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2013 DIGILAW 1388 (MAD)

N. Annapoorna v. P. Vijayakumar

2013-03-21

M.JAICHANDREN, M.M.SUNDRESH

body2013
Judgment :- 1. The appellant was the applicant before the learned single Judge. Two applications, viz., Application Nos.1044 and 1045 of 2010 have been filed by the appellant, [i] seeking an interim order of injunction restraining the respondents from dealing with the suit schedule property in any manner, including by way of sale, mortgage, lease or any other mode, and [ii] seeking an interim order of injunction restraining the respondents from interfering with the rights of the tenants, who are said to have been inducted by the appellant. The appellant has also filed two more applications in Application Nos.2963 and 2964 of 2012 [i] seeking a direction against the 1st respondent to produce a copy of the passport and the copy of the memo of compromise recorded in the decree, dated 29.3.1993, passed in OS No.9686 of 1992 by the XIth Assistant City Civil Court, Chennai, and [ii] to permit the appellant to produce the certified copy of the judgment dated 29.3.1993 and the certified copy of the partition deed dated 8.4.1996 executed between the 1st respondent and one P. Rajeswari, which was registered as document No.1176 before the Sub Registrar, Kancheepuram. 2. The learned single Judge, by a common order, dismissed the applications filed in OA No.549 of 2012 and 550 of 2012, which were filed seeking extension of the interim orders granted already in OA Nos.1044 and 1045 of 2010, besides dismissing OA Nos.1044 and 1045 of 2010 and Application Nos.2963 and 2964 of 2012, respectively. Challenging the order of the learned single Judge passed in OA No.549 of 2012 and Application Nos.2963 and 2964 of 2012, the present appeals have been filed. It is seen that the appellant has not filed any appeal against the order of the learned single Judge passed in O.A.No.550 of 2012. 3. We have perused the order passed by the learned single Judge. The learned single Judge, has, in fact, passed orders misconstruing the applications filed for extension of the interim orders granted earlier, as one seeking interim injunction. Similarly, without construing the case of the appellant, vis-a-vis, that of the respondents, the learned single Judge dismissed the applications filed in OA Nos.2963 and 2964 of 2012, applying the very same reasons. The learned single Judge, has, in fact, passed orders misconstruing the applications filed for extension of the interim orders granted earlier, as one seeking interim injunction. Similarly, without construing the case of the appellant, vis-a-vis, that of the respondents, the learned single Judge dismissed the applications filed in OA Nos.2963 and 2964 of 2012, applying the very same reasons. In other words, the learned single Judge has not considered the question as to whether the appellant is entitled to seek a direction to the 1st respondent to produce the document, which is in his possession, apart from his entitlement for marking the documents in his possession. 4. When the matter is taken up today, a counter affidavit has been filed by the learned counsel appearing for the respondents to the effect that the respondents would not alienate or encumber the suit property. The undertaking given in the counter affidavit filed by the respondents is hereby recorded and accordingly, in view of the said undertaking, OSA No.29 of 2013 is closed. In view of the order passed in OSA No.29 of 2013, we are of the view that there is no necessity to pass orders in OA.No.1044 of 2012. Therefore, the said application is also closed in view of the undertaking given by the respondents to the effect that they would not alienate or encumber the suit property, pending disposal of the suit. 5. Now, coming to the appeals filed in OSA Nos.30 and 31 of 2013 are concerned, as discussed above, the learned single Judge, has not gone into the merits of those two applications filed by the appellant in Application Nos.2963 and 2964 of 2012. Therefore, inasmuch as the learned single Judge has not considered the applications on merits, particularly with reference to the averments made in the affidavits filed in support of those two applications as well as the counter affidavit filed by the respondents, we deem it fit to set aside the order of the learned single Judge, insofar as OSA Nos.30 and 31 of 2013 are concerned and remit the applications filed in Application Nos.2963 and 2964 of 2012 to be decided by the learned single Judge, on its own merits and in accordance with law, by taking into consideration the averments made by the respective parties in their affidavits/counter affidavits. We request the learned single Judge to pass orders on those applications within a period of four weeks. No costs.