KS VIJAYAKUMARI Vs. BALAMANI

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed under Article 227 of the Constitution of India, challenging the order dated 16.2.2012 in Tr.O.P.No.83 of 2011, on the file of Principal District Court, Erode.

(2.) THE revision petitioners are the defendants 5, 6 and 9 in O.S.No.441 of 1996, which has been filed for partition and separate possession and they are also defendants, 2,3 and 5 in the Suit in O.S.No.536 of 2011, which has been filed for permanent injunction. In the latter Suit, there is an order of interim injunction in I.A.No.903 of 2011. Pending partition suit in the stage of examination of P.W.3 before the Principal Sub Court, Erode, the second respondent in the Transfer Petition has filed a Suit for bare injunction, which is also pending before the First Additional District Munsif, Erode. Whileso, the petitioners have filed Tr.O.P.No.83 of 2011, under section 24 of Civil Procedure Code to withdraw the Suit in O.S.No.536 of 2011 from the file of First Additional District Munsif, Erode, and to transfer the same to the file of Principal Sub Court, Erode, for joint trial. THE said Transfer Petition has been dismissed by the learned Principal District Judge, Erode, on the ground that the Partition Suit is at the stage of 'Part Heard' and posted for examination of P.W.3 and the point for consideration in both the Suits are different, cause of action also entirely different and the Partition Suit is pending from 1996 and therefore, the attempt made by the petitioners to transfer the Suit of the year 2011 for a joint trial cannot be allowed and therefore dismissed the case. As against which, the present Revision is filed.

(3.) ADMITTEDLY, a Suit for Partition has been filed in the year 1996 in O.S.No.441 of 1996, the same has been proceeded with trial and the matter is at the stage of examination of P.W.3. Thereafter, the second respondent herein filed a Suit for permanent injunction in the year 2011 in O.S.No.536 of 2011, against the petitioners and respondents 3 and 7 and obtained an order of interim injunction in I.A.No.903 of 2011. It is not in dispute that the Suit for Partition is in the stage of trial and posted for examination of P.W.3 and at that stage a Suit for Permanent Injunction in O.S.No.536 of 2011 has been filed and the petitioners have moved the learned Principal District Judge, Erode, by filing a Petition in Tr.O.P.No.83 of 2011 under section 24 of CPC to withdraw the Suit in O.S.No.536 of 2011 pending before the learned First Additional District Munsif, Erode and transfer the same to the file of learned Principal Subordinate Judge, Erode, for joint trial. However, the learned Principal District Judge, Erode, took a view that the Suit pending before the Principal Sub-Court, Erode, is a Suit for Partition and the same is posted for examination of P.W.3, and the present Suit viz. O.S.No.536 of 2011, is for Permanent injunction, which is pending before the learned First Additional District Munsif, Erode, and the point for consideration in both the Suits are entirely different and the cause of action is also different.