N. Muniyappan vs P. Balasubramaniam, Sivakumar and Shanthi

G. Rajasuria, J.—Animadverting upon the order dated 21.12.2006 passed by the learned Subordinate Court, Sankari, in I.A. No. 381 of

2006 in O.S. No. 33 of 2006, this civil revision petition is focussed.

Heard both sides.

An epitome and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would

run thus:

The revision petitioner herein filed the suit O.S. No. 103 of 2006 in District Munsif Court, Salem for enforcement of the agreement to sell as

against Balasubramaniam. While so, the fact remains that the said Balasubramaniam the defendant in O.S. No. 103 of 2006 filed the suit O.S. No.

33 of 2006 as against his son Sivakumar and his daughter Shanthi in Sub Court, Sankagiri seeking the following reliefs:

a) the partition deed dated 27.2.2006 entered into between the plaintiff and the defendants is void, inoperative and does not divest the absolute

title of the plaintiff in the suit properties;

b) restraining the defendants, their men agents and assigns by means of permanent injunction from trespassing into the suit properties and causing

interference to plaintiff''s peaceful possession and enjoyment of the same;

c) restraining the defendants, their agents and assigns by means of a permanent injunction from alienating, encumbering to carry on mutation

proceedings in respect of the suit properties till the disposal of the suit;

d) directing the defendants to pay the plaintiff''s costs of the suit.

The revision petitioner herein who happened to be the plaintiff in O.S. No. 103 of 2006 on coming to know of the suit O.S. No. 33 of 2006

approached the Sub Court, Sankagiri filed I.A. No. 381 of 2006 under Order 1 Rule 10 of CPC for getting himself impleaded as one of the

defendants so as to see that his right accrued under the agreement to sell was not defeated. However, the Court dismissed the I.A. Being

aggrieved by and dissatisfied with such dismissal, the petitioner has filed this revision on various grounds.

The learned Counsel for the revision petitioner would develop his argument to the effect that the defendant in O.S. No. 103 of 2006 purely for

the purpose of bamboozling and side tracking the revision petitioner herein has chosen to file O.S. No. 33 of 2006 in collusion with his son and

daughter and hence the presence of the revision petitioner in the suit O.S. No. 33 of 2006 as one of the defendants is a must.

Whereas the learned Counsel for Balasubramaniam/ plaintiff in O.S. No. 33 of 2006 would develop his argument to the effect that the revision

petitioner herein by no stretch of imagination could be taken to be a necessary party in the suit filed by Balasubramaniam as against his son and

daughter as it was a purely family matter and if at all the petitioner is having a case of his own, he has to prosecute the suit O.S. No. 103 of 2006.

In this factual matrix, it is glaringly and pellucidly clear that if two Courts namely the Sub Court and the District Court pronounce two different

judgments quite antithetical to each other, naturally it would lead to disastrous consequences and the parties would be left in the lurch and they will

not be able to work out their remedy in the near future. Hence I am of the opinion that both suits should be tried by one and the same Judge in one

Court and joint trial of both the suits should be conducted and a common judgment shall be pronounced. Since O.S. No. 103 of 2006 is pending

before the higher forum, namely District Court, Salem, the O.S. No. 33 of 2006 which is pending in Sub Court, Sankagiri should be transferred to

the District Court, Salem with immediate effect on receipt of a copy of the order from this Court, whereupon the District Judge, Salem shall

conduct joint trial in the O.S. No. 33 of 2006 and O.S. No. 103 2006 and pronounce common judgment as expeditiously as possible.

Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.

This matter came up today (23.01.2009) under the caption ''For Being Mentioned.''

The learned Counsel for the respondents would highlight the fact that this Court while disposing of this revision on 19.01.2009 mandated that

the suits, namely O.S.Nos.33 and 103 of 2006 shall be tried together by the District Court, Salem, whereas O.S. No. 103 of 2006 on the file of

the District Court, Salem was dismissed for default and it has not been restored yet and in such a case, there would be no possibility for the District

Court, Salem trying the suit pending in O.S. No. 33 of 2006 in Sub Court, Shankagiri along with the O.S. No. 103 of 2006 which was dismissed

for default.

In view of the peculiar situation which emerged in this matter, I would like to highlight that the Sub Court, Shankagiri shall proceed with O.S.

No. 33 of 2006.