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2008 DIGILAW 4679 (MAD)

N. Manickam v. N. Kanakaraj & Others

2008-12-16

M.VENUGOPAL

body2008
Judgment :- 1. The petitioner/Plaintiff has filed the transfer C.M.P. praying for issuance of an order by this court to withdraw the suit in O.S.No.1227 of 2008 from the file of the Principal District Munsif of Coimbatore and transfer the same to the file of the First Additional Subordinate Judge, Coimbatore for joint trial along with I.A.No.932 of 2007 in O.S.No.1128 of 1997 on the file of the First Additional Subordinate Judge, Coimbatore. 2. The first respondent herein is the brother of the petitioner/Plaintiff and the parties involved in O.S.No.1128 of 1997 on the file of the First Additional Sub Judge, Coimbatore is said to be part of the properties belonging to them as joint family properties. As a matter of fact, O.S.No.1128 of 1997 has been filed by the petitioner for partition and separate possession of his undivided share in those properties and the said suit has been decreed in his favour wherein his undivided equal interest has been given the sale of approval by means of passing of the preliminary decree. .3. It is not in dispute that the first respondent herein has projected the I.A.No.932 of 2007, praying for passing of final decree in pursuance of the preliminary decree and the petitioner herein entered his appearance. It appears that the petitioner herein has filed I.A.No.333 of 2008 to implead the respondents 6 and 7 as petitioners 2 and 3 in the final decree application and the same has been allowed on 25.07.2008. 4. The case of the petitioner is that the respondents 6 and 7 notwithstanding that they have been made as parties to the final decree application in I.A.No.932 of 2007 still they are trying to interfere with the peaceful possession and enjoyment of the properties of the petitioner. The petitioner herein has been forced to file O.S.No.1227 of 2008 on the file of the Principal District Munsif, Coimbatore. The said suit relates to the relief of declaration that the sale deed executed by the respondents 1 to 5 in favour of the respondents 6 and 7 by means of document Nos.2556 of 2008 is null and void and for permanent injunction from alienation and restraining them from interfering with the petitioners peaceful possession and enjoyment of the suit property. 5. 5. It cannot be gain said that the substantial suit for partition which was crystallized into a preliminary decree for partition of the petitioners undivided share and resultant filing of an application praying for the relief of final decree in I.A.No.932 of 2007 is pending on the file of the First Additional Sub Judge, Coimbatore. The respondents No.6 and 7 having purchased during the pendency of final decree application I.A.No.932 of 2007 have also been brought on record as necessary parties to the said final decree application and according to the petitioner, the rights of the parties will have to be worked out in I.A.No.932 of 2007 in the pending final decree application. 6. The petitioner herein has filed a petition for transfer of suit in O.S.No.1227 of 2008 from the file of Principal District Munsif, Coimbatore to the file of the First Additional Sub Judge, Coimbatore where I.A.No.932 of 2007 in O.S.No.1128 of 1997 is pending. The said transfer O.P. No.224 of 2008 has been dismissed by the learned Principal District Judge, Coimbatore on 29.09.2008. .7. The contention of the petitioner is that the rights of the parties are pending in two different courts in regard to one and the same property and when the rights of the parties in O.S.No.1227 of 2008 have to be worked out in terms of final decree proceedings it is just and necessary that both the proceedings will have to be heard and decided by the same Judge in order to avoid plurality of proceeding and conflict of opinion, etc and since the parties are residing within the territorial jurisdiction of the learned First Additional Sub Judge, Coimbatore as well as the Principal District Munsif, Coimbatore, there shall be no inconvenience to any of them and therefore, the learned Principal District Judge ought to have allowed the transfer O.P.No.2424 of 2008 to secure the ends of justice. 8. A plea has also taken on behalf of the petitioner that any final decree application is only the continuation of the original suit laid for partition and hence for administrative convenience, a separate number is given as I.A.No.932 of 2007 and therefore, it is deemed in law that the suit O.S.No.1128 of 1997 is pending, for effective actual division and for separate possession of the properties. 9. 9. In the counter filed by R1 on behalf of the other respondents, it is inter alia averred that he is in possession and residing in a portion situated backside of the shop portion and that there is a vacant land and also the pathway leading therein and even according to the petitioner, the rights of the parties will have to be worked out in I.A.No.932 of 2007 filed by him and hence, the filing of the later suit O.S.No.1227 of 2008 is only to cause annoyance to him and also the purchasers namely R6 and R7 and in fact, the suit O.S.No.1227 of 2008 is not barring or nexus to the final decree proceedings especially when R6 and R7 are parties in the final decree application and the said suit is only to delay the proceedings in regard to the passing of a final decree in the partition suit and that the petitioner has not challenged the order of dismissal dated 29.09.2008 passed by the learned District Judge in Transfer O.P.No.224 of 2008 and in turn, the petitioner again filing the transfer O.P. before this court is not maintainable in law and therefore, prays for dismissal of the application. .10. It is relevant to point out that Section 24 of the Civil Procedure Code enjoins the general power of transfer and withdrawal and the said powers are in fact valid but the same has to be exercised by the court of law with permissible limitation. Admittedly, when there are two suits in different courts which raised common questions of law and the decisions in which they are interdependent then it is desirable that they should be tried by the same Judge so as to avoid plurality of proceedings in trial of the same issues and conflict of decisions. The involvement of common questions of law and fact is not only the sole ground enabling the transfer of suits under section 24 of C.P.C. in fact the power under section 24 of C.P.C. has to be exercised by the Court in a subjective fashion. Moreover, the petitioner has invoked Sec.24 of CPC before the Principal District Judge and as such the present Tr.CMP is not valid in the eye of law. 11. Moreover, the petitioner has invoked Sec.24 of CPC before the Principal District Judge and as such the present Tr.CMP is not valid in the eye of law. 11. The learned Principal District Judge while dismissing the transfer O.P. No.224 of 2008 has come to the conclusion that in the final decree proceedings, no evidence is to be let in or marked and further that in the final decree proceedings, the Commissioner is to be appointed for division of properties and for that purpose alone, the matter is pending and at that time, the present suit has been filed and therefore, to say that the final decree application as well as the suit are to be tried, are not to be accepted. 12. On going through the said order of the learned Principal District Judge, this Court is of the considered opinion that the said order passed by the learned Principal District Judge in Transfer O.P.No.224 of 2008 does not suffer from material irregularity or illegality and further this Court is of the considered view that the O.S. No.1227 of 2008 pending on the file of District Munsif, Coimbatore is not to be transferred to the file of First Additional Subordinate Judge, Coimbatore for Joint trial alongwith I.A. No.932 of 2007 in O.S. No.1128 of 1997 on the file of First Additional Subordinate Judge, Coimbatore in the interest of parties even based on convenience and resultantly the civil revision petition fails and the same is hereby dismissed as devoid of merits. 13. In the result, the transfer C.M.P. is dismissed as devoid of merits. No costs. Consequently, the connected miscellaneous petition is closed.