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2007 DIGILAW 1523 (MAD)

A. Mohammed Ali v. Easther and Others

2007-04-27

S.MANIKUMAR

body2007
Judgment :- Tr. C.M.P. (MD) No. 4055 of 2006 is filed to withdraw O.S. No. 624 of 2005 from the file of the III Additional District Munsif Court, Trichy and to transfer the same to the I Additional District Munsif, Trichy to be tried along with O.S. No. 548 of 1999. 2. Tr. C.M.P. (MD) No. 4058 of 2006 is filed to withdraw O.S. No. 1161 of 1999 from the file of the II Additional District Munsif Court, Trichy and to transfer the same to the I Additional District Munsif, Trichy to be tried along with O.S. No. 548 of 1999. 3. The petitioner in both the transfer petitions is one and the same. The relief sought in both the petitions are to transfer suits pending on the file of two different Courts to be tried along with O.S. 584 of 1999 pending on the file of the learned Additional District Munsif, Trichy and therefore both the transfer petitions are taken up together and disposed of by a common order. 4. The averments in both the Transfer Petitions C.M.P. 4055 of 2006 and 4058 are as follows : The petitioner has stated that Esther and 4 others, respondents herein have filed a suit in O.S. No. 548 of 1999 on the file of the learned I Additional District Munsif, Trichy, against the petitioner and his wife and against Mr. Anwar Ali for permanent injunction. The petitioner, who is a defendant in the suit has filed written statement. 5. Pending disposal of the above suit, one P.A. Murthaleef purchased the property from Mary (one of the plaintiffs in O.S. No. 548 of 1999) and he attempted to interfere with the possession of the petitioner and therefore another suit was filed for permanent injunction in O.S. No. 1161 of 1999 on the file of the learned II Additional District Munsif, Trichy, in connection with the schedule property, which is a land existing on the Northern side of the property i. e. ‘A‘ Schedule Property. 6. During the pendency of the suit, the said P.A. Muthaleef put up pillars in the ‘B‘ schedule property and therefore the petitioner amended the plaint seeking for mandatory injunction. 6. During the pendency of the suit, the said P.A. Muthaleef put up pillars in the ‘B‘ schedule property and therefore the petitioner amended the plaint seeking for mandatory injunction. One of the defendants in O.S. No. 624 of 2005, Mary wife of Sebastian and her relatives who are having properties adjacent to the western, northern and southern side of the petitioners property attempted to interfere with the possession and enjoyment of the petitioners property and damaged the southern wall of his property and therefore the petitioner has filed another suit in O.S. No. 624 of 2005 on the file of the Learned III Additional District Munsif for permanent injunction and for damages. 7. The reasons stated in the above transfer petitions are that the suits have been filed for the reliefs for permanent injunction, mandatory injunction and for damages. The parties in the suit are almost one and the same and the main dispute in the above suits pertain to the measurement of the property. The evidence to be let in by the parties are more or less same and therefore to avoid repetition of evidence and multiplicity of proceedings, the petitioner has prayed to withdraw the suit in O.S. No. 1161 of 1999 from the file of the II Additional District Munsif Court, Trichy and O.S. No. 624 of 2005 from the file of the III Additional District Munsif, Trichy to try the same along with O.S. No. 548 of 1999 on the file of the learned I Additional District Munsif, Trichy. 8. The fourth respondent in Transfer Civil Miscellaneous Petition No. 4055 of 2006 Mr. Sabu has filed a counter-affidavit for himself and on behalf of the respondents 3 and 5. He has submitted that the suit in O.S. No. 548 of 1999 was filed by his mother S. Mary w/o Sebastian, who is the third respondent in this petition, before the I Additional District Munsif Court, Trichy, against the petitioner. The said suit was listed on 9.11.2005. Fourth respondents mother and another witness were examined as P.W.1 and P.W.2. After closure of the plaintiffs evidence, the chief examination of the petitioner was over on 24.7.2006 and it was posted for his cross-examination on 26.7.2006. It is further stated that the petitioner as D.W.1 in O.S. No. 548 of 1999 was to be cross-examined on 26.7.2006 and at this stage, the present transfer petitions have been filed. After closure of the plaintiffs evidence, the chief examination of the petitioner was over on 24.7.2006 and it was posted for his cross-examination on 26.7.2006. It is further stated that the petitioner as D.W.1 in O.S. No. 548 of 1999 was to be cross-examined on 26.7.2006 and at this stage, the present transfer petitions have been filed. On26.7.2006, the petitioner represented in open Court that he wanted to change his counsel and therefore the suit was adjourned to many hearings viz., 28.7.2006, 4.8.2006, 14.8.2006, 23.8.2006, 25.8.2006 and 13.10.2006. Though the petitioner took adjournments on so many occasions, neither did he engage any counsel nor he had disclosed about the filing of transfer petitions in this Court on 31.7.2006, when the suit was posted for cross-examination. 9. The fourth respondent has further submitted that the suit No. 1161 of 1999 was filed by the petitioner against one P.A. Muthaleef, purchaser of a portion of the property belonging to the respondents. They denied the averments that the suit property, which is the subject matter in O.S. No. 1161 of 1999 was purchased by P.A. Muthaleef during the pendency of O.S. No. 548 of 1999 as false and further submitted that the property was sold out to the said P.A. Muthaleef during April 1995, much earlier to the institution of the suit in O.S. No. 1161 of 1999, pending on the file of the II Additional District Munsif, Trichy. They further contended that pending disposal of the suit in O.S. No. 624 of 2005, the petitioner herein also field I.A. No. 300 of 2005 for interim injunction and the respondents to the said application have filed a counter-affidavit. Both in the counter-affidavit as well as in the written statement, the defendants/respondents have categorically objected that the suit itself is not maintainable and it is barred by Principles of res judicata, on the grounds that the petitioner had already filed O.S. No. 2374 of 1989 against the fourth respondents father and grand father; that after their demise, the respondents herein were impleaded as legal representatives in the above suit No. 2374 of 1989, and on contest, the said O.S. No. 2374 of 1989 was dismissed. The respondents further submitted that the present suit in O.S. No. 624 of 2005 on the file of Learned III Additional District Munsif is for permanent injunction and for damages. The respondents further submitted that the present suit in O.S. No. 624 of 2005 on the file of Learned III Additional District Munsif is for permanent injunction and for damages. The fourth respondent has further submitted that the injunction application LA. No. 300 of 2005 was dismissed against the petitioner on 21.7.2006 and only to circumvent the litigation before the Courts and to drag on the proceedings, the petitioner has now chosen to file the transfer petitions. There is no bona fide in the transfer petitions and therefore the respondents have prayed for dismissal of the same. 10. In Transfer C.M.P. No. 4058 of 2006, the respondent therein has filed a counter-affidavit and submitted that neither in O.S. No. 548 of 1999, pending on the file of the learned I Additional District Munsif, Trichy nor in O.S. No. 624 of 2005 on the file of the learned III District Munsif Court, Trichy, he is a party and the subject-matter of the suits are entirely different. He further submitted that there is no identity of the property or any rational circumstances warranting joint trial by the same Court. He has submitted that the suit property, subject matter of dispute was in his exclusive possession and enjoyment. In the suits filed by the petitioner O.S. No. 64 of 1974 and as well as in the second suit filed by the petitioner in O.S. No. 279 of 1984, a clear finding has already been rendered by the competent civil Courts that the Transferee petitioner has no right or title on the northern side of his property. In the suit which was instituted by the petitioner against the vendor of the property, a specific finding has already been rendered by framing an issue and that therefore the present suit instituted by the plaintiff/petitioner in O.S. No. 1161 of 1999 is barred by principles of res judicata, as the finding has become final. Though the respondent herein has been insisting of the lower Court for the disposal of the suit on the preliminary issue of res judicata, the petitioner has been protracting the proceedings by the filing petitions after petitions seeking amendment of pleadings or for some other reasons. The suits filed by him are frivolous in nature and there is no common questions of law or fact involved in transfer of the suits, for joint trial along with O.S. No. 548 of 1999. The suits filed by him are frivolous in nature and there is no common questions of law or fact involved in transfer of the suits, for joint trial along with O.S. No. 548 of 1999. The respondent has prayed for dismissal of the transfer petition No. 4058 of 2006. 11. Perusal of the pleadings made in these two petitions disclose that there has been long litigation in respect of the subject-matter of the suits on earlier occasions, between the petitioner and the respondents in Transfer C.M.A. 4055 of 2006. P.A. Muthaleef, who is said to be the purchaser of a portion of the property has specifically contended that there is a finding in the previous litigation regarding the title and interest in respect of the property in favour of his vendor and it has reached finality. The suit No. 548 of 1999 initiated by the third respondent before the Learned I Additional District Munsif was listed for hearing on 9.11.2005 and the plaintiff and another witness were examined as P.W.1 and P.W.2. It is evident that after the closure of the plaintiffs side, the suit was posted for cross-examination of the petitioner/Defendant on 26.7.2006 and from that day onwards, the petitioner has taken adjournments on the ground that he wanted to engage another counsel. The contentions of the respondents in the counter-affidavits that the petitioner has failed to disclose the filing of the transfer petitions before the lower Court on 31.7.2006, though the suits were periodically adjourned from 28.7.2006 to 13.10.2006, has not been denied by the petitioner by filing any reply affidavit. Further, the contention of the respondent that the subject-matter of the property in O.S. No. 1169 of 1999 was sold to P.A. Muthaleef in April 1995, itself much earlier to institution of O.S. No. 548 of 1999 has also not controverted. The petitioner has also not disclosed the stage of the suit in the affidavits filed in support of the Transfer petitions. 12. The basic principle governing the transfer of a petition under Section 24 of the Civil Procedure Code is that the petition is not to be dealt with, in a light hearted manner and transfer of case from one Court to another should not be granted readily for fancy means of the petitioning litigant, because the party to the suits are entirely different and there is no common questions of law and facts involved. It is evident from pleadings that petitioner/defendant in O.S. No. 548 of 1999 on the file of the Learned Additional District Munsif has chosen to file two different suits in O.S.T. No. 1169 of 1999 and O.S. No. 624 of 2005 in two different Courts viz. the Learned II Additional District Munsif Court, Trichy and Learned I Additional District Munsif Court, Trichy respectively. In O.S. No. 1161 of 1999, the parties to the suit are entirely different. Section 22 of the Civil Procedure Code contemplates, whether a suit may be instituted in one of two or more Courts and is instituted in one or such Courts, any defendant, after notice to other parties, may, at the earliest possible opportunity and in all cases were issues are settled or at before such settlement, apply to have the suit transferred to another Court, and the Court to which such settlement, application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed. In the present transfer petitions, the issues have been framed long back in O.S. No. 548 of 1999 and at the time of cross-examination of the petitioner, he has chosen to file the transfer applications as if common questions of facts and law are involved in the other suits. The petitioner has not disclosed the facts and the stage of the suit in O.S. No. 548 of 1999 in the transfer petition. The intention to protract the proceedings is per se evident from the attitude of the petitioner that he has chosen to file the transfer petitions, after taking adjournments before the lower Court. There is no merit and bona fides in the transfer petitions and they have been filed only to prolong the proceedings between the parties. 13. In the result, I do not find any merits in the transfer petition and the same is dismissed with costs of Rs. 2,000/- (Rupees Two Thousand only) to be paid to the counsel for the respondents in Tr. C. CM.P. No. 4055 of 2006.