Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:
5. 10.2009 Coram The Honourable Mr. Justice R.SUDHAKAR Civil Revision Petition (PD)No.2478 of 2009 D.Gokulnath alias Ajith. ... Revision Petitioner/ Petitioner/Plaintiff vs. 1.Mohanchandar, 2.J.Vidhya, 3.V.Sangeetha. ... Respondents/Respondents/ Defendants Civil Revision Petition is filed under Article 227 of the Constitution of India praying to direct the First Additional District Court, Coimbatore to dispose off I.A.No.176 of 2009 in O.S.No.678 of 2007 at the earliest. For Petitioner : Ms.P.T.Asha for M/s.Sarvabhauman Associates For respondents : Mr.M.Sriram for R1 : No appearance for R2 and R3 ----- ORDER
The Civil Revision Petition is filed by the plaintiff praying to direct the First Additional District Court, Coimbatore to dispose off I.A.No.176 of 2009 in O.S.No.678 of 2007 at the earliest.
2. The suit O.S.No.678 of 2007 has been filed for partition and delivery of separate possession. The I.A.No.176 of 2009 has been filed by the plaintiff under Order 18 Rule 3-A C.P.C., praying to permit him to examine one Tmt.Ranganayaki Ammal as P.W.1 and also permit him to appear his own witness at a latter stage. It is stated that the I.A.No.176 of 2009 is pending for enquiry.
3. The main reason stated for early disposal of the said I.A.No.176 of 2009 is that Mrs.Ranganayaki Ammal is aged about 94 years and her evidence is relevant for the proper adjudication of the suit. Since the matter is delayed for quite sometime, considering the age of the said person, the revision petition has been filed for early disposal of the I.A.No.176 of 2009.
4. Respondents were served. First respondent appears through counsel. No appearance for respondents 2 and 3.
5. Mr.M.Sriram, learned counsel appearing for the first respondent has no objection to examine the said Ranganayaki Ammal as P.W.1 in O.S.No.678 of 2007 at the first instance. He states that the suit O.S.No.678 of 2007 has been transferred to the Additional District Judge, Fast Track Court No.II, Coimbatore. In the certified copy of petition I.A.No.176 of 2009 filed before this court, an endorsement is found to that effect. Mr.M.Sriram, learned counsel for the first respondent further states that there is a connected suit O.S.No.730 of 2008 pending on the file of the Additional District Judge, Coimbatore in respect of the very same property and the evidence of Ranganayaki Ammal as D.W.1 is required in that case. Therefore, he has no serious objection for recording her evidence in chief and cross examination in both the matters. He further submits that he has filed Transfer O.P.No.147 of 2009 before the Principal District Judge, Coimbatore seeking to withdraw the suit O.S.No.730 of 2008 from the file of Additional District Judge, Coimbatore and to transfer the same to the Additional District Judge, Fast Track Court No.II, Coimbatore to try along with the suit O.S.No.678 of 2007. A copy of the petition in the said transfer O.P.No.147 of 2009 filed before the Principal District Judge, Coimbatore is placed before this court and is not disputed by the other side.
6. The learned counsel for the revision petitioner states that she has no objection to withdraw the suit O.S.No.730 of 2008 from the file of the Additional District Judge, Coimbatore and transfer the same to the Additional District Judge, Fast Track Court No.II, Coimbatore to try along with O.S.No.678 of 2007.
7. Learned counsel for the first respondent has filed a memo enclosing a copy of memo filed by the learned counsel for the respondent in Tr.O.P.No.147 of 2009, who is the plaintiff in O.S.No.730 of 2008. The memo reads as follows:- "This Respondent has no objection in allowing the above Tr.O.P.No.147/2009 and the suit filed by this Respondent in OS.No.730/2008 pending on the file of the Hon'ble Additional District Judge of Coimbatore, may be transferred to try along with the suit in O.S.No.678/2007 pending on the file of the Hon'ble Fast Track Judge No.II, Coimbatore. Hence it is prayed that this Hon'ble Court may be pleased to record this memo and pass suitable orders and render justice."
8. The contesting parties are family members and the suit O.S.No.678 of 2007 is filed for partition and separate possession. The suit O.S.No.730 of 2008 is filed for specific performance in respect of the very same property. Hence, there can be no impediment in taking both the suits together to be disposed off by one court. Accordingly, by consent of all parties, the suit O.S.No.730 of 2008 now pending before the Additional District Judge, Coimbatore is withdrawn and transferred to the Additional District Judge, Fast Track Court No.II, Coimbatore to be tried along with the suit O.S.No.678 of 2007.
9. As far as the plea of the revision petitioner/plaintiff in O.S.No.678 of 2007, that the evidence of Tmt.Ranganayaki Ammal should be recorded at the first instance is concerned, the learned counsel for the first respondent has no serious objection, so long as the evidence is recorded in both the cases. Therefore, the trial court, at the first instance shall record the evidence of Tmt.Ranganayaki Ammal in both the suits and cross examine as required thereof.
10. In view of the above, the Civil Revision Petition is ordered as follows:- (i) By consent of all parties, the suit O.S.No.730 of 2008 now pending before the Additional District Judge, Coimbatore is withdrawn and transferred the same to the Additional District Judge, Fast Track Court No.II, Coimbatore to try along with the suit O.S.No.678 of 2007. (ii) The Additional District Judge, Coimbatore is directed to send the records in O.S.No.730 of 2008 to the Additional District Judge, Fast Tack Court No.II, Coimbatore immediately. (iii) On receipt of records in O.S.No.730 of 2008, the Additional District Judge, Fast Track Court No.II, Coimbatore, shall permit the revision petitioner to examine Tmt.Ranganayaki Ammal as P.W.1 in O.S.No.678 of 2007 and as D.W.1 in O.S.No.730 of 2008 at the first instance and in accordance with law as expeditiously as possible preferably on or before 30th of October, 2009. (iv) There shall be no order as to costs. 5.10.2009 Index: No Internet: Yes Office to note:- Send copy of this order to the concerned courts immediately. ts To 1.The Principal District Judge, Coimbatore. 2.The First additional District Judge, Coimbatore. 3.The Additional District Judge, Fast Track Court No.II, Coimbatore. R.SUDHAKAR,J.
ts Order in C.R.P.(PD)No.2478 of 2009 5.10.2009