C T SAMPATH Vs. MARY MANOHARI

JUDGEMENT

(1.) THIS Civil Revision Petition is filed challenging the order dated 12.12.2011 in I.A.No.148 of 2011 in O.S.No.124 of 2008 on the file of the Additional District Judge (Fast Track Court No.1), Chengalpattu.

(2.) THE revision petitioner is the first defendant in the suit. The respondents 1 to 5/plaintiffs filed the suit for declaration that the partition deed created by the first defendant dated 3.8.2006 in document No.10173, is null and void and not acted upon; to pass an usual preliminary decree for partition of the plaintiff No.1's 1/5th share in the suit properties by dividing the suit properties into 5 equal shares and to allot one such share to the plaintiffs by metes and bounds and to pass a final decree and be prepared to carry out separate possession of the joint family properties suit properties in favour of the first plaintiff in pursuance of the preliminary decree that may be passed in the above suit and separate possession of the same be delivered to the plaintiffs. The defendants filed written statement and contested the suit. The trial Court, after framing issues and additional issues, proceeded with the trial and it has commenced trial on 1.7.2010. The first plaintiff filed her proof affidavit and examined herself as P.W.1 in chief in part on 1.7.2010 itself and it was further posted for further examination in chief of P.W.1 on 21.10.2010. At that stage, the petitioner/first defendant filed an interlocutory application under Order 2 Rule 2, Order 7 Rule 11(d) and Sections 11, 12 and 151 C.P.C. to take up the preliminary issues, viz., (i) whether the suit is maintainable in view of the decree of dismissal as not pressed, dated 12.12.2006 in O.S.No.396 of 2005 on the file of the Principal District Court, Chengalpattu and (ii) whether the plaintiffs are entitled to any relief in view of the registered partition deed dated 3.8.2006 already effected and to decide the same to reject the plaint and dismiss the suit as barred by the principles of res-judicata. The said application was contested by filing counter affidavit by respondents 1 to 5/plaintiffs. The trial Court, on a consideration of the case of the parties, dismissed the said interlocutory application, against which, the present C.R.P. is filed by the petitioner/first defendant.

(3.) THIS Court also heard Mr.M.Guruprasad, learned counsel for the respondents 6 to 8 on the above aspects.