ORDER
This petition has been filed by the petitioner challenging the
fair and decreetal order dated 22.11.2023 in the IA.No.835 of 2023 in
OS.No.285 of 2019 passed by the IV-Additional District Judge, Madurai.
https://www.mhc.tn.gov.in/judis
2. The suit in O.S.No.285 of 2019 was filed by this petitioner
seeking a decree of partition, separate possession, consequential
injunction and declaration declaring that the sale deed dated 05.11.2009
executed by the defendants 1 to 3 in favour of the 5th defendant is 'null
and void'. Pending suit, effort was made by the petitioner herein to serve
the summons to the respondent herein. Inspite of knowing the pendency
of the suit, the 5th defendant-Kanagaraj did not appear before the trial
Court.
3. The learned counsel for the petitioner submitted that the
summon was sent to known address of the respondent herein which was
mentioned by him in S.A(MD)No.609 of 2013.
According to the learned counsel for the petitioner, the respondent herein
is the appellant in the said second appeal, the fact of pendency of the
suit was very well known to the respondent herein. Having known of
these facts, he remained silent for about 3 years. Thereafter, the IA came
to be filed by the respondent in the year 2023. Without considering the
above said factual aspects, the trial Court allowed the IA petition on
payment of cost of Rs.1,500/-. Aggrieved over the same, the present Civil
Revision Petition is filed.
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4. Eventhough it has been stated by the learned counsel for the
petitioner that the above said facts very well indicate that the respondent
has full knowledge of the facts and remained silent, is shown in the
prayer itself wherein para 9 reads as under:
“9. The defendants 1 to 3 have created a
document styled as sale deed dated 05.11.2009 in
the name of the 5th defendant in respect of the 2nd
item of the suit property, based on the decree in
OS.No.56 of 2001. The plaintiff is not a party to the
said sale deed. The said sale deed will not bind the
plaintiff. As the decree and judgment in OS.No.56 of
2001 was set aside by the appellate Court, the sale
deed dated 05.11.2009 created in the name of the 5th
defendant by the defendants 1 to 3 has become null
and void and hit by lis-pendence. The plaintiff came
to know about the above said fraudulent sale deed
only during the month of May 2018. The defendants
1 to 3 have not stated about the alleged sale deed
dated 05.11.2009 through out in the appeal
https://www.mhc.tn.gov.in/judis
proceedings in AS.No.27 of 2009. They have
wantonly and purposely suppressed the alleged sale
deed dated 05.11.2009 before the appellate Court.
The registration copy of the sale deed dated
05.11.2009 is submitted herewith as Document
No.6.”
5. As mentioned in the preamble portion, the prayer is sought
for in respect of the sale deed effected in favour of the respondent
herein. So, absolutely, he is necessary party. Decree or judgment in the
absence of him will cause serious prejudice. Eventhough it is stated that
the respondent was very well aware of the proceedings. In the light of the
specific pleadings and prayer, the order passed by the trial Court does not
require any interference. It does not cause any serious prejudice to the
petitioner herein.
6. Considering the grievance of the petitioner in the
light of the earlier proceedings, the learned IV-Additional
District Judge, Madurai, is directed to dispose of the suit in O.
S.No.285 of 2019 within a period of five months from the date of
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receipt of a copy of this order.
7. With the above direction, this Civil Revision Petition stands
dismissed. No Costs. Consequently, connected miscellaneous petition is
closed.
08.01.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PJL
To
1. The IV-Additional District Judge, Madurai.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J.
PJL
and
08.01.2024
https://www.mhc.tn.gov.in/judis
