Kasivisvanathan and another Vs Selvam and others .1. Tr.O.P.

28/2022

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE, SIVAGANGAI

Present : THIRU.R.GURUMURTHY, B.Sc., B.L.,
PRINCIPAL DISTRICT JUDGE, SIVAGANGAI.
Thursday, the 21st day of December 2023
Transfer Original Petition.28/2022
(CNR No.TNSV01002454/2022)
1. Kasiviswanathan
2. Kandhasamy
3. Ponnuthai ... Petitioners

-Vs-
1. Selvam
2. Soundararajan
3. Bharathikumar
4. Kanagavalli
5. Aathi Eswaran
6. The Sub Registrar, Thirumangalam
7. The Sub Registrar, Thiruppuvanam
8. The District Collector, Madurai.
9. The District Collector, Sivagangai
… Respondents

This petition coming before this Court on 12.12.2023 for final hearing in

the presence of Thiru.K.Alagappan, Advocate for the Petitioners and

Thiru.MGurudas, Advocate for the 1st Respondent and R2 to R9 were called absent

set exparte and upon hearing the arguments on both side and upon perusing the other

material records, and having stood over for consideration till this day, this court

passed the following …

ORDER

This petition has been filed by the petitioners under Section 24 of CPC., to

transfer the suit in O.S.No.240/2019 on the file of District Munsif Court cum Judicial

Magistrate, Thiruppuvanam to Sub Court, Manamadurai for joint trial along with the
Digitally signed
by R
R GURUMURTHY
GURUMURTHY
Date: 2023.12.21
19:39:15 +0530
Kasivisvanathan and another Vs Selvam and others .2. Tr.O.P.28/2022

suit in O.S.No.1/2020 on the file of Sub Court, Manamadurai.

2) The averments made in the petition in brief are as follows:-

The respondents 1 and 2 filed a suit for partition in respect of two items of

the suit properties before Sub Court, Sivagangai in O.S.No.25/2015 against the

petitioners 1 and 3 and respondents 4 and 5 and the same was transferred to Sub

Court, Manamadurai and pending in O.S.No.1/2020. Subsequently, the 1 st respondent

has also filed another suit against the petitioners and other respondents for declaration

that sale deed executed by the 1st petitioner through his power agent the 2nd petitioner

herein in favour of 3rd respondent at Sub Registrar, Thirumangalam as null and void

and also for permanent injunction in respect of 2 nd item of the suit property in

O.S.No.1/2020 and the same is pending before District Munsif cum Judicial

Magistrate, Thiruppuvanam in O.S.No.240/2019. Since litigating parties and subject

matter in both the suits are one and the same, if both suits are tried by different courts

there is possibility of delivering conflicting decisions. The suit in O.S.No.1/2020 on

the file of Sub Court, Manamadurai is pending for cross examination of PW1. The

petition filed to implead 3rd respondent in the suit in O.S.No.1/2020 in I.A.No.4/2021

and another petition filed in I.A.No.5/2021 to recognize the 2 nd petitioner as power

agent of 3rd respondent herein were dismissed and revisions have been filed against

the said orders and pending. The suit in O.S.No.240/2019 pending on the file of

District Musif cum Judicial Magistrate, Thiruppuvanam is posted in the list for trial

on 06.06.2022. If the suits are tried by different courts, the parties to the suits will be

subjected to great hardship in attending both courts. Therefore, the petitioners have
Digitally signed
by R
R GURUMURTHY
GURUMURTHY Date:
2023.12.21
19:39:23 +0530
Kasivisvanathan and another Vs Selvam and others .3. Tr.O.P.28/2022

come forward with this petition to transfer the suit in O.S.No.240/2019 on the file of

District Munsif cum Judicial Magistrate, Thiruppuvanam to Sub Court, Manamadurai

for joint trial along with the suit in O.S.No.1/2020 on the file of Sub Court,

Manamadurai. If this petition is not allowed, the petitioners will be put to great loss

and hardship.

3) The averments made in the counter filed by the 1 st respondent in brief are as

follows:-

This petition is not maintainable in law or on facts and the same is liable to

be dismissed. The suit in O.S.No.1/2020 Sub Court, Manamadurai was filed for

partition and the suit in O.S.No.240/2019 on the file of District Munsif cum Judicial

Magistrate, Thiruppuvanam was filed for declaration and permanent injunction. The

reliefs sought for in both suits are totally different from each other. The cause of

action in both the suits are also different from each other. The 3 rd respondent herein

filed a petition in I.A.No.4/2021 and I.A.No.5/2021 to implead himself as a defendant

in O.S.No.1/2020 on the file of Sub Court, Manamadurai was dismissed as he was

neither necessary nor proper party and the same was confirmed by the Hon’le

Madurai Bench of Madras High Court in CRP(MD)No.1498/2022 on 28.07.2022. If

the suit in O.S.No.240/2019 on the file District Munsif cum Judicial Magistrate,

Thiruppuvanam is transferred for joint trial or simultaneous trial the same would

hamper the smooth trial and embarrass the parties to the suit and also cause

unnecessary delay in completion of trial. This petition is filed only to stop and

prolong the pending cases. Both cases are ripped for trial and both cases are pending
Digitally signed
by R
R GURUMURTHY
GURUMURTHY
Date: 2023.12.21
19:39:30 +0530
Kasivisvanathan and another Vs Selvam and others .4. Tr.O.P.28/2022

for cross examination of PW1 for long time as defendants in both the suits were not

co-operating to proceed with the trial in both suits. This petition is total abuse and

misusing the process of law and it is nothing but a delaying petition to prolong the

trial of cases. The petitioners were set exparte in O.S.No.240/2019 on 28.09.2021

itself and they have filed exparte set aside petition only on 26.07.2022 after fling this

Tr.O.P on 01.06.2022. Hence, the petitioners who were set exparte in

O.S.No.240/2019 have no right to file this Tr.O.P. Therefore, it is prayed that this

petition may be dismissed.

4) The point for consideration in this petition is :-

Whether this petition has to be allowed or not?

5) During enquiry Ex.P1 and Ex.P2 were marked on the side of petitioners

and Ex.R1 marked on the side of 1st respondent.

6) Answer to the point :-

The petitioners who are the defendants 1, 3 and 5 in O.S.No.240/2019 on

the file of District Munsif cum Judicial Magistrate, Thiruppuvanam has filed this

petition to transfer the said suit from District Munsif cum Judicial Magistrate,

Thiruppuvanam to Sub Court, Manamadurai for joint trial along with suit in

O.S.No.No.1/2020 on the file of Sub Court, Manamadurai.

7) It is the contention of the petitioners that the respondents 1 and 2 have

filed a suit for partition and permanent injunction in respect of two items of the suit

properties against the petitioners 1 and 3 and respondents 4 and 5 and the same is

pending before Sub Court, Manamadurai and thereafter the 1 st respondent filed
Digitally signed
by R
R GURUMURTHY
GURUMURTHY
Date: 2023.12.21
19:39:38 +0530
Kasivisvanathan and another Vs Selvam and others .5. Tr.O.P.28/2022

another suit in O.S.No.240/2019 before District Munsif cum Judicial Magistrate,

Thiruppuvanam for declaration to declare that sale deed executed by 1 st petitioner

through his power agent the 2nd petitioner herein to 3rd respondent Bharathikumar is

null and void and also for permanent injunction in respect of the 2 nd items of the suit

properties in O.S.No.1/2020 and that in both the suits, trial was commenced and

pending for cross examination of PW1 and that the litigating parties in both suits and

the subject matter in both suits are one and the same and if both suits are tried by two

different courts, there is a possibility of delivering conflicting decisions and therefore

the petitioners have come forward with this petition to transfer the suit in

O.S.No.240/2019 on the file of District Munif cum Judicial Magistrate,

Thiruppuvanam to Sub Court, Manamadurai for joint trial or simultaneous trial along

with the suit in O.S.No.1/2020 pending on the file of Sub Court, Manamadurai and if

the both suits are tried by different courts, the parties in both suits will be put to great

loss interms of time and money.

8) It is the rival contention of the 1st respondent that the cause of action and

reliefs sought for in both the suits are totally different and that the petition filed by

the 2nd petitioner and the 3rd respondent herein to implead themselves as parties in

O.S.No.1/2020 were dismissed and the said orders were also confirmed in revision by

the Hon’ble Madurai Bench of Madras High Court and that the petitioners were set

exparte in O.S.No.240/2019 on 28.09.2021 and they have filed exparte set aside

petition only after filing this transfer original petition on 26.07.2022 and that the

petitioners who were set exparte in O.S.No.240/2019 on the date of filing this petition
Digitally signed
by R
R GURUMURTHY
GURUMURTHY
Date: 2023.12.21
19:39:45 +0530
Kasivisvanathan and another Vs Selvam and others .6. Tr.O.P.28/2022

had no right to file this petition and that the petitioners have come forward with this

petition only to drag on the suits and to delay the completion of trial and therefore it

is submitted that this petition is liable to be dismissed.

9) Admittedly, the respondents 1 and 2 have filed a suit in O.S.No.1/2020

for partition and permanent injunction in respect of two items of the suit properties

against the petitioners 1 and 3 and respondents 4 and 5. During the pendency of the

said suit the 1st respondent has also filed another suit in O.S.No.240/2019 before

District Munsif cum Judicial Magistrate, Thiruppuvanam for declaration to declare

that sale deed executed by the 1st petitioner through his power agent 2nd petitioner to

the 3rd respondent as null and void and also for permanent injunction and that trial

was commenced in both suits and both the suits were pending for cross examination

of PW1. The suit properties in O.S.No.240/2019 is the 2 nd item of the suit properties

in O.S.No.1/2020 on the file of Sub Court, Manamadurai. It is seen that the litigating

parties in both the suits are one and the same and subject matter involved in both the

suits are one and the same. Merely because the petition filed by the 3 rd respondent to

implead himself as party in O.S.No.1/2020 and the petition to recognize the 2 nd

petitiner as power agent of 3rd respondent were dismissed and confirmed by the

Hon’ble Madurai Bench of Madras High Court, it cannot be said that both the suits

cannot be tried jointly or simultaneously. This court is also of the view that the

petitioners were set exparte in O.S.No.240/2019 on the file of District Munsif cum

Judicial Magistrate, Thiruppuvanam is not a bar to file this petition as they are parties

in O.S.No.240/2019. Considering the fact that the main litigating parties in both the
Digitally signed
by R
R GURUMURTHY
GURUMURTHY Date:
2023.12.21
19:39:53 +0530
Kasivisvanathan and another Vs Selvam and others .7. Tr.O.P.28/2022

suits are one and the same the subject matter of the suit in O.S.No.240/2019 is also

one of the subject matter of the suit in O.S.N.1/2020 and issues involved in both the

suits are substantially same, this court is of the view that if both the suits are tried

separately by two different courts, possibility of conflicting decisions may not be

ruled out and therefore it is just and necessary to try both the suits by same court

simultaneously.

10) For all the reasons stated above, this court is of the considered view

that both the suit in O.S.No.240/2019 on the file of District Munsif cum Judicial

Magistrate, Thiruppuvanam and the suit in O.S.No.1/2020 on the file of Sub Court,

Manamadurai have to be tried simultaneously by the same court to avoid conflicting

decisions and therefore this petition has to be necessarily allowed in the interest of

justice and thus this point is answered accordingly.

In the result, this petition is allowed and the suit in O.S.No.240/2019 on

the file of District Munsif cum Judicial Magistrate, Thiruppuvanam is hereby

withdrawn and transferred to the file of Sub Court Manamadurai for simultaneous

trial along with O.S.No.1/2020 pending on the file of the Sub Court, Manamadurai.

Dictated by me to the steno-typist, transcribed and typed by her into

computer, corrected and pronounced by me, in the open court, on this the 21 st day of

December 2023. Digitally signed

by R
R GURUMURTHY
GURUMURTHY
Date: 2023.12.21
19:40:00 +0530

Principal District Judge,

Sivagangai.
Kasivisvanathan and another Vs Selvam and others .8. Tr.O.P.28/2022

PETITIONERS AND RESPONDENTS SIDE

WITNESS : Nil.

PETITIONERS SIDE DOCUMENTS:-

1. Ex.P1 Xerox copy of Plaint in O.S.No.1/2020 on the file of Sub Court

Manamadurai.
2. Ex.P2 Xerox copy of Plaint in O.S.No.240/2019 on the file of District
Munsif cum Judicial Magistrate, Thiruppuvanam.

RESPONDENTS SIDE DOCUMENTS:-

1. Ex.R1 Xerox copy of Exparte order set aside petition and affidavit filed by
the petitioners herein in O.S.No.240/3029 on the file of the learned
District Munsif cum Judicial Magistrate, Thiruppuvanam, after filing
this Tr.O.P. on 01.06.2022 (i.e. after 1 month 26 days).
Digitally signed
by R
R GURUMURTHY
GURUMURTHY Date: 2023.12.21
19:40:12 +0530
Principal District Judge,
Sivagangai.

PRINCIPAL DISTRICT COURT,

SIVAGANGAI
Tr.O.P.No.28/2022
FAIR / DRAFT ORDER
DATE: 21.12.2023