THE HONOURABLE MR v. Saraswathi2.K.Mohanarangan3.K.Kothandapani4.S.Thanikachalam5.Santhi6.Jeyanthi7.Karthikeyan8.Sankari9.Santha Lakshmi10.P.Subash Chand Jain

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 05-11-2007CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIC.R.P.(PD)No.2647 of 2007 &M.P.No.1 of 2007 1.D.Saroja2.D.Ravikumar3.D.Kumar @ Sivakumar4.D.Prabakaran5.D.Ramesh6.D.Murali . . Petitioners/PlaintiffsVs.1.Saraswathi2.K.Mohanarangan3.K.Kothandapani4.S.Thanikachalam5.Santhi6.Jeyanthi7.Karthikeyan8.Sankari9.Santha Lakshmi10.P.Subash Chand Jain . . Respondents/DefendantsThe civil revision petition is filed to set aside the orderdated 04.07.2007 passed in I.A.No.40 of 2007 in O.S.No.5399 of 2003passed by the Additional District Judge, V Fast Track Court, Chennai.For Petitioners : Mr.S.PonnarasiFor Respondents : Mr.N.Jayabalan for R10 ORDERThe plaintiffs in the suit have filed the present revisionpetition under Article 227 of the Constitution of India against theorder of the learned trial Judge in rejecting the application filedby the plaintiffs in I.A.No.40 of 2007 under Section 10 CPC to stayall the further proceedings in O.S.No.5399 of 2003 until the disposalof the Application Nos.150 and 151 of 2006 in T.O.S.No.44 of 1994pending before this Court. https://hcservices.ecourts.gov.in/hcservices/

2. Heard the learned counsel appearing for the petitioners aswell as the learned counsel appearing for the tenth respondent, whois the purchaser from respondents 1 to 9. It is seen that inI.A.No.40 of 2007 respondents 1 to 9 have remained exparte and thetrial Court has rejected the said application. It is the case of theplaintiffs that the the respondents 1 to 9 are the their relativeswho sold the suit property based on the order of Probate passed bythis Court on 19.11.1999 with regard to the alleged Will dated30.04.1971 said to have been executed by the petitioner's grandfathernamely M.Subramania Pillai. It is the further case of thepetitioners that the said probate has been got by forging thesignature of the first petitioner as if she had signed in consentaffidavit in the probate proceedings to which she is not a party. Theprobate was converted in to a Testamentary Original Suit onobjections by one of the sisters namely S.Vasantha who has raisedobjections about the signature in the consent affidavit which wasobtained by way of force. 3. It is seen that after converting as Testamentary OriginalSuit, this Court has passed a judgment dated 09.11.1999 whereinthis Court has elaborately dealt with the Will as well as the case ofthe said Vasantha that her signature was not obtained by force andcome to a conclusion that the execution of the Will has been properlyproved and in view of the same, TOS was allowed. 4. The case of the first plaintiff is that she came to knowabout the forgery of the signature in the consent affidavit only nowand hence she files the application Nos.150 & 151 of 2007 inT.O.S.No.44 of 1994 for setting aside the judgment passed therein andthe plaintiffs have filed the O.S.No.5399 of 2003 for a declarationand permanent injunction in respect of the suit property. 5. The question to be decided is as to whether the pendency ofthe application in I.A.Nos.150 and 151 of 2007 in this Court to setaside the judgment in T.O.S.No.44 of 1994 will be a ground to staythe suit which is pending in O.S.No.5399 of 2003 before the Courtbelow. The learned trial Judge has dismissed the application on thebasis that Section 10 CPC which contemplates that no court shallproceed with the trial of any suit in which the matter in issue isalso directly and substantially in issue in a previously institutedsuit between the same parties, or between parties under whom they orany of the claim litigating under the same title, where such suit ispending in the same or in any other Court in India havingjurisdiction to grant relief claimed. Admittedly, the applicationsfiled by the revision petitioners before this Court is of the year2007, merely because the tenth respondent has purchased properties https://hcservices.ecourts.gov.in/hcservices/ from the respondents 1 to 9 who have taken part in the TOS, is not aground for the purpose of the staying the proceedings. As rightlypointed out by the learned trial Judge Section 10 CPC has noapplication since the suit filed is not a later suit. Further it isseen that the suit is allowed not only on the basis that the firstpetitioner's signature has not been forged in the consent affidavitin the original proceedings but also on the basis that the plaintiffshave perfected the title by adverse possession. 6. As rightly pointed out by the learned counsel appearing forthe tenth respondent, the Honourable Supreme Court has held in INDIANBANK v. M.S.CO-OP MARKETING FEDN. LTD., (AIR 1998 SCC 1952) that theword 'trial' in Section 10 in the context of a summary suit, cannotbe interpreted to mean the entire proceedings starting withinstitution of the suit by lodging a plaint. In a summary suit the'trial' really begins after the Court or the Judge grants leave tothe defendant to contest the suit. Therefore, the Court or the Judgedealing with the summary suit can proceed up to the state of hearingthe summons for judgment and passing the judgment in favour of theplaintiff (a) the defendant has not applied for leave to defend or ifsuch application has been made and refused or if (b) the defendantwho is permitted to defend fails to comply with the conditions onwhich leave to defend is granted. The Honourable Supreme Court hasfurther held that the course of action which the Court has to followaccording to Section 10 CPC is not to proceed with the 'trial' of thesuit but that does not mean that it cannot deal with the subsequentsuit any more or for any other purpose. In view of the object andnature of the provision and the fairly settled legal position withrespect to passing of interlocutory orders it has to be stated thatthe word 'trial in Section 10 CPC is not used in its widest sense. Byapplying the said dictum laid down by the Honourable Supreme Court,the court below has rightly dismissed the application, I do not seeany irregularity or illegality in the order of rejecting theapplication filed by the plaintiffs under Section 10 CPC. Hence therevision fails and the same is dismissed. However, the learnedcounsel appearing for the petitioners has brought to the notice thatthe learned trial Judge while dismissing the application has awardedcosts. The learned counsel appearing for the tenth respondent wouldfairly submit that he is not insisting the same. In view of the same,the portion in respect of awarding the costs alone is set aside. Itis made clear that the observation made in this revision shall not betaken in to consideration by the trial Judge while deciding the issue https://hcservices.ecourts.gov.in/hcservices/ and the learned trial Judge is directed to dispose of the caseindependently on merits and in accordance with law. Consequently,connected miscellaneous petition is closed. No costs.05.11.2007jikrSd/-Asst. Registrar./true copy/Sub Asst. Registrar.TO1.The Additional District Judge(Fast Track Court),Chennai.1 cc to Mr.N.Jayabalan, Advocate, SR.666581 cc to Mrs.S.Ponnarasi, Advocate, SR.66184nsm (co)dv/23.1.C.R.P.(PD)No.2647 of 2007