SARASWATHI Vs. RADHAKRISHNAN

JUDGEMENT

(1.) THIS second appeal is focused by the original plaintiff, animadverting upon the judgment and decree dated 30.04.2008 passed in A.S.No,26 of 2007 by the Subordinate Court, Vellore, confirming the judgment and decree of the trial Court, namely, Additional District Munsif Court, Vellore, in O.S.No,780 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.

(2.) PITHILY and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus: The second appellant/plaintiff herein filed the suit O.S.No,780 of 2005 seeking the relief of declaration of title and permanent injunction in respect of an immovable property. While so, the defendant entered appearance and filed the written statement setting out the relevant facts including the pendency of E.A.No,478 of 2005 in the Court concerned regarding the same subject matter of the suit property. Whereupon, the trial Court took up preliminary issue as to the maintainability of the suit in view of Order 21 Rules 97 and 101 of CPC. Ultimately, the lower Court dismissed the suit on the ground that in view of the pendency of such E.A. proceedings, separate suit is not tenable and as against it, an appeal was filed, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court.

(3.) A bare perusing of and poring over the relevant records including the typed set of papers and the certified copies of judgments of both the Courts below, would display and demonstrate, expatiate and convey that in a different suit, viz., O.S.No,301 of 2004, which was one for specific performance, a decree was passed. Whereupon, E.P.No,32 of 2005 emerged by way of executing the decree in O.S.No,301 of 2004 and at that time, the plaintiff/second appellant herein filed E.A.No,478 of 2005 setting up claim over the suit property involved in O.S.No,301 of 2004. Nonetheless, the same plaintiff/second appellant herein filed the present suit concerned O.S.No,780 of 2005 seeking declaration and possession. It is ex facie and prima facie clear that both the Courts below adverting to the relevant provisions of Order 21 Rules 97 and 101 of CPC, clearly and categorically held that a separate suit was not maintainable and there could be no second thought over it, in view of the settled legal position.