1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.01.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.13 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 B.Arunachalam .. Petitioner/Respondent Vs. R.Shankar .. Respondent/Petitioner Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 against the fair and decretal order dated 29.10.2010 passed in Tr.O.P.No.116 of 2010 by the Principal District Court, Tirunelveli. For Petitioner : Mr.H.Arumugam For Respondent : Mr.M.V.Venkataseshan ORDER The order dated 29.10.2010 passed in Tr.O.P.No.116 of 2010 by the Principal District Court, Tirunelveli is being challenged in the present Civil Revision Petition. 2. The respondent herein as petitioner has filed Tr.O.P.No.116 of 2010 on the file of the Court below under Section 22 of the Code of Civil Procedure, 1908 praying to withdraw and transfer Original Suit No.45 of 2010 from the file of the Principal Sub Court, Tirunelveli to the file of the Fast Track Court No.I, Tirunelveli so as to try the same along with Original Suit No.90 of 2009. 3. It is stated in Tr.O.P.No.116 of 2010 that the respondent therein as plaintiff has instituted Original Suit No.45 of 2010 on the file of the Sub Court, Tirunelveli for the relief of specific performance and further he has filed Original Suit No.90 of 2009 on the file of the Fast Track Court No.I, Tirunelveli for the relief of specific performance. In both the suits, the respondent/petitioner has been shown as defendant. Further it is stated in Tr.O.P.No.116 of 2010 that in both the suits, the respondent/ petitioner/defendant has taken a definite stand that the suit sale agreements have been executed only as a security for repayment of the loan received from the plaintiff and under the said circumstances both suits must be tried together and therefore the present petition has been filed. 4. The Court below after considering the defence taken on the side of the respondent/ petitioner/defendant in both the suits, has allowed the same. Against the order passed by the Court below, the present Civil Revision Petition has been preferred. https://hcservices.ecourts.gov.in/hcservices/ 2 5. The learned counsel appearing for the revision petitioner/respondent/plaintiff has repeatedly contended that the present petition has been filed under Section 22 of the Code of Civil Procedure, 1908 and the same is not legally maintainable and further the suit property shown in Original Suit No.45 of 2010 is totally different from the suit property shown in Original Suit No.90 of 2009 and under the said circumstances both suits need not be tried together or in both the suits simultaneous trial need not be conducted and the Court below without considering the above factual aspects has erroneously allowed the petition and therefore the order passed by the Court below is liable to be interfered with. 6. It is an admitted fact that the revision petitioner/respondent/plaintiff has instituted Original Suit No.45 of 2010 on the file of the Principal Sub Court, Tirunelveli for the relief of specific performance and likewise he has filed Original Suit No.90 of 2009 on the file of the Fast Track Court No.I, Tirunelveli for the relief of specific performance. It is also equally an admitted fact that in both suits, the suit properties are not one and the same. 7. In fact this Court has perused the entire written statement filed on the side of the respondent/petitioner/defendant, wherein it has been specifically pleaded that the suit sale agreements have been executed by the respondent/ petitioner/defendant only as a security for the purpose of repaying the amount received from the revision petitioner/respondent/plaintiff. 8. Considering the fact that since the definite stand taken by the respondent/ petitioner/defendant that the suit sale agreements have been executed by him as a security for repaying the amount alleged to have been received by him from the revision petitioner/respondent/plaintiff, it is needless to say that in the interest of justice, both suits must be tried by one Court. Under the said circumstances, the petition in question is legally maintainable. The Court below after considering the main defence taken on the side of the respondent/petitioner/defendant has rightly allowed the petition. In view of the discussion made earlier, this Court has not found any error in the order passed by the Court below and further of course it is true that the present petition has been filed under Section 22 of the Code of Civil Procedure, 1908, but the present petition should be filed under Section 24 of the said Act. Even though wrong provision of law has been quoted in the present petition, the Court is having enormous power to pass proper order and on that ground also the order passed by the Court below is perfectly correct. 9. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs and the order passed in Tr.O.P.No.116 of 2010 by the Principal District Court, Tirunelveli is confirmed. Consequently, connected https://hcservices.ecourts.gov.in/hcservices/ 3 Miscellaneous Petition is dismissed. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To The Principal District Judge , Tirunelveli. Smn rl/2c – 04.02.2011 C.R.P(NPD)(MD)No.13 of 2011 and M.P(MD)No.1 of 2011 24.01.2011 https://hcservices.ecourts.gov.in/hcservices/