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Thillai Ganapathy vs Kasinathan on 26 September, 2008

Madras High Court
Thillai Ganapathy vs Kasinathan on 26 September, 2008
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.09.2008
CORAM
THE HONOURABLE MR. JUSTICE M.VENUGOPAL
C.R.P.(P.D.)No.1706 of 2008
and
M.P.No.1 of 2008

Thillai Ganapathy					...   Petitioner
Vs

1. Kasinathan
2. Aana Kounder @ Ananda Kounder		...   Respondents


	Civil Revision Petition filed under Article 227 of the Constitution of India  against the fair and decretal order in Tr.O.P.No.82 of 2006 on the file of the Principal District Judge, Villupuram dated 16.07.2007.	
				

		For Petitioner     :Mr.N.Suresh

		For Respondents    :Mr.R.Gururaj
							
					O R D E R

This Civil Revision Petition is filed by the revision petitioner against the order dated 16.07.2007 in Tr.O.P.No.82 of 2006 by the learned Principal District Judge, Villupuram in dismissing the petition without cost.

2. The revision petitioner/petitioner is the defendant in O.S.No.134 of 2003 on the file of the learned Additional Subordinate Judge, Tindivanam. The first respondent herein has filed a Suit O.S.No.134 of 2003 on the file of the learned Additional Subordinate Judge, Tindivanam for recovery of money on the basis of simple mortgage deed dated 15.07.1991 against the revision petitioner and the second respondent in the revision. Admittedly, the revision petitioner and the second respondent herein are son and father respectively.

3. It is represented that the first respondent and the revision petitioner were running a partnership business in Koliyanur Village, Viluppuram Taluk, by taking dealership for running diesel pump retail outlet under the name of Ananda Agency at NKT Road, Kolianoor. It is further represented that the first respondent has been contributing to the partnership business small amounts on different occasions and the revision petitioner being a partner in the business, in order to ensure security for the amounts contributed by the first respondent, the first respondent got executed the simple mortgage deed dated 15.07.1991 from the petitioner herein. The contention is that there has been no actual payment for the mortgage deed dated 15.07.1991. Further, the stand taken in the O.S.No.134 of 2003 is to the effect that the mortgage deed dated 15.07.1991 has not been supported by consideration as mentioned in the said deed and the same has been executed only to ensure repayment of the amount contributed by the first respondent in the partnership business. The further case is that the partnership business was only run by the first respondent and he alone was maintaining the accounts without actually disbursing the profits to the petitioner. Therefore, the revision petitioner has projected the suit in O.S.No.43 of 2006 on the file of the learned Principal District Judge, Villupuram for effecting dissolution of partnership business Ananda Agency and for recovery of sum of Rs.5,28,290/- being the estimated share of the petitioner and also for rendition of accounts.

4. The stand of the revision petitioner is that a comprehensive suit in O.S.No.43 of 2006 on the file of the learned Principal District Judge, Villupuram has been filed for dissolution of partnership business and the same is pending. While deciding the case in O.S.No.43 of 2006 pending on the learned Principal District Judge, Villupuram, the defence raised by the revision petitioner and the second respondent in O.S.No.134 of 2003 on the file of the learned Additional Subordinate Judge, Tindivanam will have due relevance and germane and therefore, the petitioner has filed Tr.O.P.No.82 of 2006 before the learned Principal District Judge, Villupuram seeking transfer of the case O.S.No.134 of 2003 pending on the file of the learned Additional Subordinate Judge, Tindivanam to his file to be tried along with the Suit O.S.No.43 of 2006. It is represented that both the suits are ripe for trial.

5. The learned Principal District Judge has dismissed the Tr.O.P.No.82 of 2006 inter alia stating that O.S.No.134 of 2003 on the file of the learned Additional Subordinate Judge, Tindivanam has been filed for recovery of money on the basis of simple mortgage and O.S.No.43 of 2006 pending on the file of learned Principal District Judge, Villupuram has been filed for dissolution of partition and rendition of accounts etc., and therefore, the relief sought for in the suit O.S.No.43 of 2006 is entirely different and that there is no issue to be decided jointly etc.

6. In case where the litigating parties in both the suits were one and the same and the subject matter involved in both the suits apart from the common nature, facts being inter-twined and over lapped, the possibility of conflicting decisions if the suits were tried separately could not be totally ruled out in the considered opinion of this Court. As a matter of fact, the involvement of common question of law and fact is not only the ground authorising the transfer of suits under Order 24 and even when the Court opines that if the facts inter-twined with the different causes of action are separated and suits tried independently, it would
result in conflicting decisions, it has power to allow transfer. Therefore, applying the aforesaid principles, in order to avoid conflicting plurality of decisions, inasmuch as the litigating parties in both the suits are one and the same and notwithstanding the fact that the subject matter involved in both the suits are inter-twined and over lapped, this Court allows the Civil Revision Petition in the interest of justice and resultantly directs the withdrawal of Suit O.S.No.134 of 2003 pending on the file of the learned Additional Subordinate Judge, Tindivanam to the file of the learned Principal District Judge, Villupuram and the learned Principal District Judge is to try the O.S.No.134 of 2003 apart from trying O.S.No.43 of 2006 pending on his file and it is open to the learned Principal District Judge, Villupuram to try both the suits either simultaneously or jointly as he deems fit and proper in the facts and circumstances of the case. As informed that the pleadings are complete and the matters are ripe for trial, the learned Principal District Judge, Villupuram is directed to dispose of the Suits O.S.Nos.134 of 2003 and 43 of 2006 within a period of six months from the date of receipt of a copy of this order and the parties and learned counsels appearing on their behalf are directed to lend a helping hand of their due co-operation in this regard.

M.VENUGOPAL,J.

gms

With the above observations, the Civil Revision Petition is disposed of without costs. The connected Miscellaneous Petition is closed.

26.09.2008
gms
Index : Yes/No
Internet : Yes/No

To
Principal District Judge, Villupuram

C.R.P.(P.D.)No.1706 of 2008

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