IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 3.12.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
Tr.C.M.P.No.75 of 2008
R.Gulab Singh ... Petitioner
Vs.
1. Nachimuthu Gounder
2. Palanathal
3. Duraisamy Gounder
4. Sivachalapathy
5. Gopal
6. M.K.Raja
7. S.P.A.Sait @ Shajahan
8. Swaminathan ... Respondents
This Transfer Civil Miscellaneous petition has been filed under Sec.24 of C.P.C. to withdraw and transfer O.S.No.362 of 2006, from the file of the I Additional District Judge, Coimbatore to the file of Fast Track Court No.V, Tirupur to be tried along with O.S.No.500 of 2005.
For Petitioner : M/s.G.Ethirajulu &
Pitty Parthasarathy
For Respondents : Mr.J.Antony Jesus
for R1 to R4, R7 & R8
M/s.P.Valliappan &
G.R.M.Palaniappan for R-6
*****
O R D E R
This Transfer Civil Miscellaneous petition has been filed to transfer O.S.No.362 of 2006, from the file of the I Additional District Judge, Coimbatore to the file of Fast Track Court No.V, Tirupur to be tried along with O.S.No.500 of 2005.
2. The plaintiff in O.S.No.362 of 2006 is the petitioner before this court.
3. According to the petitioner, the respondents 1 to 4 herein are the owners of the property comprised in S.F.No.39/2, Nallur Village, Tirupur Taluk. In order to sell the property, they appointed the 5th respondent herein as their Power of Attorney through a deed dated 18.12.2001. The said Power of Attorney entered into a sale agreement dated 22.9.2003 with the petitioner herein for a sale consideration of Rs.2,07,000/- per acre and also received an advance of Rs.10,001/-. The Power of Attorney thereafter received another sum of Rs.40,000/-. When the petitioner has been ready and willing to pay the balance sale consideration, the said Power of attorney refused to execute the sale deed and therefore, the petitioner filed a suit for specific performance in O.S.No.362 of 2006 on the file of the District Judge, Coimbatore against the respondents 1 to 5 herein.
4. Now, the petitioner came to know that the very same Power of Attorney, i.e., the 5th respondent herein after receiving the notice in O.S.No.362 of 2006, executed another agreement dated 19.12.2001 in favour of the 6th respondent herein by manipulation in order to defraud the petitioner. The 6th respondent filed a suit in O.S.No.500 of 2005 against the respondents 1 to 5 and 7 & 8 herein for Specific performance of an alleged agreement dated 19.12.2001. The case of the 6th respondent in O.S.No.500 of 2005 is that after entering into an agreement with him, the respondents 1 to 5 herein entered into another agreement dated 31.10.2005 with respondents 7 & 8 and therefore, he filed a suit for Specific Performance in O.S.No.500 of 2005 of the alleged agreement dated 19.12.2001.
5. The suit filed in O.S.No.362 of 2006 on the file of the I Additional District Judge, Coimbatore is not in the special list whereas the suit filed in O.S.NO.500 of 2005 is in the trial stage and the witnesses are being examined. According to the petitioner, the subject matter in both the suits are one and the same and the disputes raised are also common. Therefore, he filed the above Transfer petition for the aforesaid relief.
6. This Court, on 21.02.2008, ordered notice and granted interim stay. The respondents entered appearance through their counsel.
7. A counter affidavit has been filed by the respondents 1 to 4, 7 & 8 wherein it is stated that the transfer petition is a belated one and the evidence in O.S.No.500 of 2005 is almost over. Both the cases are standing on a different footing and they cannot be clubbed together. Hence, they prayed for the dismissal of the transfer petition.
8. I have heard the learned counsel for the petitioner and the learned counsel for the respondents 1 to 4, 7 and 8 and the learned counsel for the 6th respondent. I have also gone through the documents and judgments filed in support of their submissions.
9. The learned counsel for the petitioner submits that commencement of trial is not criteria for transferring the case and when the property and the parties are almost one and the same in both the suits, to avoid multiplicity of proceedings and also to avoid the possibility of both the courts taking two different views, the transfer petition is to be ordered. In support of his submission, the learned counsel relied on the following decisions:
1. 2005(11) SCC 512 (Kuldip Singh Bagga Vs Lumax Industries Ltd.)
2. 2004(3) SCC 85 (Chitivalasa Jute Mills Vs Jaypee Rewa Cement)
3. 2004(6) SCC 756 (Gupte Cardiac Care Centre and Hospital Vs Olympic Pharma Care (P) Ltd.)
4. 2008(2) C.T.C. 54 (P.V.Arumugam Vs Gurusamy and others)
10. Per contra, the learned counsel for the respondents 1 to 4, 7 and 8 submits that this transfer petition has been filed by the petitioner with ulterior motive as already he knew about the pending proceedings in O.S.No.500 of 2005 and therefore, the contention of the petitioner that he came to know about the suit O.S.No.500 of 2005 just one week prior to the filing of the transfer petition is false. According to the learned counsel, only one witness is yet to be examined in O.S.No.500 of 2005, where the trial itself is yet to be commenced in O.S.No.362 of 2006. Hence, he prayed for the dismissal of the transfer petition.
11. The learned counsel for the 6th respondent submits that though the property is the same in both the suits, agreements are different and the parties are also different. The learned counsel for the 6th respondent pointed out that in the suit filed in O.S.No.500 of 2005, the petitioner herein is not a party and similarly, in the suit filed in O.S.No.362 of 2006, the respondents 6 to 8 are not parties. Therefore, he contended that no case has been made out by the petitioner to transfer the suit. In support of his submission, the learned counsel for the 6th respondent relies on the following decisions:
1. A.I.R. 2005 SC 2813 (Kasturi Vs Iyyamperumal and others)
2. A.I.R. 1996 SC 2755 (Vijay Pratap and others Vs Sambhu Saran Sinha and others)
3. A.I.R. (2002)1 M.L.J. 90 (Mad) (S.G.Kannappan Vs S.Murugesan and another)
12. I have considered the rival submissions carefully with regard to facts and citations.
13. After hearing the arguments and after going through the documents filed by the parties, I am of the considered view that the petitioner has made out a case to transfer the suit in O.S.No.362 of 2006 to the Fast Track Court No.I, Tirupur to be tried along with suit in O.S.No.500 of 2005.
(1) In 2005(11) SCC 512 (cited supra), the Hon’ble Supreme Court held that when both the suits are arising out of the same agreement/transaction, to avoid multiplicity of proceedings, the latter case is to be transferred to the court where the earlier case is pending and both are to be tried together.
(2) In 2008(2) C.T.C. 54 (cited supra), this court held that when the cause of action for both the suits are not different, one suit could be transferred to the court where the other suit is pending.
(3) In 2004(6) SCC 756 (cited supra), the Hon’ble Supreme Court held as under:
“4. It has not been disputed at the Bar that the two suits arise out of the same transaction. Cause of action of one party arrayed as a plaintiff would be its defence in the suit where it is arrayed as a defendant. Though there are two plaintiffs and two defendants in the suit at Nashik while there is only one plaintiff and one defendant in the suit at Delhi but there is substantial identity of the parties in the two suits. The issues arising for decision would necessarily be the same. Only one of the two suits can be decreed. The decree in one suit in favour of the plaintiff in that suit would entail the dismissal of the other suit. It cannot, therefore, be denied that the two suits deserve to be heard and tried in one court. That would avoid the possibility of any conflicting decrees coming into existence. And certainly the duplication of evidence, oral and documentary both, would be avoided. The parties and the courts would save their time and energy which would needlessly be wasted twice over.”
(4) In 2004(3) SCC 85 (cited supra), the Hon’ble Suprmee Court held that when parties in both the suits are substantially the same, cause of action is also the same and the same set of evidence is noted for determining the issues, to avoid all possibility of conflicting decrees, the latter suit is to be transferred to the court where the earlier suit is pending.
14. Now, in the light of the above judgments, if the facts of the present case are considered, I find that in both the suits, the property is one and the same and the parties are also almost one and the same. In such circumstances, to avoid different decrees being passed by both the courts and in the interest of justice, the latter suit filed in O.S.No.362 of 2006 pending on the file of the I Additional District Judge, Coimbatore is to be transferred and to be tried along with the earlier suit filed in O.S.No.500 of 2005.
15. The decisions relied on by the learned counsel for the 6th respondent is not useful to the case of the 6th respondent as all those judgments have been rendered while considering the provisions of Order I Rule 10 C.P.C. in a specific performance suit.
16. In the result, the transfer petition is allowed. No costs. Connected miscellaneous petition is also closed.
17. Consequently, the suit filed in O.S.No.362 of 2006 on the file of I Additional District Judge, Coimbatore is transferred to the file of the Fast Track Court No.V, Tirupur to be tried along with O.S.No.500 of 2005.
18. Considering the fact that the trial has already commenced in O.S.No.500 of 2005, I direct the Fast Track Court Judge, Fast Track Court No.V, Tirupur on transfer, to dispose of both the suits as expeditiously as possible, preferably within two months from the date of receipt of the entire records in O.S.No.362 of 2006 from the I Additional District Judge, Coimbatore. If necessary, the Fast Track Court Judge, Fast Track Court No.V, Tirupur may conduct the trial on a day today basis to dispose of both the suits within the time stipulated.
3.12.2008
Index : Yes/No
Internet: Yes/No
vaan
To
1. The I Additional District Judge, Coimbatore.
2. The Fast Track Court Judge, Fast Track Court No.V,
Tirupur.
S.RAJESWARAN,J.
vaan
Pre-Delivery Order
TR.C.M.P.No.75 of 2008
3.12.2008
C.R.P.(NPD) No.1239 of 2007
29-11-2007