IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Tr.C.M.P No.165 of 2010 C.Sridhar ... Petitioner vs. 1. N.Rukmani 2. C.Suseela ... Respondents This Transfer Miscellaneous Petition has been filed praying that this Court may be pleased to withdraw the suit in O.S.No.74 of 2007, on the file of the Subordinate Court, at Poonamallee, and to transfer the same to the City Civil Court, Chennai, to be tried along with the suit, in O.S.No.5459 of 2007, pending on the file of the II Assistant City Civil Court, Chennai. For petitioner : M/s.Hepzhiba For Respondents: Mr.R.Veeramani O R D E R This Transfer Miscellaneous Petition has been filed praying that this Court may be pleased to withdraw the suit, in O.S.No.74 of 2007, on the file of the Subordinate Court, Poonamallee, and to transfer the same to the City Civil Court, Chennai, to be tried along with the suit, in O.S.No.5459 of 2007, pending on the file of the II Assistant City Civil Court, Chennai. 2. It has been stated that the respondent had filed an original suit, in O.S.No.5459 of 2007, against the petitioner for a decree of permanent injunction restraining the defendants therein from creating any encumbrance with regard to the suit property and from putting up any construction over the suit property. A detailed written statement had been filed by the petitioner, who is the first defendant in the said suit. However, the first respondent herein, the plaintiff in the suit, had amended the plaint. Therefore, the petitioner had filed an additional written https://hcservices.ecourts.gov.in/hcservices/ statement. 3. It has also been stated that the first respondent, who has no right over the co-parcenary property, has filed the vexatious and frivolous suit, with a view to grab the same. While so, the first respondent had filed a suit, in O.S.No.74 of 2007, for partition and separate possession of the suit property, by metes and bounds and to allot 1/3rd of the undivided share in the suit property, bearing Door No.41, Singaram Pillai Street, Mogapair, Chennai. A written statement had also been filed in the said suit. 4. The main contention of the learned counsel for the petitioner is that, during the year, 1975, the petitioner’s father had purchased the property bearing survey No.8, (Part) measuring an extent of 2400 square feet from the common funds of the Hindu undivided family. A portion of the property bearing door Nos.34 and 35 Sivan Koil Tank Street, Villivakkam, Chennai, was sold by the petitioner’s father and the entire sale proceeds was utilized for the marriage of the first respondent. 5. It has also been stated that the property bearing 41, Singaram Pillai Street, Mogappair, Chennai, was also purchased from and out of the common funds of the Hindu undivided family. Hence, the respondents have no share in the said property. Further, by way of an oral undertaking given by the first respondent at the time of the execution of the deed of settlement, the first respondent had become disentitled to a share in the property, at No.41, Singaram Pillai Street, Mogapair, Chennai. 6. It has also been stated that, in both the suits, the parties are one and the same. The triable issues in the suits are also the same. Therefore, it would be appropriate for both the suits to be tried together. As the petitioner and the respondent are residing within the jurisdiction of this Court, the original suit, in O.S.No.74 of 2007, pending on the file of the Subordinate Court, Poonamallee, may be withdrawn and transferred to the II Assistant City Civil Court, Chennai, to be tried along with the suit, in O.S.No.5459 of 2007, in order to avoid multiplicity of proceedings. 7. The learned counsel for the respondents had submitted that the suit, in O.S.No.74 of 2007, has been filed for a decree of partition and the suit, in O.S.No.5459 of 2007, has been filed praying for a decree of bare injunction. It has been further stated that the petitioner has filed the present transfer civil miscellaneous petition only with the mala fide motive of protracting the proceedings in the suit, even though the suit had been filed in the year, 2007. https://hcservices.ecourts.gov.in/hcservices/ 8. It has also been stated that in the suit, in O.S.No.74 of 2007, an ex parte decree had been passed against the petitioner. However, based on the consent given by the first respondent, the ex parte decree had been set aside and the suit had been restored on the file of the Subordinate Court, Poonamallee. Once again, the suit filed by the petitioner had been decreed ex parte. However, the suit had been restored on the file of the court concerned, to be heard on merits. On 15.10.2008, the suit had been listed for trial. The proof affidavit has been filed in the month of October, 2008. However, no cross examination had been done so far. In such circumstances, when the suits filed by the first respondent are at a final stage, the petitioner had filed the interlocutory application. 9. The learned counsel had also stated that the suit properties are different and therefore, the request of the petitioner for a joint trial of the suit cannot be sustained, both in law and on facts. While so, the petitioner has filed the present transfer civil miscellaneous petition before this Court, under Article 227 of the Constitution of India. 10. In view of the submissions appearing on behalf of the parties concerned, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner in the present transfer civil miscellaneous petition. 11. The petitioner has not been in a position to show that the suit properties, in the suits in question, are not the same, as borne out from the description of the properties in the suit schedule, forming part of the plaint. Since, the suits are ripe for trial, it may not be appropriate for this Court to withdraw and transfer the suit, in O.S.No.74 of 2007, pending on the file of the Subordinate Court, at Poonamallee, to the file of the City Civil Court, Chennai, to be tried along with the suit, in O.S.No.5459 of 2007, pending on the file of the II Assistant City Civil Court, Chennai, as prayed for by the petitioner. Further, the suit, in O.S.No.74 of 2007, has been filed by the first respondent for the relief of partition and for separate possession. Whereas, the suit, in O.S.No.5459 of 2007, has been filed for a decree of bare injunction. 12. The petitioner has also not been in a position to point out that real prejudice would be caused to him if the suit, in O.S.No.74 of 2007, pending on the file of the Subordinate Court, Poonamallee, is not withdrawn and transferred to the file of the City Civil Court, Chennai, to be tried along with the suit, in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.5459 of 2007, pending on the file of the II Assistant City Civil Court, Chennai. As such, the transfer miscellaneous 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 2010 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Subordinate Court, at Poonamallee 2. The City Civil Court, Chennai +1cc to Mr.T.Mathi,Advocate Sr 28485 +1cc to Mr.R.Veeramani, Advocate Sr 28702 BS(CO) km/13.5. Tr.C.M.P No.165 of 2010 https://hcservices.ecourts.gov.in/hcservices/