Madras High Court
Kavitha vs K.Sundararaj on 17 December, 2014
Author: M.Duraiswamy
Bench: M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:17.12.2014 CORAM THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(MD)No.1967 of 2012 & C.R.P.(MD).No.406 of 2014 & M.P.(MD).No.1 of 2012 & M.P.(MD).No.1 of 2014 Kavitha ..Petitioner in both the petitions -vs- K.Sundararaj ..Respondent in both the petitions PRAYER: Civil Revision Petitions filed under Article 227 of the Constitution of India to set aside the fair and decreetal orders passed in I.A.No.26 of 2012 in O.S.No.6 of 2007, dated 10.07.2012 on the file of Sub Judge, Pattukkottai and to struck off the plaint in O.S.No.6 of 2007 on the file of Sub Judge, Pattukkottai respectively. !For Petitioner :Mr.V.Bharathidasan ^For Respondent :Mr.N.Dilip Kumar :COMMON ORDER
C.R.P.(MD).No.1967 of 2012 arises against the fair and decreetal order passed in I.A.No.26 of 2012 in O.S.No.6 of 2007 on the file of Sub Judge, Pattukottai. The defendant has filed the above civil revision petition.
2. C.R.P.(MD).No.406 of 2014 has been filed by the defendant to struck off the plaint in O.S.No.6 of 2007 on the file of Sub Judge, Pattukottai.
3. The plaintiff filed the suit in O.S.No.6 of 2007 to declare that the defendant is not the adoptive daughter and not entitled to claim under the alleged unregistered Will dated 25.01.1998 and for permanent injunction. The defendant has contended that the negative prayer sought for in the suit is not maintainable and on that ground alone the suit has to be struck off.
4. It is brought to the notice of this Court that the defendant has filed her written statement and the Trial Court had taken up the suit for trial and the trial is in progress. That being the case, striking off the suit at this stage may not be justifiable, more so when the parties are facing the trial before the Trial Court.
5. In these circumstances, I am of the view that the defendant can contest the suit before the Trial Court and the Trial Court can also take into consideration the defence taken by the defendant in the written statement and also the issue with regard to Order 2 Rule 2 CPC and plea of limitation raised by the defendant.
6. So far as the application in I.A.No.26 of 2012 is concerned the defendant filed the said application under Order 14 Rule 2(2) CPC to try the two issues as preliminary issues. The Trial Court framed 7 issues prior to the commencement of the Trial. Out of these 7 issues, the defendant wanted to try issues 1 and 4 as preliminary issues. The said application was highly contested by the plaintiff.
7. The Trial Court dismissed the said application holding that when the application was filed before the Trial Court, the trial had already commenced and the matter was posted for the cross-examination of PW1. That apart, the Trial Court also found that the said application was filed after four years from the date of filing of the suit. Since the Trial of the suit had already commenced and the same is in progress, I do not find any error or irregularity in the order passed by the Trial Court. The Trial Court has already framed the issues and the Trial of the suit is in progress.
8. In these circumstances, the civil revision petitions are devoid of merits and the same are dismissed. As already stated, the Trial Court shall decide the issues with regard to Order 2 Rule 2(2) CPC and the plea of limitation at the time of deciding the suit.
9. In the result, the civil revision petitions are dismissed with the above observations. There shall be no order as to costs. M.DURAISWAMY jikr Consequently, connected miscellaneous petitions are also dismissed. Since the suit is of the year 2007, I direct the Sub Court, Pattukottai, to dispose of the suit on merits and in accordance with law, within a period of 4 months from the date of receipt of a copy of this order.
17.12.2014 Index : Yes/No Internet :Yes/No jikr To The Sub Court, Pattukottai.
C.R.P.(MD)No.1967 of 2012 & C.R.P.(MD).No.406 of 2014 & M.P.(MD).No.1 of 2012 & M.P.(MD).No.1 of 2014