Madras High Court
A.K.Sivasamy vs S.R.Ramakrishnan on 25 April, 2019
Author: C.Saravanan
Bench: C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 02.04.2019
Pronounced On 25.04.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(PD).No.1405 of 2015
and
W.P.No.28815 of 2012
and
M.P.No.1 of 2015 & M.P.No.2 of 2012
C.R.P.(PD).No.1405 of 2015:
A.K.Sivasamy ... Petitioner
Vs.
1.S.R.Ramakrishnan
2.A.K.Gopalsamy
3.A.K.Eswaramoorthy
4.A.K.Vellingiri (deceased)
5.R.Padmavathi
6.The State of Tamil Nadu, Represented by
The Assistant Commissioner of Transports,
Coimbatore.
7.The Regional Transport Officer,
Coimbatore (South), Peelamedu,
Coimbatore.
8.V.Gandhimathi
9.V.Gayathiri
10.V.Vinothini
[RR8 to 10 B/R as LRS of the deceased 4th
respondent viz. A.K.Vellingiri vide Court order
dated 23.10.2017 made in C.M.P.No.18103 of
2017 in C.R.P.No.1405 of 2015 by NKKJ]
... Respondents
http://www.judis.nic.in
2
Prayer: Civil Revision petition is filed under Article 227 of the
Constitution of India, 1950 to reject the plaint in O.S.No.222 of 2015
on the file of the III Additional Sub Court at Coimbatore.
For Petitioner : Mr.MA.P.Thangavel
For Respondents : Mr.K.Nagendra Prasad for
Mr.E.K.Kumaresan for R1
Mr.M.Elumalai, Government Advocate
for R6 & R7
R2 to R5 & R8 to R10 – No appearance
W.P.No.28815 of 2012:
S.R.Ramakrishnan ... Petitioner
Vs.
1.The Deputy Transport Commissioner,
Coimbatore.
2.The Registering Authority cum
Regional Transport Officer,
Coimbatore (South),
Coimbatore.
3.A.K.Sivasamy
[R3-impleaded as per order dated 15.12.2014 by
TSSJ in M.P.No.1 of 2014 in W.P.No.28815 of 2012]
... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India to issue a writ of certiorari call for the records in the file of the 1st
respondent in Sa.Mu.No.1859/A3/2012 dated 05.10.2012 and the
records relating to the 2nd respondent in Na.Ka.No.48943/A2/2011
dated
http://www.judis.nic.in 02.02.2012 and quash the same.
3
For Petitioner : Mr. Mr.K.Nagendra Prasad for
Mr.E.K.Kumaresan
For Respondents : Mr.M.Elumalai, Government Advocate
for R1 & R2
Mr.MA.P.Thangavel for R3
COMMON ORDER
By this common order both petitions are disposed. These petitions arise in the same factual background.
2.The above Writ Petition has been filed for issuance of a Writ of Certiorari to call for records on the file of the Deputy Transport Commissioner, Coimbatore in Sa.Mu.No.1859/A3/2012, dated 05.10.2012 and the records relating to the 2nd respondent therein in Na.Ka.No.48943/A2/2011 dated 02.02.2012 and to quash the same.
3.The above Civil Revision Petition has been filed to reject the plaint in O.S.No.222 of 2015 on the file of the III Additional Subordinate Court, Coimbatore.
4.The writ petitioner (1st respondent in C.R.P) is the plaintiff in O.S.No.222 of 2015 on the file of the III Additional Subordinate Court, Coimbatore.
http://www.judis.nic.in 4
5.The revision petitioner is the 2nd defendant in O.S.No.222 of 2015 on the file of the III Additional Subordinate Court, Coimbatore and is not a party in the above writ petition.
6.Earlier by an order dated 4.12.2012, the above Writ Petition was allowed. However, on further appeal by the respondents herein, the said order was set aside by an order dated 07.08.2014 in W.A No.320 of 2013
7.By an order dated 29.09.2016, both these cases were directed to be listed and heard together. Therefore, both the Writ Petition and the Civil Revision are taken up for hearing and disposed.
8.O.S.No.222 of 2015 has been filed by the writ petitioner (1st respondent in C.R.P) in the above Civil Revision Petition for the following relief:-
1. To declare that the plaintiff* is the absolute owner of the suit property car bearing No.TN.39 AZ.5000 as per the sale deed dated 03.01.2011 and grant consequential permanent injunction restraining the defendants 1, 2 and 7 in way interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
2. To direct the defendants 1, 2 and 7 to pay the cost of this suit
3. And to pass such other suitable orders which are deemed fit and proper to the circumstances of this case and thus render justice.
(*Writ Petitioner who is the 1st respondent in the above Civil Revision Petition and the plaintiff in O.S.No.22 of 2015) http://www.judis.nic.in 5
9.The revision petitioner/ 2nd defendant has filed the present Civil Revision Petition to reject the plaint in O.S.No.222 of 2015 on the ground that the relief claimed in W.P.No.28815 of 2012 is over lapping with the relief sought for in the said suit and therefore the plaint should be rejected. This present Civil Revision Petition has been filed under Article 227 of the Constitution of India without filing an application under Order 7 Rule 11 of CPC to reject the plaint.
10.The writ petitioner (1st respondent in C.R.P) the plaintiff in the said suit is the nephew of late A.K.Palanisamy who died intestate on 12.01.2011. The revision petitioner on the other hand is the other brother of late A.K.Palanisamy.
11.The 2nd, 3rd and 4th respondents (since deceased) in the Civil Revision Petition are the siblings of late A.K.Palanisamy and the revision petitioner.
12.The writ petitioner (1st respondent in C.R.P) is the son of Rathinasamy and R.Padmavathy, the 5th respondent in CRP who is the sister of the late A.K.Palanisamy. Thus, the dispute herein is between the nephew and his maternal uncle.
http://www.judis.nic.in 6
13.The 8th, 9th and 10th respondents in the CRP are the legal representative of 4th respondent A.K.Vellingiri who were impleaded after his death by an order dated 23.10.2017 in C.M.P.No.18103 of 2017. They are the legal heirs of deceased 4th respondent in the CRP.
14.Late A.K.Palanisamy had purchased a Toyota Innova bearing registration No. TN 38 AZ 5000. The writ petitioner (1st respondent in C.R.P) got the registration transferred to his name on 28.01.2011 after discharging the balance outstanding with Indian Overseas Bank and after the getting necessary documents and clearance from the said bank.
15.The revision petitioner challenged the aforesaid name transfer before respondents in the writ petition i.e 6th & 7th respondents in the present Civil Revision Petition.
16.Under these circumstances, the transfer made in the RC Book of the said vehicle was canceled by an order dated 05.10.2012 of the 6th respondent the Assistant Commissioner of Transports as confirmed by the 7th respondent.
17.Thus, W.P.No.28815 of 2012 was filed by the 1st respondent in the above C.R.P. However, it was filed without impleading the http://www.judis.nic.in 7 revision petitioner and the other legal heirs of late A.K.Palanisamy. The above writ petition was allowed on 04.12.2012. However, the said decision was reversed by an order dated 07.08.2014 of the Hon'ble Division Bench of this Court in W.A.No.320 of 2013.
18.Liberty was given to the writ petitioner (1st respondent in C.R.P) to implead the petitioner in C.R.P as a party within a period of two weeks.
19.It is submitted that the writ petitioner (1st respondent in C.R.P) had created fraudulent document by forging the signature of deceased A.K.Palanisamy and colluded with Indian Overseas Bank and thereby got the name transferred.
20.The revision petitioner has also filed Crl.O.P.No.19028 of 2011 for registring FIR against the writ petitioner (1st respondent in C.R.P) for alleged fraudulent and impersonation of the signature of the deceased A.K.Palanisamy.
21.Meanwhile, the police have also registered an FIR in Crime No.1562 of 2011 for the offense u/s.406,420,467 & 476 of IPC aginst the writ petitioner (1st respondent in C.R.P). The writ petitioner (1st respondent in C.R.P) filed Crl.O.P.No.7475 of 2012 for anticipatory bail, which was granted by an order dated 26.03.2012. http://www.judis.nic.in 8
22.The revision petitioner has approached this Court to complete investigation in Crime No.1562 of 2011 in Crl.O.P.No.6513 of 2012, which was ordered on 19.03.2012 and directed the said police to complete the investigation and file final report within a period of 8 weeks.
23.Thereafter the revision petitioner has also filed an contempt petition stating that the police colluded with the writ petitioner (1st respondent in C.R.P) not obeyed the order.
24.The police had earlier filed a final report on 27.04.2013. The learned VI JM has issued a warrant of appearance to the writ petitioner (1st respondent in C.R.P), who did not appear and fresh summons were sent to the writ petitioner (1st respondent in C.R.P).
25.The revision petitioner has also filed an another Crl.O.P.No.8080 of 2014 to direct the VI JM to complete the trial in prescribed time in C.C.No.274 of 2013, and the Court was directed to complete the trial within 2 months.
26. I have considered the rival submissions and documents were recorded. It is a family dispute between maternal uncle and nephew. http://www.judis.nic.in 9 Both are trying to wrest control over the asset of late A.K.Palanisamy namely Toyota Innova Car. Instead of filing an application to reject the plaint, the revision petitioner has rushed to the court under Article 227 of the Constitution of India to reject the plaint.
27.In my view, the relief in said writ petition can be granted subject to out come in the suit. Even though the suit has been filed belatedly, the issues as to whether writ petitioner (1st respondent in C.R.P) is entitled to the relief can be decided only in the suit. Therefore, I am of view the present Civil Revision Petition challenging the proceedings to short circuit the proceedings and to non suit, plaintiff/writ petitioner (1st respondent in C.R.P) has to be refused outright. Consequently, I am of the view that the present Civil Revision Petition is liable to be dismissed.
28. In view of the above observation, the above writ petition is closed. The parties are entitled to approach the concerned authority subject to out come of the above suit.
29.Considering the fact that the suit is of the year 2015 and the vehicle is of the year 2010. I am of the view that to meet the ends of justice, it would be proper to direct the III Additional Subordinate Court, Coimbatore to take up the O.S.No.222 of 2015 and dispose the http://www.judis.nic.in 10 same within a period of nine months from the date of receipt of a copy of this order.
30.The Civil Revision Petition stands dismissed with above observations and the Writ Petition stands closed. No costs. Consequently connected Miscellaneous Petitions are also closed.
25.04.2019 Index :Yes/No Internet :Yes/No jen To
1.III Additional Subordinate Court, Coimbatore.
2.The Assistant Commissioner of Transports, The State of Tamil Nadu, Coimbatore.
3.The Regional Transport Officer, Coimbatore (South), Peelamedu, Coimbatore.
4.The Deputy Transport Commissioner, Coimbatore.
http://www.judis.nic.in 11 C.SARAVANAN, J.
jen Pre-delivery order in C.R.P.(PD).No.1405 of 2015 and W.P.No.28815 of 2012 and M.P.No.1 of 2015 & M.P.No.2 of 2012 25.04.2019 http://www.judis.nic.in