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NELSON versus SUNDARI

High Court of Madras

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Nelson v. Sundari - C.R.P.(NPD)(MD)No.1007 of 2006 [2007] RD-TN 400 (31 January 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated :31/01/2007

Coram:

The Hon'ble Mr.JUSTICE S.RAJESWARAN

C.R.P.(NPD)(MD)No.1007 of 2006

and

M.P.No.2 of 2006

Nelson ... Petitioner Vs.

1. Sundari

2. Swarnamma

3. George Joseph

4. Sarasammal

5. Suseelan

6. Padmakumari

7. Thompson

8. Robinson

9. Stephenson

10. Wilson

11. Rosilant

12. Suja

13. George

14. Bovas

15. Beena

16. Athira

17. Archana ... Respondents (Notice to Respondents 2 to 17 given up)

PRAYER: Revision Petition is filed under Section 115 of C.P.C. against the fair and decreetal order passed in I.A.No.779 of 2006 in O.S.No.644 of 1977 dated 09.11.2006 on the file of the 1st Additional District Munif Court, Kuzhithurai. For Petitioner : Mr.M. Vallinayagam

For Respondents : Mr.K.N.Thambi

(R2 to R17 notice given up)

:O R D E R



This Civil Revision Petition is directed against the order passed in I.A.No.779 of 2006 in O.S.NO.644 of 1977 dated 09.11.2006 on the file of the 1st Additional District Munsif Court, Kuzhithurai.

2. The 9th defendant in O.S.No.644 of 1977 is the revision petitioner before this Court. He is aggrieved by the order of the trial Court dated 09.11.2006, in which the 9th defendant prays for the appointment of an Advocate Commissioner to obtain the specimen signatures of the plaintiff and to compare the said signatures along with the admitted signatures contained in Page No.12 of the plaint in O.S.No.644 of 1977, Page No.1 of the affidavit in I.A.No.418 of 2002, Docket sheet of I.A.No.302 of 2003 and Affidavit page No.2 of I.A.No.302 of 2003. The trial Judge dismissed the application and hence the above Civil Revision Petition.

3. The brief facts of the case are as follows:- The plaintiff/first respondent herein has filed a suit in O.S.No.644 of 1977 on the file of the District Munsif Court, Kuzhithurai against the father of revision petitioner herein and others for partition. As against the dismissal of the judgment and decree of the trial Court dated 08.02.1983, the plaintiff/first respondent herein has filed an appeal in A.S.No.132 of 1983 before the Subordinate Judge, Kuzhithurai. Then the appellate Court had allowed the appeal and decreed the suit. As against the judgment of the first appellate Court, the deceased father of the present revision petitioner had filed second appeal in S.A.No.2060 of 1984 before the Principal Seat at Madras and the same was dismissed on 01.03.2001. Against the order of the High Court, a Special Leave Petition was filed by the appellants before the Apex Court including the present revision petitioner and the same was dismissed on 01.10.2004. Against which, the same appellants filed a review petition before the Hon'ble Supreme Court, which was also dismissed on 17.08.2005.

4. In the meanwhile, the plaintiff/first respondent herein filed an application in I.A.No.418 of 2002 for passing a final decree and another application in I.A.NO.419 of 2002 for appointment of an Advocate Commissioner. The legal heirs of the deceased father of the revision petitioner were impleaded.

5. It is the case of the revision petitioner that the plaintiff in the suit is only a name lender and there is no plaintiff at all and the person who gave evidence as P.W.1 and conducting all the proceedings in the suit is an Advocate. Thus the advocate is abusing the process of the Court and playing fraud. According to the revision petitioner the signatures affixed by the plaintiff in the suit proceedings are different and varying from one another and somebody is forging the signatures of the plaintiff. Hence, in order to find out the truth and veracity and to unearth the fraud that is being committed by the Advocate, I.A.No.779 of 2006 was filed by the 9th defendant in the suit. The trial Court dismissed the same. Hence, the above Civil Revision Petition has been filed.

6. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent/plaintiff. I have also carefully considered the rival submissions made by both the parties.

7. I am anguished to note that a suit in O.S.No.644 of 1977 which was filed on 24.10.1977, is still pending before the trial Court for passing of the final decree in I.A.No.418 of 2002.

8. It is not in dispute that the plaintiff succeeded in the partition suit and the Apex Court of India has also put its stamp of approval and thereafter the final decree proceedings are pending before the trial Court. At that stage, the 8th defendant in that suit, who is the sister of the revision petitioner filed an application in I.A.No.173 of 2005 before the trial Court to pass an order directing the plaintiff to appear in the Court in person in order to ascertain the signature of the plaintiff to know whether the present proceedings in this suit are being prosecuted with her consent and knowledge. The application was dismissed on 16.11.2005. Against which, the 8th defendant preferred in C.R.P.No.288 of 2006 before this Court and the same was also dismissed on 21.04.2006. This Court has clearly observed in the said order dated 21.04.2006 that the revision petitioner therein cannot come forward with such an application to summon the plaintiff before this Court and to make unnecessary allegations.

9. Thereafter the 9th defendant, revision petitioner herein has filed I.A.No.518 of 2006 before the District Munsif Court, Kuzhithurai praying to pass an order requiring the personal appearance of the plaintiff before the trial Court. In support of the above application, the revision petitioner has filed an affidavit stating that there is no such plaintiff as prescribed in the plaint and the signatures alleged to have been affixed by the plaintiff are different and varying from one another and somebody is conducting the suit proceedings by forging the signatures in the name of the plaintiff and the said application was dismissed by the trial Court on 18.08.2006.

10. On 30.10.2006 the plaintiff filed a revision petition before this Court in C.R.P.(NPD)No.901 of 2006 praying to direct the District Munsif Court, Kuzhithurai to dispose of the I.A.No.418 of 2002 in O.S.No.644 of 1977 on its file within a time frame. This Court by order dated 02.11.2006 has directed the trial Court to dispose of the final decree application in I.A.No.418 of 2002 in O.S.No.644 of 1977 as expeditiously as possible, preferably on or before 15.12.2006. Then, the said Civil Revision Petition was again posted before this Court on 08.11.2006 "For being mentioned". On that date, this Court directed the learned 1st Additional District Munsif, Kuzhithurai to dispose of the I.A.No.419 of 2002 filed for appointment of an Advocate Commissioner and other connected applications before disposing of I.A.No.418 of 2002 in O.S.No.644 of 1977 for passing final decree within the time already fixed by this Court.

11. In the meanwhile, the 9th defendant/revision petitioner herein has filed the application in I.A.No.779 of 2006 for the above said relief and the order of dismissal dated 09.11.2006 made in that I.A.No.779 of 2006 is now under challenge before this Court. This Court by order dated 24.11.2006 ordered notice regarding admission and granted interim stay. This Court further directed the Registry to call for report from the trial Court viz., the 1st Additional District Munsif Court, Kuzhithurai about the allegations made by the revision petitioner in the affidavit filed in support of the stay petition.

12. In the affidavit, the revision petitioner has stated that the learned 1st Additional District Munsif Court without giving any opportunity or enquiry passed an order disposed all the applications on 09.11.2006 on the pretext of complying with the direction of this Court made on 24.11.2006. The learned 1st Additional District Munsif, Kuzhithurai submitted a report dated 19.12.2006 narrating the entire facts and on reading of the same would make it very clear that the trial Judge is only doing his duty that too on the basis of the directions issued by this Court, keeping in mind that the suit was filed as early as in the year 1977 i.e., on 24.10.1977. I find that the allegations levelled against the trial Judge are baseless and it is high-time the parties are restrained from making the allegations against the Judicial Officer without any basis that too when the proceedings are going in favour of the other side.

13. Now coming to the order passed in I.A.NO.779 of 2006, I find no merits to interfere with the same as this I.A.No.779 of 2006 is nothing but another attempt on the part of the revision petitioner/9th defendant to stall the final decree proceedings. Already he filed an application in I.A.No.518 of 2006 for the very same relief on the same set of facts and the same was dismissed. This I.A.No.518 of 2006 was filed by the revision petitioner herein after the previous application filed by the sister in I.A.No.173 of 2005 was dismissed and the same was upheld by this Court also. Therefore, it cannot be said that the revision petitioner did not know anything about the proceedings of the filing of I.A.No.173 of 2005 by his sister and the order passed by this Court in C.R.P.No.288 of 2006. I find there is no bona-fide on the part of the revision petitioner to feign ignorance about the earlier application filed by his own sister that too in the very same suit. I.A.No.779 of 2006 is nothing vexatious which is reopening a closed matter again and again on some pretext or other in order to prevent the plaintiff from getting a final decree. Even though, the suit was filed by her in the year 1977, this kind of re- agitating and re-litigating again and again a closed matter before this Court should not be permitted and such kind of misadventurism should be nipped in the bud. By changing the prayer or altering words of the prayer, the revision petitioner should not be permitted to abuse the process of the Court, by taking things for granted. Hence, I find there is absolutely no merits in the Civil Revision Petition and I have no hesitation in dismissing the same. The first respondent even after getting a direction from the Court to pass orders in the final decree application is still languishing before the trial Court because of the stay obtained by the revision petitioner in the above civil revision petition. Therefore, the plaintiff needs to be compensated for this adament and stubborn attitude of the revision petitioner in procrastinating the final decree proceedings. Therefore I impose a cost of Rs.3,000/- (Rupees three thousand only) on the revision petitioner, which will be directly payable to the plaintiff within a period of eight weeks from today.

14. In the result, this Civil Revision Petition is dismissed with costs. Consequently, connected M.P.No.2 of 2006 is also dismissed. Considering the nature of the case and the long pendency of the suit and also the prolonged litigation from the year 1977, I consider giving a suitable direction to the trial Court to dispose of the final decree application within a period of three months from the date of receipt of a copy of this order. To

The 1st Additional District Munif Court,

Kuzhithurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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