RAJASUNDARI Vs. GOWRI ALIAS AVADUAI AMMAL

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the Order dated 20-9-2004 passed in LA. No. 10477 of 2004 in O. S. No. 12449 of 1996 by the VII Assistant Judge, city Civil Court, Chennai, partly allowing the petition filed under Order 23, Rule 1 (3), CPC and declining to grant leave to file a fresh suit. The plaintiff is the Revision-Petitioner.

(2.) CLAIMING that she is the adopted daughter of Sankaranarayana Pillai, the plaintiff has filed the suit in O. S. No. 1826 of 1993 before the High Court for partition and Separate possession of "a" and "b" schedule Property. "a" Schedule property consists of six items, Item (vi) of "a" Schedule property is situated at Chennai. Hence, the plaintiff has filed the suit after obtaining leave to sue. When the suit was pending, due to enhancement of pecuniary jurisdiction of Subordinate Courts, the Suit was transferred to City Civil Court, Chennai and renumbered as O. S. No. 12449 of 1996, resisting the suit, the Defendants have filed the written statement. The trial commenced and the parties also adduced evidence.

(3.) I. A. No. 10477 of 2004 :- At the stage, when the suit was pending Part-heard stage, the plaintiff has filed this application under order 23, Rule 1 (3) CPC stating that the defendants have taken a defence that the properties situated at Madras does not belong to Sankaranarayana Pillai and that the court has no territorial jurisdiction to try the suit. The plaintiff sought to withdraw the suit contending that all the Plaint Schedule Properties except Item No. (vi) in "a" schedule Properties (situated at Madras) are situated at Tirunelveli and that during the final decree proceedings, the Subordinate court, Tirunelveli only would be in a better position to appoint Commissioner to effect partition of the suit properties. Hence, the plaintiff has filed the Application seeking to withdraw the suit with liberty to file a fresh suit on the same cause of action before the sub-Court, Tirunelveli.