Madras High Court
Bolla Aruna Kumari vs Vijayakumari on 21 February, 2013
Author: M.M.Sundresh
Bench: N.Paul Vasanthakumar, M.Jaichandren, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.02.2013 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR and The Honourable Mr.Justice M.JAICHANDREN Original Side Appeal No.26 of 2013 1.Bolla Aruna Kumari 2.Kari Vijaya Saradhi ... Appellants -vs- 1.Vijayakumari 2.K.Pandurangan ... Respondents Original Side Appeal filed under Order XXXVI Rule 9 of the O.S. Rules read with Clause 15 of Letters Patent against the order dated 25.06.2012 passed in A.No.2298 of 2012 in C.S.No.431 of 2011. For appellants : Mr.P.Subba Reddy For respondents : Mr.P.R.Balasubramanian JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.) This Original Side Appeal has been preferred by the appellants, being aggrieved against the order of the learned single Judge in dismissing the application filed in Appln.No.2298 of 2012 in C.S.No.431 of 2011 seeking to transfer the suit pending between the parties in O.S.No.4031 of 2009 on the file of XVIII Assistant Judge, City Civil Court, Chennai, to be filed along with the subsequent suit pending on the file of this Court in C.S.No.431 of 2011.
2. The appellants filed a suit in O.S.No.4031 of 2009 for the relief of permanent injunction restraining the respondents not to interfere with their possession. Pending the suit, the appellant obtained an order of injunction, which has been confirmed by this Court as well as the Honourable Apex Court.
3. Thereafter, the appellants filed another suit on the file of this Court in C.S.No.431 of 2011 seeking the relief of declaration, possession, mandatory injunction, permanent injunction and for damages. The averment in the subsequent suit is that in pursuant to the interim order obtained in the earlier suit, the respondents have unlawfully and illegally entered into the suit property and occupied the same. Therefore, according to the appellant, the subsequent suit was filed seeking comprehensive relief and also in view of the subsequent developments.
4. In the meanwhile, the earlier suit in O.S.No.4031 of 2009, filed and pending on the file of XVIII Assistant Judge, City Civil Court, Chennai, has been taken up for trial. The appellants filed an application before this Court in C.S.No.431 of 2011 seeking to transfer the earlier suit filed by them. The said application was dismissed on the ground that the earlier suit has reached the trial stage. Hence, the present Original Side Appeal.
5. The learned counsel appearing for the appellant would submit that the parties in both the suits are same. The issues are also same apart from the suit property. The subsequent suit is filed because of the developments occurred during the pendency of the earlier suit. The respondents have taken possession by force. The factum of possession of the appellants was found to be true as per the order passed in the application filed for injunction in O.S.No.4031 of 2009. Therefore, considering the abovesaid facts, the appeal has to be allowed by setting aside the order of the learned single Judge, more so, no prejudice would be caused to the respondent as the appellants are the plaintiffs in both the suits.
6. Per contra, Mr.P.R.Balasubramanian, learned counsel appearing for the respondents, would vehemently contend that there is no bona fides in the application filed. It is true that the respondents are in possession, but the allegations made by the appellants are not true. The earlier suit has reached the trial stage. Taking note of the same, the learned single Judge dismissed the application and hence, no interference is required.
7. Admittedly, the appellants are the plaintiffs and the respondents are the defendants in both the cases. The suit property is also the same. The contentions of the parties on the question of title are also one and the same. According, to the appellants, the subsequent suit has been filed in view of the subsequent developments. From the facts and circumstances of the case, we are of the view that, in the interest of both sides, both the appeal suits will have to be heard together as it would otherwise lead to possibility of different decrees being passed. Further more, the subsequent suit filed is a comprehensive suit being one seeking tittle. Merely because, the earlier suit has reached the trial stage, the same cannot be a ground to reject the application filed, when the dispute, parties, suit property and the issues connected thereto are same. Moreover, it is the plaintiffs who have filed this application. Therefore, considering the abovesaid facts, we have no hesitation in holding that the order of the learned single Judge requires to be set aside. Accordingly, this Original Side Appeal is allowed by setting aside the order of the learned single Judge. Consequently, the application filed in Application No.2298 of 2012 is hereby allowed. However, on the facts and circumstances of the case, no order as to costs.
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