Madras High Court
Perumayee W/O. Nallusamy vs Madhammal W/O. Thangavel on 24 April, 2024
C.R.P. No.2509 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.04.2024
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
C.R.P. No.2509 of 2022
Perumayee W/o. Nallusamy ... Petitioner
Vs.
Madhammal W/o. Thangavel ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of
Constitution of India praying to set aside the order passed in a joint memo
dated 21.03.2022 filed in O.S. No.102 of 2016 on the file of the Court of
Additional Subordinate Judge, Namakkal and direct the Trial Court to
record common evidence in O.S. No.102 of 2016.
For Petitioner : Mr. A. Muthukumar
For Respondent : Mr. S. Saravana Kumar
ORDER
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https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022 The Civil Revision Petition is filed as against the order passed by the Trial Court in the joint memo dated 21.03.2022 filed by the respondent / plaintiff, wherein the Trial Court has passed an order that “since oral evidence has been recorded in O.S. No.108 of 2021 and in view of I.A. No………./2021 is dismissed, which seeks permission of this Court to withdraw the evidence tendered by Nallusamy, the objection raised by the defendant is overruled and as per this memo, evidence is ordered to be recorded in O.S. No.108 of 2021. As against the said order, the present revision is filed by the plaintiff in O.S. No.108 of 2021.
2. According to the petitioner, she filed a Suit in O.S. No.132 of 2016 on the file of the Additional District Munsif, Namakkal for the relief of declaration and permanent injunction and thereafter, the respondent herein has filed a Suit in O.S. No.102 of 2016 on the file the Additional Subordinate Court, Namakkal for the reliefs of partition, declaration and permanent injunction. As per the order passed in Transfer O.P. No.88 of 2019 on the file of the Principal District Court, Namakkal, the Suit in O.S. No.132 of 2016 pending on the file of the Additional District Munsif, 2/9 https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022 Namakkal was transferred to the file of Additional Subordinate Court, Namakkal and joint trial was ordered and thereafter, the plaintiff in OS. No.102 of 2016 has filed a memo stating that the chief examination of PW1 in O.S. No.108 of 2021 has been recorded and the Suit was transferred by the order of the Principal District Court, Namakkal to the file of Additional Subordinate Court, Namakkal from the file of Principal District Munsif Court, Namakkal and hence the evidence let in O.S. No.108 of 2021 is to be treated as evidence in O.S. No.102 of 2016. In that memo, the Trial Court has passed order that the evidence is ordered to be recorded in O.S. No.108 of 2021. Therefore the order passed by the Trial Court is not correct. The Suit in O.S. No.102 of 2016 is a comprehensive Suit and in that Suit, the prayer is partition, declaration and for injunction and in that Suit, there are three items of suit properties were mentioned. But in the Suit in O.S. No.108 of 2021, only one item of property alone is mentioned as Suit property and the relief is only for declaration and injunction. Therefore, the evidence has to be recorded in the comprehensive Suit in OS.No.102 of 2016, but the Trial Court ordered to record evidence in O.S. No.108 of 2021. Therefore, the order passed by the Trial Court is not correct. 3/9 https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022
3. According to the respondent, the Suit in O.S. No.108 of 2021, the plaintiff has filed proof affidavit as PW1 and thereby, the said evidence recorded in O.S. No.108 of 2021 can be treated as evidence in O.S. No.102 of 2016, since already the proof affidavit was filed. To that effect, the plaintiff has filed a joint memo to treat the evidence let in O.S. No.108 of 2021 as evidence in O.S. No.102 of 2016 and in that memo, the Trial Court has correctly ordered to record the evidence in O.S. No.108 of 2021. Therefore, the order passed by the Trial Court is in order and hence the revision petition is liable to be dismissed.
4. The learned counsel appearing for the petitioner would contend that the present Suit in OS. No.108 of 2021 is only in respect of one item for the relief of declaration and permanent injunction, whereas the comprehensive Suit in OS. No.102 of 2016 was filed before the Additional Subordinate Court, Namakkal for the relief of partition, declaration and 4/9 https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022 other reliefs and the present Suit was original filed before the Principal District Munsif Court, Namakkal and thereafter, as per the order passed by the learned Principal District Court, Namakkal, the said Suit was transferred to the file of Additional Subordinate Court, Namakkal from the file of Principal District Munsif Court, Namakkal. Therefore, the evidence has to be recorded in the comprehensive Suit. Already, the petitioner has filed another petition to withdraw the evidence of PW1, which was filed by the husband of the petitioner, without the consent and knowledge of the petitioner and therefore, the evidence of PW1 has not been completed. Therefore, evidence has to be recorded in the main Suit in O.S. No.102 of 2016, but the Trial Court without considering the same, ordered to record the evidence in O.S. No.108 of 2021. Therefore, the order passed by the Trial Court is liable to be set aside.
5. The learned counsel appearing for the respondent would contend that already as per the order passed by the Principal District Court, Namakkal in Tr. O.P.No.88 of 2019, the Suit in O.S. No.108 of 2021 was transferred to the file of learned Additional Subordinate Judge, Namakkal from the file of Principal District Munsif Court, Namakkal for joint trial 5/9 https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022 along with O.S. No.102 of 2016 on the file of learned Subordinate Judge, Namakkal. Therefore, as per the order of the learned Principal District Judge, Namakkal joint trial was conducted. Since proof affidavit of PW1 was filed in the Suit in O.S. No.108 of 2021, it can be treated as evidence in the main Suit in OS. No.102 of 2016. To that effect, the respondent has also filed joint memo and in that memo, the Trial Court has correctly ordered to record evidence in O.S. No.108 of 2021. Therefore, the order passed by the Trial Court is in order.
6. Head both sides’ and perused all the materials available on record.
7. It is an admitted fact that the plaintiff in O.,S. No.108 of 2021 is a not a party to the Suit in O.S. No.102 of 2016 and also it is an admitted fact that the proof affidavit was filed by the husband of the plaintiff, who is also not a party to the Suit in O.S. No.108 of 2021, but he is the defendant in O.S. No.102 of 2016. Therefore, filing of a proof affidavit by the defendant in O.S. No.102 of 2016 as PW1 in the Suit in O.S. No.108 of 2021 itself is questioned by the petitioner.
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8. Further, the Suit in O.S. No.132 of 2016 was originally filed before the learned Additional Diustrict Munsif Court, Namakkal and thereafter as per the order of the learned Principal District Judge, Namakkal, it was transferred to the file of learned Additional Subordinate Judge, Namakkal re-numbered as O.S. No.108 of 2021. Therefore, the original jurisdiction of Suit in O.S. No.108 of 2021 is the Additional District Munsif Court, Namakkal. Further the relief sought for in the Suit in O.S. No.102 of 2016 is for partition, declaration and permanent injunction with respect to three items of properties, whereas the Suit in O.S. No.108 of 2021 is for declaration and permanent injunction with respect to only one suit property, which is showed as one of the properties among three properties in O.S. No.102 of 2016. Therefore, O.S. No.102 of 2016 is a comprehensive Suit and the Trial Court ought to have recorded evidence in O.S. No.102 of 2016.
9. It is also an admitted fact that so far, the Trial has not been commenced in O.S. No.108 of 2021 and the proof affidavit has only been filed as evidence of PW1, that is also under challenge. At this stage, it is 7/9 https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022 appropriate to direct the Trial Court to record evidence in OS. No.102 of 2016 since, it is a comprehensive Suit and originally filed before the Subordinate Court, Namakkal. The evidence recorded in O.S. No.102 of 2016 shall be treated as evidence in O.S. No.108 of 2021. Therefore the order passed by the Trial Court in a joint memo dated 21.03.2022 is hereby set aisde and the Trial Court is directed to record the evidence in O.S. No.102 of 2016 and the same evidence shall be treated as evidence in O.S. No.108 of 2021.
10. In the result, the Civil Revision Petition is allowed by setting aside the order of the Trial Court passed in joint memo dated 21.03.2022. No costs. Consequently, the connected miscellaneous petition is closed.
24.04.2024 [2/2] Index : Yes / No Internet : Yes / No Neutral Citation Case :Yes/No mjs To The Additional Subordinate Judge, Namakkal.
8/9 https://www.mhc.tn.gov.in/judis C.R.P. No.2509 of 2022 P.DHANABAL., J.
mjs C.R.P. No.2509 of 2022 24.04.2024 [2/2] 9/9 https://www.mhc.tn.gov.in/judis