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R. Palaniappan & Another v/s M/s. Sri Surya Construction, Rep. by its Partner, R. Uma, wife of Ravi, Chennai & Others

    O.S.A. No. 132 of 2022

    Decided On, 28 October 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE PARESH UPADHYAY & THE HONOURABLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

    For the Appellants: G. Anbumani, Advocate. For the Respondents: R1, S. Thiruvengadam, R2, R4 to R7, S. Nagarajan, Advocates, R8, B. Tamil Nidhi, Additional Government Pleader



Judgment Text

(Prayer: Appeal filed under Order 36 Rule 1 of the Original Side Rules read with Clause 15 of Letters Patent against the order dated 05.01.2022 made in C.S.No.175 of 2013.)

D. Bharatha Chakravarthy, J.

1. The first respondent in this original side appeal namely, Sri Surya Construction had filed C.S.No.175 of 2013 for specific performance of a sale agreement against the second respondent in this appeal namely S.Jagadeeswari. The said suit remained undefended. Ex-parte evidence was recorded and the matter was taken up for arguments for passing ex-parte decree before learned Single Judge on 05.01.2022.

2. During the course of arguments before the Learned Single Judge, learned counsel appearing for the plaintiff had submitted that one more civil suit filed by the defendant in C.S.No.175 of 2013, that is, the second respondent in this original side appeal, namely, S.Jagadeeswari, in O.S.No.10885 of 2009 is pending on the file of XII Assistant City Civil Court at Chennai. It was represented that the said suit also is relevant to the subject matter and therefore, the learned Single Judge directed that the said suit be transferred to the file of this Court and to be taken up along with C.S.No.175 of 2013.

3. A perusal of the said plaint in O.S.No.10885 of 2009 reveals that, the said Jagadeeswari, the second respondent in this original side appeal along with her husband had filed the said suit against the appellants in this original side appeal for declaration that the sale deed executed in their favour in respect of the suit property is null and void. It is represented that the said suit is in the stage of arguments. The present suit, namely, C.S.No.175 of 2013 is on the Undefended Board. It is further represented that an application to set aside the ex-parte order is also filed and is pending.

4. After hearing learned counsel for the parties, after considering the above, in our considered opinion unless the said Jagadeeswari contests the said suit in O.S.No.10885 of 2009, the plaintiff in C.S.No.175 of 2013 namely M/s Sri Surya Construction can do nothing at present in the matter as it is not a party to that suit. No useful purpose will be served by clubbing the said suit with the present suit pending on the file of this Court. This apart, we find that merely on the mentioning of the learned counsel for the plaintiff in C.S.No.175 of 2013, without affording any hearing to the other parties to the suit, the suit has been suo motu transferred and therefore, the same is also not sustainable. We find that C.S.No.175 of 2013 was originally left ex-parte by the sole defendant and now is in the very nascent stage of setting aside ex-parte order, while the trial is complete in O.S.No.10885 of 2009 and is in the stage of arguments. Therefore, in any view of the matter, the order of the learned Single Judge is not sustainable and deserves to be set aside.

5. It is also brought to our notice that pursuant to the order of the learned Single Judge, the said suit in O.S.No.10885 of 2009 on the file of XII Assistant City Civil Court at Chennai, is brought to the file of this Court and is already re-numbered as C.S.No.16 of 2022. Therefore, the said C.S.No.16 of 2022 has to be again sent back to the XII Assistant City Civil Court at Chennai from where the matter can be continued from the stage on which the suit was originally posted, before the order of transfer.

6. In the result, the following order is passed:-

(i) O.S.A.No.132 of 2022 stands allo

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wed. (ii) The order of learned Single Judge dated 05.01.2022 in C.S.No.175 of 2013 shall stand set aside; (iii) C.S.No.16 of 2022 shall be sent back to the XII Assistant City Civil Court at Chennai and shall be continued and taken up for hearing proceeded further from the stage in which it stood; (iv) No costs. (v) C.M.P.No.8248 of 2022 is closed.
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