C.R.P.No.4434 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.12.2023

CORAM:

THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI

C.R.P.No.4434 of 2023

and

C.M.P.No.26796 of 2023

V.Sundaramoorthy

...

Petitioner

-Vs-

1.K.V.Mohankumar

2.Vasanthi

3.N.Nareshkumar

4.N.Nandakumar

5.N.Vanathi

6.N.Vidya

... Respondents

Prayer : Civil Revision Petition is filed under Article 227 of the

Constitution of India, praying to set aside the fair and final order dated

13.10.2023 passed by the learned Additional District Judge (Fast Track

Court), Mettur in I.A. No.331 of 2010 in O.S.No.265 of 2008.

For Petitioner

: Mr.L.Mouli

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C.R.P.No.4434 of 2023

ORDER

Challenging the impugned order passed in I.A.No.331 of 2016 in

O.S.No.265 of 2008 passed by the learned Addl. District Judge (Fast Track

Court), Mettur, the Revision Petitioner/1^st defendant preferred this Civil

Revision Petition.

2. Since the relief is claimed challenging the order passed by the trial

judge, notice to the respondents is dispensed with.

3. Before the trial court, the 1^st respondent/plaintiff filed a suit in

O.S.No. 265 of 2008 against the defendants 1 to 6 for the relief of partition

claiming half share in the suit property. The Revision Petitioner is the 1^st

defendant in the suit. He filed his written statement and now the case is

riped for trial. At this stage, the Revision Petitioner filed an application to

reject the plaint stating that at the earlier occasion, the deceased

A.V.Nagaraj, his brother filed a suit in O.S.No. 173 of 1996 and

subsequently the suit was transferred to Sub-Court, Mettur, thereby

renumbered as O.S.No. 666 of 1999. Thereafter, the suit was dismissed for

default in the year of 2000. Furthermore, already the properties were

partitioned by orally in the year of 1996. Therefore, the present suit as

such is not maintainable. Suppressing the oral partition, the 1^st

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C.R.P.No.4434 of 2023

respondent/plaintiff filed the present suit as such there is no cause of

action. Hence, he prayed to reject the plaint. The 1^st respondent/plaintiff

raised objections stating that no such oral partition was happened. The

earlier suit was also dismissed for default. Notice was issued in the year of

2008 and so, there is a cause of action to file a suit. Accordingly, he prayed

to dismiss the application. Considering both side submissions, the trial

judge dismissed the application holding that the share and right of parties

can be decided only after considering the evidence and it cannot be rejected

without conducting the trial. Challenging the said findings, the revision

petitioner/1^st defendant preferred this Civil Revision Petition.

4. The learned counsel for Revision Petitioner would submit that the

trial judge failed to take note of the fact that already oral partition was

happened and the earlier suit filed by the brother was also dismissed for

default, since because already partition was happened. But, the trial judge

failed to consider the same. Hence, he prayed to set aside the findings of

trial judge.

5. Records perused. On considering the entire facts, it reveals that

now the suit is riped for trial and all these days, the defendants also

contested the case stating that there was a oral partition, but without

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C.R.P.No.4434 of 2023

evidence, it cannot be held that there was a oral partition. Moreover, the 1^st

respondent/plaintiff also denied the oral partition. Therefore, the defence

taken by the Revision Petitioner needs sufficient evidence. So, the present

suit filed by the 1^st respondent/plaintiff as such is maintainable and the

findings rendered by the trial judge needs no interference. Accordingly, this

Civil R