S.Shri Subitha v. P.Mariammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) THURSDAY, THE 05th DAY OF APRIL 2018 THE HON'BLE MR. JUSTICE N.SATHISH KUMAR A. No.8376 of 2017 in C.S.D.No.45760 Of 2017 S.Shri Subitha, W/o.Dr.Saravanan, No.4/315, CLRI Nagar Road Ruby Complex Road, Neelangarai, Chennai 600 15 ...Applicant/Plaintiff -vs1.Mrs.P.Mariammal, W/o.Late N.Pitchaimani, B-15, Guhaas Apartments Thiruvalluvar Salai, Thiruvanmiyur, Chennai 600 041 2.Mr.P.Sakthikumar, S/o.Late N.Pitchaimani B-15, Guhaas Apartments Thiruvalluvar Salai, Thiruvanmiyur, Chennai 600 041 3.Mrs.Adhi Lakshmi, W/o.Senthil, Flat No.71, Chaand Towers, L.B.Road, Thiruvamiyur, Chennai 600 041 4.Mrs.Vijayalakshmi, W/o.Balaji, Plot NO.11, 1st Floor, Natco Colony, Kottivakkam, Thiruvanmiyur, Chennai 600 041 5.Mr.A.Jeyaraman, S/o.Algarasamy, 16/9, 11th Lane, Indira Nagar, Adyar,Chennai 20

6.Mr.A.Ganesa Pandiyan S/o.Algarasamy 1/404, Vembuliamman Koil Street Kottivakkam, Chennai 600 041 7.Mr.S.Algarasamy, 17, Kamaraj Nagar, Opp.BRIL Ink, Thiruvanmiyur Chennai 600 041 8.M/s. Ramaniyam Real Estates Private Limited, No.17/35, 2nd Main Road, Gandhi Nagar, Adayar, Chennai 600 020 9.Jayanthi Jewellers, No.69, L.B.Road, Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 10.Amirtha Ice Cream Company, Mr.Thirupathi Raja, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 11.Jai Sports, Mr.C.Saravanan, No.69, L.B.Road (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 12.Gajendra Rubber Stamp Works, Mr.Bala Sundaram, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 13.Mercy Electronics, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 14.Sai Ganesh Enterprises, Mr.Anantha Shankar, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041

15.Mr.Muthu Kumar, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 16.Konica Silver Color Lab, Mr.S.Pushpanayagam, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 17.Darshan Optics, Mr.Ravi Kumar, No.69, L.B.Road, (Near Thiruvamiyur Singal) Thiruvanmiyur, Chennai 600 041 18.Indus Towers Ltd No.5, Esspee IT Park, Jawaharlal Nehru Street (opp Jaya TV) Ekkatuthangal, Chennai 600 032 19.Tummy Tickle 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096 20.Cricket Drome, 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096 21.Academy of Indian Music and Arts 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096 22.Kriyates Recreation Club 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096 23.MAS School, 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096

24.Karate Training Centre, 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096 25.Mr.Ranjith Baba, 361, OMR Escapade, Madha Koil Street Okkiam Thoraipakkam, Chennai 600 096 26.RK Centring 5/534, Mada Koil Street Vivekananda Nagar, Okkiam Pettai, Thoraipakkam, Old Mahabalipuram Road, Chennai 600 096 27.Mr.Karupiah, WARD 14, Veerammal Tea Shop, Kodaikanal Main Road, Dindigul District, Pannaikadu 624 210 ...Defendants/Respondents Application praying that this Hon'ble Court be pleased to grant leave to the Plaintiff to institute the suit before this Hon'ble Court against the Defendants pending disposal of the suit.

This application coming on this day before this court for hearing the court made the following order:- This application has been filed seeking to grant leave to file the suit since some of the properties are situated outside the jurisdiction of this Court.

2.It is the contention of the learned counsel for the Applicant/plaintiff that all the suit properties are owned

by one N.Pitchaimani, the father of the plaintiff. The 1st defendant is the wife of N.Pitchaimani, 2nd defendant is the brother of the plaintiff, the 3rd and 4th defendants are the sisters of the plaintiff. Except item Nos.16(1), 17, 19 in Schedule A and 37 in Schedule C and other properties are within the jurisdiction of the Chengalpet Court and the parties, who are arrayed as defendants 1 to 4 are the legal heirs of late N.Ptichaimani. They are also residing within jurisdiction of this Court. Hence, according to the learned counsel for the Applicant, the other properties are situated within the jurisdiction of Chengalpet. Therefore, he is entitled to file a suit before this Court. 3.

The learned counsel appearing for the respondents/defendants submitted that out of 142 items shown as suit properties only 4 items of the suit properties are situated within the jurisdiction of this Court. It is the contention of the learned counsel that the Division Bench of this Court in a judgment reported in 2014(6) CTC 241 has held that the said suit is not maintainable on the ground of convenience. Though, major properties are situated outside the jurisdiction of this Court, the suit ought to have been filed at Chengalpet. Hence, opposed the application.

4.I perused the applications. There is no dispute with regard to relationship to the parties. The plaintiff

and defendants 3-4 are brothers of late N.Pitchaimani, the 1st defendant is the wife and 2nd defendant is the son of late N.Pitchaimani. The suit has been filed for claiming for a share in various items of the suit properties. It is an admitted fact that except four items viz., 16,17 & 19 of Schedule A and Item 37 in Schedule C, other items in the suit properties are situated outside the jurisdiction of this Court and those properties are infact situated within the jurisdiction of this Court i.e., Chennai. Though the properties are situated in the greater Chennai would fall within the jurisdiction of Chengalpet District Court. Similarly four items situate within the jurisdiction of this Court and in the prime area i.e., Thiruvanmiyur. This fact is also not disputed.

Under Clause 12 of the Letters Patent of the Original Side Rules, the cause of action either wholly or partly arising within the jurisdiction of this Court, the suit will be maintainable before this Court. Similarly, even some of the properties are situated within the jurisdiction of this Court, with leave of the Court, the suit can be instituted before this Court. 5.

"13.Admittedly, except Item Nos.4 & 5, remaining 17 items of the Suit properties are situate at Tuticorin and Tirunelveli Districts respectively. It is the submission of the learned Counsel appearing for the Appellant in O.S.A.No.114/2013/Applicant/Plaintiff that since Item Nos.4 &5 are situated at Chennai and as per the Memo of valuation, the said

properties are valued at 27,50,000/- and 50,00,000/- respectively and further that the Respondents 3,4 & 6 are residing just outside the jurisdiction of this Court and that the Second Respondent is also issued with a Family Card with address at Chennai and so also his wife/Fifth Respondent, there cannot be any difficulty or impediment on their part to defend the Suit effectively.

17.In Parameswari Veluchamy and others V.

T.R.Jayaraman and others, 2002(1) CTC 134(DB), the facts of the case would disclose that the Appellant/Plaintiff instituted a Suit for Partition and also contended that the Will as well as the Gift made by their father cannot be geniune. The Defendants in the Suit as also two of the three Plaintiffs reside outside the jurisdiction of the Court and therefore, leave was sought to institute a Suit under Clause 12 of the Letters Patent on the file of the ordinary Original Jurisdiction of this Court. The Plaintiff obtained ex"parte leave and filed the suit and the Defendants had entered appearance and filed Written Statement and applied for revocation of leave by filing Applications and the Applications for Revocation of leaver were ordered.

"20.The suit brought by the plaintiffs though it is in part a Suit for land situated within the jurisdiction of this Court, is primarily a Suit for a share in the properties which are situated outside the jurisdiction of the Court, all the Defendants being residents outside and carrying on business outside the jurisdiction of this Court. The Suit is not similar to one wherein a person entitled to a share in the joint family property can bring a Suit in this Court for a

share in the joint family property by saying that some of the joint family properties are situated within the jurisdiction of this Court.

According to the Plaintiffs own case there is no co-parcenary property.

In the Plaint there is no averment regarding the properties in Madras mentioned in the Plaint Schedule by whom it was acquired, when it was acquired, mode of acquisition, consideration paid there for etc. No document in relation to these properties was filed with the Plaint.

On the other hand the documents produced by the Plaintiffs clearly show that those three items were purchased by some of the Defendants nearly two decades after the demise of their father in whose estate the Plaintiffs claim a share."

20. Even as per the Plaint averments, except Item Nos.4&5 of the Plaint Schedule properties, remaining Sale Deeds are executed at the respective jurisdictional Sub Registrar Offices and moreover the Respondents 1,2 &5 are residing at Kayalpattinam and the Respondents 3,4 & 6 are residing outside the jurisdiction of this Court i.e., on the outskirts of Chennai.

In view of the fact that 17 items of the Suit properties out of 19 item are situated at Tuticorin and Tirunelveli Districts respectively, which are far away from Chennai and the Witnesses, who have spoken about the contents of the document, had knowledge with regard to the oral gift made by the Applicant/Plaintiff, hail from those places, the Applicant/Plaintiff ought to have instituted the Suit either at Tuticorin, where major portion of the Suit properties have instituted the Suit either at Tuticorin, where major portion of the Suit properties are situated. It is to be pointed out at this juncture that the public Notice issued by Plaintiff warning the public not to purchase the properties, she has given her address at Door No.64, Ambala Main Kagar Street, Kayalpattinam.

Even if the Suit is decreed and after passing of Final Decree, further proceedings have to take place at Kayalpattinam and Palaymkottai and on that ground also, the Suit is to be laid there only."

6.Since there is no dispute with the judgment, the Division Bench while confirming the single judgment considered the principle of "forum conveniens", as the major portion of the properties that are situated far away from Chennai i.e., Tuticorin and Thirunelveli District. Considering the distance, the nature of the property and applying the principle of "forum conveniens", the Division Bench had held that the suit cannot be maintainable before this Court.

7.In another Division Bench Judgment of this Court reported in 2011 SCC Online Mad.2073, it has held as follows:

"16.Contending that excepting Schedule-I, all other properties are situated outside the Original Side jurisdiction of Madras High Court and therefore, the suit for partition ought not to have been entertained, the learned counsel for Appellants placed reliance upon 2002(1)CTC 134 (Parameswari Veluchamy V.T.R.Jayaraman). In the said case, suit for partition of properties was filed before the High Court, Madras. Three out of 185 properties situate within Madras. All the Defendants are residing outside Madras.

All the Defendants are residing outside Madras. Plaintiffs obtained leave to sue; but the same was revoked subsequently which came to be challenged before the Division Bench. Observing that all the Defendants are residing outside jurisdiction of the High Court and that the suit properties are not joint family properties and that most of the properties are situated outside the jurisdiction, the Division Bench of this Court held that "revocation of leave is valid and doe not call for interference on appeal". In the case on hand, Plaintiffs 2 and 3 and 1st Appellant-2nd Defendant are residing in Chennai

and therefore, the above said decision is not applicable to the case on hand.

17. Learned counsel for Appellants then contended that where only part of cause of action arose within the territorial jurisdiction of the High Court, on the principle of "forum conveniens", the Court may refuse to entertain the suit. In support of his contention, learned counsel for Appellants place reliance upon 2011-3-LW 376 (Murthy Hosiery Mills, rep. By its Managing Partner, Miller R.T.Murthy V.The State Bank of India, represented by its Chief General Manager, Local Head Office, Chennai-1) (in which one of us was a member -R.Banumathi,J.) In the said case, plaintiffs availed financial facilities from State Bank of India, Tiruppur.

Suit was filed in the Original Side of Madras High Court on the only ground that the head office of State Bank of India is located at Chennai and the the head office granted approval for one time settlement. In those facts and circumstances of the case, Court applied the ratio of the decision in Kusum Ingots & Alloys Ltd. V. Union of India [(2004) 6 SCC 254] and held that integral facts constituting the cause of action arisen only in Tiruppur and on the Principle of "forum conveniens", Court refused to exercise jurisdiction". The ratio of the said decision is not applicable to the case on hand which is a suit for partition where one of the valuable property is situated within the Original Side jurisdiction of Madras High Court."

8.Considering the above judgment, it is very clear that there is no bar for leave the suit in respect of some of the properties situate outside the jurisdiction of this Court after obtaining leave from this Court under Clause 12 of Letters Patent of the Original Side Rules. It is not in dispute, the plaintiff has laid the suit as one of the share holder and the properties according to her belong to her father N.Pitchaimani. She laid a suit on the basis of enabling share of the properties. The defendants 1 to 4,

who are the legal heirs are also very much residing within the jurisdiction of this Court and the defendants 5 to 17 are the tenants residing in Chennai and other defendants are also the tenants, who are also doing their business within the jurisdiction of Chengalpet. Only the main contestants are residing within the jurisdiction of this Court and other properties except Item Nos. 16(1), 17, 19 in Schedule A and 37 in Schedule C are situated within the jurisdiction of the greater Chennai. Though, these above four mentioned properties falls within the original jurisdiction of Chengalpet and the other defendants are merely tenants, I am of the view that the principle of "forum conveniens"cannot be considered in this case. Hence, there is no prejudice caused whatsoever will be to the others.

Since the contesting parties are living within the jurisdiction of this Court and the commercial properties viz., Item Nos. 16 (1), 17, 19 in Schedule A and 37 in Schedule C are situated within the jurisdiction of this Court, leave to sue the suit is granted. Accordingly, this application is allowed. Sd/.N.S.K.J 05.04.2018 //Certified to be a true copy// Dated this the day of 2018.

COURT OFFICER jj 11/04/18 From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.