Madras High Court
T. Tamil Kodi @ Tamilselvi W/O. ... vs M.S. Kasthuri W/O. A. Perumal on 1 March, 2024
C.R.P.No.940 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.940 of 2019
and
C.M.P. No.6137 of 2019
T. Tamil Kodi @ Tamilselvi W/o. Thangaraj ... Petitioner
Vs.
1. M.S. Kasthuri W/o. A. Perumal
2. R. Subbulakshmi W/o. A. Rajasekar
3. M. Pushpa W/o. P. Muniasamy
4. K. Thulasimani S/o. Late Kalimuthu
5. K. Jayapaul S/o. Late Kalimuthu
6. V. Munusamy H/o. Late Vijayalakshmi
7. M. Yuvaraj S/o. V. Munusamy
8. M. Sasikala W/o. A. Jayamurugan
9. M. Hemalatha W/o. V. Sankar
10. M. Manimala W/o. E. Alphones
11. V. Vimala W/o. A. Velu ...Respondents
PRAYER: Civil Revision Petition filed under Section 227 of the Constitution
of India praying to set aside the fair and decreetal order dated 22.11.2018
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C.R.P.No.940 of 2019
passed by the learned I Assistant Judge, City Civil Court, Chennai made in I.A.
No.5170 of 2015 in O.S. No.187 of 2014.
For Petitioner : Mr.S. Venkatesh
For Respondents : Mr. T.P. Sekar [for R1 to R10]
ORDER
The Civil Revision Petition is filed challenging the order passed by the trial Court dismissing the application filed by the petitioner / 1 st defendant seeking rejection of plaint.
2. The respondents 1 to 10 filed a suit for partition. The petitioner herein who is the 1st defendant in the suit filed the instant application for rejection of plaint on the ground that the respondents 1 to 10 / plaintiffs claiming right under a Will allegedly executed by one Krishnaveniammal and the said Will was not probated and therefore cause of action pleaded by the respondents fails and there is no cause of action for maintaining the suit prayer. The petition for rejection of plaint was dismissed by the Trial Court and aggrieved by the same, the petitioner is before this Court. 2/7 https://www.mhc.tn.gov.in/judis C.R.P.No.940 of 2019
3. The learned counsel appearing for the petitioner submitted that sister of Krishnaveniammal namely one Babu Ammal filed a Suit in O.S. No.6037 of 1976 on the file of the learned XVII Assistant City Civil Judge, Chennai against the respondents and also the petitioner and the same is pending. It is stated that the exparte preliminary decree for partition was already filed in O.S. No.6037 of 1976 and the final decree petition is pending. The learned counsel for the petitioner submitted that the present suit property is in respect one of the portion of the suit property decreed in O.S. No.6037 of 1975 and hence the suit for partition filed by the respondents 1 to 10 in respect of the portion of the property covered by earlier preliminary decree for partition is not at all maintainable.
4. A perusal of the affidavit filed in respect of the petition to reject the plaint would suggest that the points raised by the learned counsel for the respondents was not at all raised in the affidavit. As per the averments in the affidavit filed in support of the petition, the petitioner sought for rejection of the plaint only on the ground that the respondents 1 to 10 failed to probate the Will of Krishnaveniammal relied on by him. It is not in dispute that both the 3/7 https://www.mhc.tn.gov.in/judis C.R.P.No.940 of 2019 petitioner and the respondents 1 to 10 are children of Krishnaveniammal. Therefore dehors the Will, the petitioner and the respondents 1 to 10 are entitled to a share in the estate of Krishnaveniammal. In such circumstances, the main ground that was projected by the petitioner in respect of the petition for rejection of plaint is not acceptable by this Court.
5. As far as the other points raised by the learned counsel for the petitioner regarding the pendency of earlier partition suit in O.S. No.6037 of 1976 is concerned, the said point was not raised in the affidavit filed in support of the petition for rejection of plaint. The learned counsel for the petitioner, by taking this Court to the counter affidavit filed in I.A. No.14157 of 2017 which was filed to set aside the exparte order passed earlier in the petition to reject the plaint, submitted that preliminary decree passed in earlier suit in O.S No.6037of 1976 was referred to in the counter affidavit.
6. It is seen from the records that I.A. No.14157 of 2017 filed to set aside the earlier exparte order passed in the petition to reject the plaint was allowed and petition to reject the plaint was taken up for re-consideration. The 4/7 https://www.mhc.tn.gov.in/judis C.R.P.No.940 of 2019 petitioner has not filed any additional affidavit raising the points which he raised in the counter in I.A. No.14157of 2017. Therefore, the fact remains that the petitioner failed to raise the points raised by the petitioner during the arguments by filing any affidavit in support of the petition to reject the plaint. Even otherwise whether the suit property in the present suit for partition is part of the subject matter of the earlier suit for partition, whether all the parties in the present suit were made as parties in the earlier suit etc., can be decided only by referring to the plaint in earlier suit namely O.S. No.6037 of 1976. It is settled law that while considering the application for rejection of plaint, the Court is guided by the averments found in the plaint and it cannot refer to the documents relied on by the defendant seeking rejection of plaint. In such circumstances, I do not find any error of law in the order passed by the Trial Court.
7. However, it is open to the petitioner to file additional written statement raising all points raised by him in revision. Taking into consideration the Suit is of the year 2014, the Trial Court is directed to dispose of the Suit as expeditiously as possible.
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8. With this direction, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
01.03.2024
Index : Yes / No
Speaking order : Yes / No
Neutral Citation : Yes / No
mjs
To
The I Assistant Judge,
City Civil Court,
Chennai District.
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C.R.P.No.940 of 2019
S.SOUNTHAR, J.
mjs
C.R.P.No.940 of 2019
01.03.2024
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