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2012 DIGILAW 2916 (MAD)

Vijayakumari v. Balamani

2012-07-10

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition has been filed under Article 227 of the Constitution of India, challenging the order dated 16.2.2012 in Tr.O.P.No.83 of 2011, on the file of Principal District Court, Erode. 2. The revision petitioners are the defendants 5, 6 & 9 in O.S.No.441 of 1996, which has been filed for partition and separate possession and they are also defendants, 2,3 and 5 in the Suit in O.S.No.536 of 2011, which has been filed for permanent injunction. In the latter Suit, there is an order of interim injunction in I.A.No.903 of 2011. Pending partition suit in the stage of examination of P.W.3 before the Principal Sub Court, Erode, the second respondent in the Transfer Petition has filed a Suit for bare injunction, which is also pending before the First Additional District Munsif, Erode. Whileso, the petitioners have filed Tr.O.P.No.83 of 2011, under section 24 of Civil Procedure Code to withdraw the Suit in O.S.No.536 of 2011 from the file of First Additional District Munsif, Erode, and to transfer the same to the file of Principal Sub Court, Erode, for joint trial. The said Transfer Petition has been dismissed by the learned Principal District Judge, Erode, on the ground that the Partition Suit is at the stage of 'Part Heard' and posted for examination of P.W.3 and the point for consideration in both the Suits are different, cause of action also entirely different and the Partition Suit is pending from 1996 and therefore, the attempt made by the petitioners to transfer the Suit of the year 2011 for a joint trial cannot be allowed and therefore dismissed the case. As against which, the present Revision is filed. 3. Mr.V.Bharathidasan, learned counsel for the petitioners would vehemently plead before this Court that the issues, point for consideration and the cause of action in both the Suits are one and the same. The parties have their respective claim in the Partition Suit and now the present Suit is only for a permanent injunction in respect of possession and enjoyment of the property. Therefore, the learned trial Court ought to have considered the request of the petitioners for transfer of O.S.No.536 of 2011, pending on the file of learned First Additional District Munsif, Erode to the file of learned Principal Subordinate Judge, Erode, for joint trial along with O.S.No.441 of 1996. Therefore, the learned trial Court ought to have considered the request of the petitioners for transfer of O.S.No.536 of 2011, pending on the file of learned First Additional District Munsif, Erode to the file of learned Principal Subordinate Judge, Erode, for joint trial along with O.S.No.441 of 1996. The learned counsel also submitted that the learned Principal District Judge, Erode, has not considered the claim case of the petitioners under section 24 of CPC in the right perspective. 4. Heard the learned counsel for the petitioners and perused the materials available on record. 5. Admittedly, a Suit for Partition has been filed in the year 1996 in O.S.No.441 of 1996, the same has been proceeded with trial and the matter is at the stage of examination of P.W.3. Thereafter, the second respondent herein filed a Suit for permanent injunction in the year 2011 in O.S.No.536 of 2011, against the petitioners and respondents 3 & 7 and obtained an order of interim injunction in I.A.No.903 of 2011. It is not in dispute that the Suit for Partition is in the stage of trial and posted for examination of P.W.3 and at that stage a Suit for Permanent Injunction in O.S.No.536 of 2011 has been filed and the petitioners have moved the learned Principal District Judge, Erode, by filing a Petition in Tr.O.P.No.83 of 2011 under section 24 of CPC to withdraw the Suit in O.S.No.536 of 2011 pending before the learned First Additional District Munsif, Erode and transfer the same to the file of learned Principal Subordinate Judge, Erode, for joint trial. However, the learned Principal District Judge, Erode, took a view that the Suit pending before the Principal Sub-Court, Erode, is a Suit for Partition and the same is posted for examination of P.W.3, and the present Suit viz. O.S.No.536 of 2011, is for Permanent injunction, which is pending before the learned First Additional District Munsif, Erode, and the point for consideration in both the Suits are entirely different and the cause of action is also different. 6. Though the petitioners are the defendants in the Suit, it would not presume that both the Suits have to be tried jointly or simultaneously by a single Judge. 6. Though the petitioners are the defendants in the Suit, it would not presume that both the Suits have to be tried jointly or simultaneously by a single Judge. In a Suit for Partition, the question of share in the property has to be decided, whereas the present Suit is for permanent injunction in respect of possession and enjoyment of the property and if both Suits are tried separately, no conflicting decision would arise and since the Suit for Partition is pending from 1996 and the Suit for permanent injunction is of the year 2011. Further, the intention of the petitioners are only to drag on the proceedings, the learned Principal District Judge, Erode, rightly dismissed the case of withdrawal of the Suit and transfer the same for joint trial by the Principal Sub Court, Erode. 7. When a Suit of the year 1996 is taken up for trial, in a judicial stream, it goes for a longer time to conclude the proceedings, since it involves examination of witnesses, production of evidence, both oral and documentary proof and the concerned Court, which is dealing with the Partition Suit has already proceeded and is in the stage of conclusion of trial. The petitioner attempted for transfer of the Suit of the year 2001 for joint trial with the Suit filed in the year 1993. If the proceedings in the Suit of the year 1996 is stalled by entertaining the petition for transfer, definitely, it would not be a proper approach of any of the parties. Even in the interest of justice, it may not be proper to take up the mater, in the absence of any cause of action, common issues and the parties concerned therein and joint trial could not be allowed to stand. All these facts are taken into consideration by the learned Principal District Judge, Erode and has come to a right conclusion that it is not a fit case to entertain at this stage and accordingly dismissed. 8. Looking at from any angle, there is no reason to interfere with such a well considered finding of the learned Principal District Judge, Erode. Therefore, in my considered opinion, there is no manifest error committed by the learned Principal District Judge, Erode, in dismissing Tr.O.P.No.83 of 2011. Accordingly, the Civil Revision Petition deserves no merit consideration and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.