A.K.Eswaramoorthy v. A.K.Sivasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.04.2017
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD)No.308 of 2017 and CMP No.1414 of 2017 1.A.K.Eswaramoorthy 2.A.K.Vellingiri 3.Padmavathi 4.S.Elango ...
Petitioners/Defendants Vs.
1.A.K.Sivasamy ...
1st Respondent / Plaintiff 2.A.K.Gopalasamy 3.The Sub-Registrar, Office at the Sub-Registrar Office at Sulur (exornerated) 4.The Sub-Registrar, Office at the Sub-Registrar Office at Annur (exornerated) 5.The Tahsildar Sulur Taluk Office, Sulur, Coimbatore District.
6.The District Collector, Coimbatore Coimbatore Collectorate Campus, Coimbatore ... Respondents/Defendants Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order passed in I.A.No.644 of 2015 in O.S.No.483 of 2011 dated 02.12.2016, on the file of the Third Additional District and Sessions Judge, Coimbatore.
For Petitioners : Mr.E.K.Kumaresan For R-1 : Mr.Ma.Pa.Thangavel
O R D E R
This Civil Revision Petition has been filed against the fair and decreetal order passed in I.A.No.644 of 2015 in O.S.No.483 of 2011 dated 02.12.2016, on the file of the Third Additional District and Sessions Judge, Coimbatore.
2. The revision petitioners are defendants 2, 3, 4 & 9 in the suit. The first respondent is the plaintiff and the respondents 2 to 6 are defendants 1, 5 to 8. The first respondent filed suit for partition and for division of the property by metes and bounds and to allot 1/5th share to him. The first respondent/plaintiff also filed application in I.A.No.644 of 2015 for a direction to the 4th petitioner / 9th defendant directing him to deposit the monthly rent amount of Rs.22,000/- into the Court, pending disposal of the suit.
3. According to the first respondent/plaintiff, the 4th petitioner is a tenant in respect of the first item of the suit property and is paying rent to the 2nd petitioner. The 2nd petitioner is not entitled to
receive the rent and therefore filed application to deposit the rent into the court. The 2nd petitioner filed counter which was adopted by 1st, 3rd and 4th petitioners denying the averments made in the affidavit. According to the 2nd petitioner, the original owner Mr.A.K.Palanisamy, by sale deed dated 21.09.2009 bequeathed the first item of the suit property to the 2nd petitioner. He filed O.S.No.167 of 2011 and proved the Will. The first respondent also filed O.S.No.220 of 2011 against the petitioners 2 & 4 seeking declaration that the decree passed in O.S.No.167 of 2011 as null and void. The rent claimed by the first respondent is not Rs.22,000/- and it is only Rs.2,500/-.
4. The learned Judge, considering all the materials on records and averments in the affidavit and counter affidavit, allowed the application, directing the petitioner to deposit the rent of Rs.22,000/- into the court, pending disposal of the suit. Against the said order, the present Civil Revision Petition is filed.
5. The learned counsel for the petitioners mainly contended that the rent is only Rs.2,500/- and not Rs.22,000/-. The learned Judge failed to consider this aspect as stated in the additional
written statement. The 2nd petitioner is depending upon the rental income for his medical expenses. The 2nd petitioner has proved the Will and obtained the decree in O.S.No.167 of 2011. Unless the said decree is set aside, the first respondent is not entitled to relief sought for in the suit. The learned Judge erred in directing the 4th petitioner to deposit the rent of Rs.22,000/- into the court.
6. The learned counsel appearing for the first respondent submitted that the suit is filed for partition and the first respondent is entitled to 1/5th share in all the suit property and the first respondent has already filed O.S.No.220 of 2011 for setting aside the decree obtained by the 2nd petitioner in O.S.No.167 of 2011 with regard to the alleged Will. The first respondent was not a party to the said suit in O.S.No.167 of 2011.
7. Heard the learned counsel for the petitioner, 1st respondent and perused the materials available on record.
8. The first respondent is claiming 1/5th share in all the items of the suit property. Therefore, the learned Judge is not correct in directing the 4th petitioner in depositing the entire into the court.
Further, there is no dispute with regard to quantum of rent paid by the 4th petitioner. According to the first respondent, the rent is only Rs.22,00/- whereas, it is only Rs.2,500/-, according to the petitioner. Both the parties have not produced any materials to substantiate their claim. In the said circumstances, it will be in the interest of justice, if the order of the learned Judge is modified directing the 4th petitioner to deposit a sum of Rs.2,500/- pending disposal of the above suit in O.S.No.483 of 2011, without prejudice to the contention of the parties herein.
9. This Civil Revision Petition is disposed of with the above direction. No costs. Consequently, connected Miscellaneous Petition is closed.
17.04.2017 Speaking/Non-Speaking order (1⁄2) Index :Yes/No rgr To The III Additional District and Sessions Judge, Coimbatore.
V.M.VELUMANI,J.
rgr C.R.P.(PD)No.308 of 2017 17.04.2017 (1⁄2) http://www.judis.nic.in