O M PARAMASIVAM Vs. K SUBRAMANIYAN

JUDGEMENT

(1.) THE petitioner/first respondent/plaintiff has filed this civil revision petition as against the order dated 10. 09. 2009 in I. A. No. 239 of 2009 in o. S. No. 121 of 2006 passed by the Learned Additional District Judge, Salem (Fast track Court No. 1) in allowing the application filed by the Respondents Nos. 1 to 3/petitioners/defendant Nos. 3 to 5 under Section 151 of Civil Procedure Code to pass an order that Issue No. 4 may be heard immediately as a preliminary one on the basis of so called impugned will dated 08. 02. 1987.

(2.) THE Learned Additional District Judge, Salem (Fast Track Court No. 1) while passing orders in I. A. No. 239 of 2009 dated 10. 09. 2009 has inter alia observed that, 'this court comes to the conclusion that the suit is barred by limitation for the reason that no suit has been filed against the executor envisaged by the law and and besides this the plaintiff cannot also seek partition on the basis of a registration copy of the will which itself exposes suspicious circumstances, and beyond that the plaintiff has no right to continue the suit on his own, showing that he has alienated the suit property to the third person joining hands with Defendant Nos. 1 and 2 who has already executed a valid registered document of sale in favour of the respondents/petitioners long prior to the suit and as such the suit is not maintainable, and resultantly, allowed the application without costs and observed that the preliminary issue in regard to the maintainability of the suit may be heard first. '

(3.) THE learned counsel for the revision petitioner/first respondent/plaintiff contends that the order passed by the trial Court in I. A. No. 239 o9f 2009 is vitiated by material irregularities and an illegal ones and further that the trial Court has committed an error in predetermining the issue and added further question of limitation has not been raised in the pleading and no issue has been framed and indeed the suit has been filed within time and even otherwise, the issue of limitation can be decided only after full trial and in short the observation of the trial Court in its order in I. A. No. 239 of 2009 to the effect that the suit is barred by the limitation etc. , is an otiose one and unfortunately, these aspects have not been adverted to, and appreciated by the trial Court in a proper legal perspective which has resulted in miscarriage of justice and therefore prays for allowing the civil revision petition to prevent and aberration of justice.