S. Velu v. Ramesh Babu

ORDER The petitioner, who is the defendant in O.S.No.376 of 2015, on the file of the Additional District Munsif Court No.1, Tirunelveli, is aggrieved by the fair and decretal order, dated 20.01.2023, passed by the learned Principal District Judge, Tirunelveli, in Transfer Original Petition No.272 of 2022. By the impugned order, the learned Principal District Judge, Tirunelveli, dismissed the said Transfer Original Petition filed by the petitioner, seeking to transfer O.S.No.376 of 2015, on the file of the 1st Additional District Munsif Court, Tirunelveli to some other competent Court, for further proceedings. The relevant portion of the impugned order reads as under:- ''8. After taking into consideration on both side learned counsels arguments and on perusal of records it found that the petitioner has filed this petition on two grounds:- The first reason is that the Hon'ble High court has given liberty to the 1st respondent that to file appropriate suit in this matter; but the respondent taking undue advantage by misleading the trial court and requested that to proceed with the suit as though the liberty is given in respect of O.S.376/2015. Another reason stated by the petitioner is that he has preferred CMA No.16/2022 along with stay application against the order and the decreetal order passed in IA.1/2020 in O.S.No.376/2015 on the file of Principal Sub court, Tirunelveli and it was posted for process of service. In the meantime, the trial court has hurried to proceed the case and if it was proceeds with the trial of the suit, the object of filings CMA will be defeated. If the petition is not allowed the petitioner will cause prejudice. The above said reasons stated by the petitioner in the affidavit which supported with the petition is not sufficient to transfer OS.376/2015. However the bounden duty of the petitioner to approach the concern court and to get the stay order from the appropriate forum. Therefore, the reasons mentioned in the affidavit by the petitioner for transferring the case from one court to another court is not sufficient to accept the petition. Further on perusal of counter affidavit, it found that more than 137 hearings were given by the learned 1 Additional District Munsif court, Tirunelveli. The petitioner has not come forward to cross examine PW1. Under these circumstances, it is created doubt to the court that due to only drag on the proceedings with malafide intention the petitioner has filed this petition. The above said aspects, this court has come to the conclusion that the petitioner is not entitled any relief in this petition. Hence this petition is dismissed. During pendency of the petition, the petitioner has filed IA 2/2022 in Trop No. 272/2022 to stay all further proceedings of O.S.376 2015 on the file of 1st Additional District Munsif court, Tirunelveli till the disposal of this Trop No. 272/2022 and ad interim stay till the disposal of the petition. Since the Trop No. 272/2022 is dismissed today, this stay petition is also dismissed as infructuous. The point is answered accordingly. In the result, this transfer petition is dismissed. No costs.''

¶2The above said suit has been filed by the respondents herein against the petitioner for the following relief:- ''1.jgrpy; nrhj;Jf;fs; nghWj;J Kjyhk; thjpNa chpikahsH vd;W tpsk;Gif ghpfhuk; toq;fpAk;> mjd; njhlHr;rpahf ,e;j gpujpthjpNah mtuJ tifahl;fNsh ve;jtpj ,ilQ;rYk; nra;af; $lhJ vd epue;ju cWj;Jf; fl;lils ghpfhuk; toq;fpAk;>

2.,e;j tof;fpd; nryTj; njhifia ,e;j gpujpthjp thjpf;F toq;f cj;juT toq;fpAk;>

3.,k;khz;gika ePjpkd;wk; crpjnkdf; fUJk; ,jug; ghpfhuq;fs; toq;fpAk; xU jPHg;Gk;> jPHg;ghizAk; toq;fpl thjpfs; gpuhHj;jpj;Jf; nfhs;fpwhHfs;.''

¶3In the said suit, the petitioner filed I.A.No.1 of 2020 stating that the suit was barred on account of res judicata, as the first respondent had earlier filed O.S.No.247 of 1995, for declaration and injunction in respect of the property covered in O.S.No. 376 of 2015 and that the said suit was dismissed on 20.04.1998 and that a further appeal in A.S.No.44 of 1998 was also dismissed on 14.12.2000, against which, the first respondent preferred S.A.No.559 of 2001 before this Court and the same was also dismissed on 11.07.2019.

¶4It is submitted that I.A.No.1 of 2020 was dismissed, against which, petitioner had filed C.M.A.No.16 of 2022 before the Principal Sub Court, Tirunelveli. The learned counsel for the petitioner, today, affirms that the said C.M.A. has been dismissed after filing of Transfer Original Petition No.272 of 2022.

¶5It is submitted that though the respondents/plaintiffs have also consented for transfer of O.S.No.376 of 2015, the learned Principal District Judge, Tirunelveli, has declined to transfer the said suit filed by the respondents herein and dismissed Transfer Original Petition No.272 of 2022.

¶6I have considered the arguments advanced by the learned counsel for the petitioner.

¶7Merely, because I.A.No.1 of 2020 was dismissed, ipso facto did not give the petitioner a right to file Transfer Original Petition No.272 of 2022. In the counter affidavit, the first respondent/first plaintiff has merely stated that even if the Court was inclined to transfer the case to another Court, the petitioner may be directed to give an undertaking to co-operate with the Court. The relevant portion of the counter affidavit filed by the first respondent/first plaintiff in Transfer Original Petition No.272 of 2022, reads as under:- ''8.kDjhuhpd; kD epr;rakhf Vw;fj;jf;fJ fpilahJ vd;gjw;F khz;gika 1tJ $Ljy; khtl;l chpikapay; ePjpkd;wj;jpy; fhyk; flj;jpa 137 tha;jhf;fNs Nghjpa Mjuhg;G+Htkhd ePjpkd;w rhl;rpahf ,Uf;Fk; epiyapy; ,e;j Tr.O.P kD js;Sgb nra;ag;gLtNj ePjpf;F VJthd xd;whFk;. vdpDk; ,k;khz;gika ePjpkd;wk; ,k;kDit mDkjpf;f tpUk;Gk;gl;rj;jpy; vjpHkDjhuH Nkw;gb m.t.vz;375/2015-I KbTf;F nfhz;L tu xU ePjpkd;wk; rhpnad fUJk; xU fhy msit epHzapj;Jk;> mjw;F VJthf kDjhuhplk; chpa cj;jputhj gpukhz thf;F%yk; xd;iw jhf;fy; nra;a cj;jputpl;Lk; NkYk; m.t.vz;375/2015 tpah[;[pakhdJ tpiutpy; epiwT ngw khtl;l ePjpkd;wk; cfe;jJ vd fUJk; ,ju cj;jpuTfisAk; gpwg;gpf;f Ntz;Lnkd 1tJ vjpHkDjhuH tzf;fkha; gpuhu;j;jpj;Jf; nfhs;fpwhH.''

¶8In my view, the Transfer Original Petition filed by the petitioner was misadventure and the learned Principal District Judge, Tirunelveli, has rightly dismissed the same, vide the impugned order dated 20.01.2023. Therefore, the impugned order does not call for any interference by this Court. Hence, this Civil Revision Petition is liable to be dismissed. It is accordingly dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes/No

10.04.2023 Index : Yes/No Internet : Yes/No To The Principal District Judge, Tirunelveli.

C.SARAVANAN, J. smn2

10.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.04.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)No.4048 of 2023 S.Velu .. Petitioner Versus 1.Ramesh Babu, S/o.Anandan 2.Arulappan, S/o.Matha 3.Arockiam, S/o.Matha 4.Inbaraj, S/o.Matha 5.Chelladurai, S/o.Matha 6.Koil, S/o.Antony 7.John Peter, S/o.Antony 8.Arockiam, S/o.Antony .. Respondents Prayer :- Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 20.01.2023, passed in Transfer Original Petition No.272 of 2022, by the learned Principal District Judge, Tirunelveli. For Petitioner : Mr.K.Suresh Subramanian