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CDJ 2026 MHC 2316
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| Court : Before the Madurai Bench of Madras High Court |
| Case No : W.A. (MD) No. 66 of 2026 & C.M.P.(MD) No. 764 of 2026 |
| Judges: THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR & THE HONOURABLE MR. JUSTICE M. JOTHIRAMAN |
| Parties : R. Sethu Versus S. Nallathambi & Others |
| Appearing Advocates : For the Appellant: D. Rajagopal, Advocate. For the Respondents: R1, P. Subbiah, Senior Counsel, P. Jessi Jeeva Priya, R2 to R4, K. Sanjai Gandhi, Govt. Advocate. |
| Date of Judgment : 24-03-2026 |
| Head Note :- |
Letters Patent - Clause 15 -
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| Summary :- |
1. Statutes / Acts / Rules Mentioned:
- Clause 15 of the Letters Patent
2. Catch Words:
possession, writ jurisdiction, second appeal
3. Summary:
The appellant challenged a writ order directing him to hand over possession of property. The Court observed that a second appeal (S.A. (MD) No.1245 of 2011) was pending between the same parties, and therefore the writ petition concerning possession was not maintainable. Any alleged dispossession should be addressed within the pending appeal, not through parallel writ jurisdiction. The Court noted that the appellant’s claim of possession since 2022 requires evidentiary proof. Consequently, the order of the Single Judge in the writ petition was set aside, and the matter was directed back to the pending second appeal for resolution. Directions were issued to list the second appeal promptly, and no costs were awarded.
4. Conclusion:
Appeal Allowed |
| Judgment :- |
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(Prayer: Writ Appeal – filed under Clause 15 of the Letters Patent, against the order passed by this Court in W.P.(Crl)(MD)No.2616 of 2025, dated 16.12.2025.)
Common Judgment
N. Sathish Kumar, J.
1. This Writ Appeal has been filed challenging the order of the Writ Court in W.P.(Crl)(MD)No.2616 of 2025, dated 16.12.2025, directing the appellant to hand over possession to the first respondent.
2. The learned counsel appearing for the appellant would submit that a second appeal in S.A. (MD) No. 1245 of 2011 is pending, and during the pendency of the second appeal, a Writ Petition has also been filed seeking police protection and possession from the appellant.
3. At the outset, we are of the view that when a second appeal is already pending between the parties, entertaining the Writ Petition with regard to possession is not maintainable. Even assuming that any dispossession has occurred during the pendency of the second appeal, the proper remedy for the parties is to file the necessary application immediately in the pending second appeal. Parallel writ jurisdiction cannot be exercised as a matter of right. The mere filing of an affidavit does not justify intervention by the Writ Court. Hence, we are of the view that entertaining the Writ Petition is not maintainable and the order passed therein cannot be sustained in the eye of law.
4. In view of the above, since the Second Appeal in S.A.(MD) No.1245 of 2011 between the parties is pending, any alleged dispossession can be addressed by this Court while deciding the appeal, and restitution may be ordered, if the Court is satisfied. Admittedly, the suit was originally filed for declaration and possession. The appellant now claims to be a subsequent purchaser and having purchased the subject property, during the pendency of the suit, took possession in the year 2022. We are of the view that whether he has been in possession since 2022 is a matter of evidence, as his predecessor in title never asserted that they are in possession of the property. In fact, the suit itself is filed for declaration and recovery of possession. Therefore, the claim of the appellant's possession from 2022 is to be independently established. Hence, the order of the learned Single Judge is liable to be set aside.
5. Accordingly, the order passed in the Writ Petition dated 16.12.2025 is set aside. The parties are relegated to adjudicate their issues in the pending Second Appeal. We request the learned Single Judge, who is holding the roster, to expedite the matter and decide the issues, including any alleged dispossession, taking into account the long pendency of the second appeal and the nature of the criminal cases pending against each of the parties.
6. With the above directions, this Writ Appeal is disposed of. The Registry is directed to list the second appeal before the concerned portfolio judge within a week. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
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