IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 6.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.2266 of 2009 1. N.Ravichandran 2. Selvan R.Rakesh (Minor) 3. Selvi R.Pavithra (Minor) Minors 2 & 3 are represented by their father N.Ravichandran 1/13, Sengunthar Street Shenoy Nagar, Chennai 30 ... Petitioners vs. M.Natarajan ... Respondent Civil Revision Petition filed against the order, made in I.A.No.21534 of 2008, in O.S.No.4657 of 2007, dated 11.6.2009, on the file of the II Assistant Judge, City Civil Court, Chennai. For petitioners: Mr.S.Arunkumar For Respondent : Mr.V.Rajendran O R D E R
This Civil Revision Petition has been filed against the order, dated 11.6.2009, made in I.A.No.21534 of 2008, in O.S.No.4657 of 2007, on the file of the II Assistant City Civil Court, Chennai.
2. The petitioners herein are the defendants in the suit, in O.S.No.4657 of 2007. The respondent had filed the said suit, on the file of the II Assistant City Civil Court, Chennai, praying for a decree to declare the settlement, dated 22.11.2002, in favour of the defendants, as void ab-initio, and for mesne profit arising out of the suit property shown in the schedule ‘B’ of the plaint, for a consequential permanent injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the said property by the plaintiff and for ejectment of the defendants from the two portions of the said property.
3. The petitioners had filed an interlocutory application in the said suit, in I.A.No.21534 of 2008, to stay all further proceedings, in O.S.No.4657 of 2007, on the file of the II Assistant City Civil Court, Chennai, till the disposal of the probate proceedings initiated before the High Court of Judicature at Madras.
4. The trial Court, by its order, dated 11.6.2009, had dismissed the said application stating that the prayer of the petitioner cannot be granted, based on the fact that the probate proceedings are pending before the High Court. The trial Court had also stated that the petitioner could have obtained stay of the proceedings in the suit, in O.S.No.4657 of 2007, before the II Assistant City Civil Court, Chennai, by moving the High Court, by way of an appropriate proceedings, in the probate proceedings pending before it.
5. The learned counsel appearing on behalf of the petitioners had stated that the trial Court had failed to note that the application had been filed not only under Section 10, but also under Sections 94(e) and 151 of the Civil Procedure Code, 1908. While so, an order of stay ought to have been granted, as prayed for by the petitioners, in I.A.No.21534 of 2008. The learned Judge of the Court below ought to have noted that the necessity to move the High Court on its testamentary jurisdiction arose only after the respondent had made an unlawful claim in the suit.
6. The learned counsel appearing on behalf of the petitioners had further stated that the learned Judge of the Court below ought to have taken note of the fact that the entire defence of the petitioners is based on the Will, dated 25.1.1991 and that the respondent has filed the suit, in O.S.No.4657 of 2007, only with the mala fide intention of snatching away the suit property from the petitioners, illegally.
7. The learned counsel for the petitioners had also submitted that the interlocutory application had been filed by the petitioners for the bona fide reason of avoiding multiplicity of proceedings.
8. The learned counsel appearing for the petitioners had relied on the decisions, in M.SOMASUNDARAM & ANOTHER Vs. V.SRINIVASAN & ANOTHER (2009-4-L.W.785) and in ABBAS BHAI AND 2 OTHERS Vs. T.DEIVAYANI AMMAL AND 2 TWO OTHERS (1986 T.L.N.J. 299) in support of his contentions.
9. Per contra, the learned counsel appearing on behalf of the respondent had submitted that the suit, in O.S.No.4657 of 2007, had been filed before the filing of the original petition before the High Court, relating to the Will, dated 25.1.1991, and therefore, the suit pending on the file of the II Assistant City Civil Court, Chennai, should have been stayed by invoking the powers vested in the trial Court, under Section 94(e) of the Civil Procedure Code, 1908. Even though the trial Court had admitted the fact that there are sufficient circumstances to stay the proceedings, such an order had been refused by the trial Court.
10. The learned counsel appearing for the respondent had relied on the decisions in VEE CEE YES GRANITES CHENNAI Vs. CENTRAL BANK OF INDIA (2000 (II) CTC 664), NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES Vs. C.PARAMESHWARA (2005) 2 SCC 256) and R.SUBRAMANIAN Vs. ARULMIGHU DHANDAYUTHAPANI SWAMY THIRUKKOIL ((2008) 1 MLJ 300) to state that only a Court, in which a subsequent suit is filed, is prohibited from proceeding with the suit, if the matters in issue in the earlier suit and in the subsequent suit are identical or if directly and substantially in issue in both the suits, as per Section 10 of the Civil Procedure Code, 1908.
11. The learned counsel appearing for the respondent had also relied on the decision, in CHANDRA MADHAV MISHRA Vs. BRAJ KISHORE MISHRA (AIR 2006 PATNA 164) to say that an application for stay of the suit, which had been filed earlier in time, cannot be entertained, under Section 10 of the Civil Procedure Code, 1908. In probate proceedings, the only thing the Court does is to declare upon the validity of execution of the Will, in respect of the properties mentioned therein. The jurisdiction of the Court in the two proceedings are different and exclusive. Therefore, he had submitted that, only if both the proceedings are relating to two different suits, the stay of proceedings in one suit could be asked for. However, in the present case, the probate proceedings before the High Court and the civil proceedings before the II Assistant City Civil Court, Chennai, are different in nature. Hence, the prayer for stay of the proceedings in the suit, in O.S.No.4657 of 2007, prayed for by the petitioner cannot be granted.
12. In view of the averments made on behalf of the petitioners, as well as the respondent, and in view of the submissions made on their behalf and in view of the decisions cited above, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to grant the reliefs, as prayed for in the present Civil Revision Petition.
13. The trial Court had rightly stated, while dismissing the interlocutory application, that the proceedings in the suit, in O.S.No.4657 of 2007, cannot be stayed, as prayed for by the petitioner, in I.A.No.21534 of 2008, since, the suit had been filed prior to the filing of the probate proceedings before the High Court of judicature at Madras. However, it may be open to the petitioners to agitate the matter, at the appropriate time, before the appropriate forum, in the manner known to law, based on the result of the probate proceedings said to be pending before the High Court of judicature at Madras, as the decisions of the High Court, in the probate proceedings may have a material effect on the rights of the parties concerned. As such, the Civil Revision Petition is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2009 is closed.
lan
To:
The II Assistant Judge,
City Civil Court,
Chennai