Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 2703 (MAD)

S. Veeraraghavan v. Radhakrishnan (died)

2022-08-16

R.N.MANJULA

body2022
JUDGMENT (Prayer: Transfer Civil Miscellaneous Petition is filed under Section 24 of C.P.C., to withdraw and transfer the suit in O.S.No.45 of 2013, pending on the file of District Munsif Cum Judicial Magistrate Court, Uthiramerur to the City Civil Court, Chennai.) 1. This Transfer Civil Miscellaneous Petition has been preferred to withdraw and transfer the suit in O.S.No.45 of 2013, pending on the file of District Munsif Cum Judicial Magistrate Court, Uthiramerur to the City Civil Court, Chennai. 2. Heard Mr.S.Vijayakumar, learned counsel for the petitioner and Mr.C.Prakasam, learned counsel for the respondents and also perused the materials placed on record. 3. The short facts of the case are as follows: The petitioner is the defendant in the suit filed by the plaintiffs in O.S.No.45 of 2013, pending on the file of the District Munsif Cum Judicial Magistrate, Uthiramerur. The suit has been filed for the relief of permanent injunction against the defendant restraining him from interfering with the plaintiffs' peaceful possession and enjoyment of the plaint schedule property. 4. Mr.S.Vijayakumar, learned counsel for the petitioner submitted that the sole plaintiff died and his legal heirs have filed a petition to implead themselves as legal representatives of the deceased plaintiff and the said proceedings are pending. Being the defendant, the petitioner needs to attend each and every hearing by travelling to Uthiramerur from Chennai; on 06.04.2022, when the defendant went for hearing, he suddenly developed sickness and got admitted in a local Hospital; the petitioner is aged about 90 years and due to his health condition, it is not possible for him to travel to Uthiramerur and hence, the proceedings in O.S.No.45 of 2013 pending on the file of the District Munsif-Cum-Judicial Magistrate, Uthiramerur, should be withdrawn and transferred to any one of the Courts situated in the city of Chennai for proper adjudication. 5. 5. Mr.C.Prakasam, learned counsel for the respondents submitted that just in the interest of justice, the suit should not be transferred to some other Court when it is part heard earlier; the proposed plaintiffs who are the legal heirs of the deceased plaintiff Radhakrishnan filed a petition in I.A.No.208 of 2016 to condone the delay of 80 days in filing the Legal Heir Petition and the same was dismissed; aggrieved over that, they filed C.R.P (PD) No.2349 of 2018; while passing an order in the said Civil Revision Petition on 17.09.2019, this Court has given a direction to dispose the suit within a period of three months from the date of filing of the written statement. 6. Despite the suit was filed in the year 2013, it seems that the written statement has not been filed till the order passed in C.R.P (PD) No.2349 of 2018 on 17.09.2019. From the status report filed by the District Munsif cum Judicial Magistrate, Uthiramerur, it is seen that the consequential amendment petition was filed pursuant to allowing the Legal Representative Petition filed by the proposed parties and the same is pending for counter. 7. Once the consequential petition is allowed and amendments are carried out, the matter will revert back to the stage of cross examination of D.W.1. The amendment being a consequential one, there would not be any trouble in passing an order in the petition even without counter. The defendant who has been examined as D.W.1 is 90 years old and an Advocate by profession. No doubt it will be difficult for him to travel to Uthiramerur and make his appearance for cross examination. Since the trial has already been commenced and the case is a part heard one, it will not be ideal to withdraw the case and transfer the same to any other Court. Instead, it is open to the defendant to seek an appointment of a Commissioner for cross-examining him. 8. Even though a direction was given earlier to dispose the suit at an early date, it is seen from the report of the District Munsif-Cum-Judicial Magistrate, Uthiramerur that the suit could not be disposed due to Covid-19 pandemic and other attendant circumstances. Since the examination of D.W.1 by appointment of a Commissioner will balance the situation, it is not necessary to transfer the case to Chennai. Since the examination of D.W.1 by appointment of a Commissioner will balance the situation, it is not necessary to transfer the case to Chennai. Even if the case is transferred to Chennai, it may not be possible for the defendant to attend the Court at Chennai also. The personal presence of the defendant may not be required except for his cross-examination. Hence, I feel this petition should be disposed with an observation that the revision petitioner / defendant can file a petition seeking for an appointment of Commissioner for cross-examining himself at his place itself. 9. In the result, this Transfer Civil Miscellaneous Petition is disposed with the above observations. The petitioner / defendant is at liberty to file a petition for appointment of Commissioner to examine himself at his own residence. No costs. Consequently, connected miscellaneous petition is closed.