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2012 DIGILAW 3324 (MAD)

K. Selvaraj v. Chitradevi

2012-07-27

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition is filed challenging the order dated 12.1.2012 in Tr.O.P.No.99 of 2011 on the file of the Principal District Court, Erode. 2. The revision petitioner is the plaintiff in representative capacity as partner in O.S.No.335 of 2009 on the file of the Principal District Munsif Court, Erode and the second defendant in O.S.No.403 of 2010 on the file of Sub-Court, Erode. The first suit was filed for a permanent injunction restraining the defendants from entering into the partnership premises either at the Head Office or the Branch Office or interfering in any manner with the internal management of the plaintiff's firm. The other suit is filed by the first respondent herein for a judgment and decree, directing the defendants to surrender the vacant possession of the suit property within a time frame and to pay damages for use and occupation of the suit property at Rs.10,000/-per month from the date of the suit till the date of delivery of possession. 3. The suits were contested by the parties. It is seen from the records that O.S.No.335 of 2009 is pending at the stage of arguments and O.S.No.403 of 2010 is at the stage of trial. The petitioner is in the capacity of a partner representing the company Mars Dye Chem, a registered Partnership firm. 4. While so, O.S.No.335 of 2009 on the file of the Principal District Munsif Court, Erode for permanent injunction, was dismissed ex-parte on 7.8.2009. Thereafter, application in I.A.No.1183 of 2009 under Section 5 of the Limitation Act, was filed and the same was allowed on condition on 28.1.2011 on payment of costs. Then, the petition in I.A.No.163 of 2011 filed under Order 9 Rule 13 C.P.C. was taken up for enquiry, and in the meanwhile, the petitioner in the capacity as the partnership firm, preferred C.R.P. (NPD).No.1066 of 2011 before this Court against the findings in I.A.No.1183 of 2009, in which, this Court granted stay on 17.3.2011. In view of the same, the learned Principal District Munsif, Erode has periodically adjourned the matter stating that the stay was still in force. The suit in O.S.No.403 of 2010 pending on the file of the Sub-Court, Erode, is for delivery of possession besides damages, and it is pending for trial. In view of the same, the learned Principal District Munsif, Erode has periodically adjourned the matter stating that the stay was still in force. The suit in O.S.No.403 of 2010 pending on the file of the Sub-Court, Erode, is for delivery of possession besides damages, and it is pending for trial. At that stage, the petitioner filed Transfer Original Petition in Tr.O.P.No.99 of 2011 for withdrawal of O.S.No.335 of 2009 pending on the file of the Principal District Munsif Court, Erode and transfer the same to the file of the Principal Subordinate Judge's Court, Erode to try along with O.S.No.403 of 2010 pending on its file. The said Tr.O.P. was dismissed by the impugned order by the learned Principal District Court, Erode, on the ground that the points to be determined in both the suits are totally different from each other, against which, the present C.R.P. is filed by the petitioner. 5. This Civil Revision Petition was taken on file on 2.3.2012 and notice of motion was ordered, returnable in three weeks and this Court granted interim stay till then. Thereafter, it was not extended and the matter stood thus. 6. Mr.N.Manokaran, learned counsel for the petitioner, in his submissions, has strenuously contended that it is not necessary that all questions or issues that arise should be common to both the actions and if some issues and some evidence are common, it would be sufficient for joint trial, especially, when the two actions arise out of the same transaction and therefore, the power to order for joint trial cannot be curtailed by introducing a restriction. Therefore, the learned Principal District Judge is not correct in dismissing the Tr.O.P. In support of his submissions, he relied on the following decision of the Supreme Court reported in 2007 (1) SCC 97 (SBI Vs. Ranjan Chemicals Ltd): "10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counterclaim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendances by the counsel and witnesses and the trial Judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counterclaim by the Debt Recovery Tribunal, the court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions." 7. On the other hand, Mr.Chandrasekaran, learned counsel appearing for the respondents 1 and 3 contended that one suit was earlier dismissed ex-parte and thereafter, the matter was taken up on condone delay application in I.A.No.1183 of 2009 and the said order has been challenged in C.R.P. before this Court in C.R.P. (NPD).No.1066 of 2011 and thereafter, the matter has been kept pending because of the stay granted by this Court. Further, the said CRP was disposed of on 1.2.2012. Then the suit in O.S.No.335 of 2009 has been proceeded further and it is at the stage of arguments, and the learned counsel for the respondents 1 and 3 consistently pleaded before this Court that the cause of action, issues and the subject matter are totally different, and therefore, both the suits cannot be tried together and as such, the findings of the trial Court are right and it need not be interfered with. 8. Admittedly, the petitioner is a partner in the partnership firm and the partnership firm in the representative capacity of the petitioner as the partner, has filed the suit in O.S.No.335 of 2009 for permanent injunction from entering into the partnership business or interfering in any manner with the internal management of the plaintiff's firm. 8. Admittedly, the petitioner is a partner in the partnership firm and the partnership firm in the representative capacity of the petitioner as the partner, has filed the suit in O.S.No.335 of 2009 for permanent injunction from entering into the partnership business or interfering in any manner with the internal management of the plaintiff's firm. In the said suit, the firm is the subject matter of the suit and the petitioner has been described in the schedule property as Head Office and Branch Office situated both at Erode and Tirupur respectively. 9. Similarly, the first respondent filed the suit in O.S.No.403 of 2010 on the file of the Subordinate Judge's Court, Erode against the petitioner as well as the other respondents for delivery of possession besides damages. The properties in S.No.246 corresponding to R.S.300/1,2, which is re-assigned as 300/2A of Periyasemur Village is the subject matter of the suit. 10. It is seen that O.S.No.335 of 2009 was dismissed ex-parte on 7.8.2009 for nonappearance of the defendants. Therefore, the application in I.A.No.1183 of 2009 was filed by Saravanakumar, the third respondent herein, under Section 5 of the Limitation Act, which was allowed on condition on 28.1.2011 with costs, as against which, the petitioner moved this Court in C.R.P.(NPD).No.1066 of 2011, in which, this Court has granted stay on 17.3.2011. Ultimately, the said C.R.P. was disposed on 1.2.2012 with the following observations: 2. Mr.N.Manoharan, learned counsel appearing for the revision petitioner submitted that the respondent by making false affidavit has committed fraud on the Court. According to the learned counsel for the revision petitioner the respondent has stated in the affidavit that the revision petitioner manoeuvred to get endorsement on the summons in collusion with the amin and the respondent never refused to receive any summons from the Court. In fact, the summons were served by the amin on the respondent, who refused to receive the same and thereafter by making false allegation, the respondent has filed the application to condone the delay and without appreciating the same, the Court below condoned the delay. 3. I am unable to accept the contention of the learned counsel for the petitioner having regard to the number of days of delay. I am not going into the merits of the submissions made by the learned revision petitioner as to whether fraud has been practised upon the Court below by the respondent or not. 3. I am unable to accept the contention of the learned counsel for the petitioner having regard to the number of days of delay. I am not going into the merits of the submissions made by the learned revision petitioner as to whether fraud has been practised upon the Court below by the respondent or not. Even assuming that the summons were served on the respondent and the application having been filed within 23 days from the date of passing of the exparte decree, the lower Court has rightly exercised its discretion and condoned the delay of 23 days and I do not want to interfere with the exercise of discretion by the Court below. Hence, this revision is dismissed. The Court below is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order. No costs. Consequently the connected M.P.No.1 of 2011 is also dismissed." Thereafter, the suit was proceeded with the trial and now is pending for arguments. 11. Equally, the civil suit in O.S.No.403 of 2010 on the file of the Sub-Court, Erode for delivery of possession, besides damages, has been proceeded with the trial and at that stage, the petitioner filed the Transfer O.P. for withdrawal of O.S.No.335 of 2009 pending on the file of the Principal District Munsif Court, Erode and transfer the same to the file of the Principal Subordinate Judge's Court, Erode to try along with O.S.No.403 of 2010 pending on its file. The trial Court, on taking note of every aspect of the matter, came to the conclusion that the subject matter of the suit in O.S.No.335 of 2009 is in respect of business, whereas, O.S.No.403 of 2010 is for delivery of possession, besides damages. There is no nexus to try both the proceedings in a single Court and there is no need to hear both the proceedings. Besides that, the stage of the cases was not furnished. 12. Further, the trial Court held in the impugned order that already O.S.No.335 of 2009 was disposed of, in which the application was filed to set aside the ex-parte decree and the said application was still pending and the revision was also pending before this Court. There was condonation application, as against which, the revision was pending. 12. Further, the trial Court held in the impugned order that already O.S.No.335 of 2009 was disposed of, in which the application was filed to set aside the ex-parte decree and the said application was still pending and the revision was also pending before this Court. There was condonation application, as against which, the revision was pending. Therefore, the points to be determined are totally different from each other and the trial Court dismissed the Tr.O.P. 13. During the course of arguments, learned counsel on either side produced a copy of the order of this Court made in C.R.P.(NPD).No.1066 of 2011, dated 1.2.2012 and the order of this Court in the said case would make it clear that the discretionary jurisdiction exercised by the trial Court in condoning the delay, was held not to be entertained and therefore, this Court dismissed the said C.R.P. Thereafter, the suit has been proceeded further. It is placed on record by filing the list of the stage of two suits in different Courts, that in O.S.No.335 of 2009, the suit is in the stage of arguments and O.S.No.403 of 2010 is in the stage of trial. 14. It is also pointed out that O.S.No.335 of 2009 on the file of the Principal District Munsif, Erode, will go further over the Sub-Court/District Court, as the Court of first instance of First Appeal and the High Court as the Second Appeal. whereas, O.S.No.403 of 2010, pending before the Sub-Court, Erode, goes to High Court as First Appeal. Therefore, learned counsel for the respondents 1 and 3 argued that clubbing of the matter takes away the rights of the parties in respect of the further appeals. 15. It is seen from the records that one suit is for permanent injunction in respect of the partnership firm restraining the defendants from entering into the partnership premises either at the Head Office or at the Branch Office or in interfering in any manner with the internal management of the plaintiff and the other suit is for delivery of possession besides damages in respect of particular property in S.No.246 and corresponding to R.S.No.300/1,2, which is re-assigned as 300/2A of Periyasamur Village. The subject matter of the suits, the cause of actions and the points to be determined are totally different from each other. 16. The subject matter of the suits, the cause of actions and the points to be determined are totally different from each other. 16. It is true as held by the Supreme Court in the decision reported in 2007 (1) SCC 97 (cited supra) relied on by the learned counsel for the petitioner that it is not necessary that all questions or issues that arise common to both the cases and some times, some issues and some evidence are common and that would be sufficient for joint trial. But, in this case, the partnership firm has gone to the trial Court for a permanent injunction in respect of the business matter restraining the defendants from entering into the partnership firm, whereas in the other suit, it is for delivery of possession of the property in question. 17. In this case, all the things which are involved in both the suits, namely, the issues, evidence and the determination of points, are totally different from each other. It is to be further noticed that the first respondent herein is not a party in O.S.No.335 of 2009. On a perusal of the plaint filed in O.S.No.335 of 2009, it is seen that the first respondent is not a party to the suit, and therefore, the parties in these proceedings are not the same. 18. In the light of the above background and looking into every factors involved, this is not a fit case to give joint trial and therefore, the findings of the trial Court in not permitting the petitioner to have joint trial of both the suits, do not call for interference by this Court exercising jurisdiction under Article 227 of the Constitution of India. 19. Finding no merits, the C.R.P. is dismissed. No costs. The Miscellaneous Petitions are closed.