Madras High Court
P.Noordeen vs Subaitha Beevi on 4 February, 2021
CRP(MD)No.21 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.21 of 2021
and
CMP(MD).No.253 of 2021
P.Noordeen ....Petitioner/Petitioner/ Defendant
vs.
1.Subaitha Beevi
2.Peer Mohammed Dharvesh Meeran
3.Mohammed Faizal
(Respondent No.3 is represented by
his power of attorney the
1st respondent herein) ....Respondents/Respondents/ Plaintiffs
PRAYER: Petition filed under Article 227 of Constitution of India, to set
aside the order dated 22.11.2019 made in I.A.No.352 of 2018 in O.S.No.
80 of 2014 on the file of the Ist Additional Sub Court, Nagercoil, and
allow this Civil Revision Petition.
For Petitioner : Mr.R.Vijayakumar
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1/6
CRP(MD)No.21 of 2021
ORDER
This Civil Revision Petition has been filed to set aside the order
dated 22.11.2019 made in I.A.No.352 of 2018 in O.S.No.80 of 2014 on
the file of the I Additional Sub Court, Nagercoil.
2.The learned counsel for the petitioner would state that the
respondents/plaintiffs filed the above suit in O.S.No.80 of 2014 for the
relief of declaration of title and recovery of possession. The petitioner
would contend that the respondents as plaintiffs filed an earlier suit in
O.S.No.386 of 2009. The cause of action for the above suit arose on
21.03.2006 when the gift deed executed in the name of the 1 st plaintiff's
husband was cancelled on 21.03.2006 by the mother of the petitioner
herein. The suit in O.S.No.386 of 2009 came to be dismissed for default
on 07.03.2012. This revision petitioner who is the defendant in the
earlier suit filed a detailed written statement contending that the alleged
gift deed dated 09.05.1980 was never acted upon as the possession was
never handed over by Smt.Pathummal in favour of her son namely,
Sulaiman, but it was retained and the gift deed was also subsequently
cancelled on the ground that the said Sulaiman had not taken care of her.
Thereafter, the said Smt.Pathummal executed a registered mortgage deed
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CRP(MD)No.21 of 2021
in favour of one S.M.Sifly and after the death of Smt.Pathummal, the
mortgage deed was also redeemed by the other brothers and sisters on
23.02.2009. Even the 1st plaintiff's husband did not contribute for the
said redemption of the mortgage, but has filed the present suit in O.S.No.
80 of 2014. He would further state that the parties and suit property in
both the suits are one and the same and therefore, the petitioner has filed
I.A.No.352 of 2018 to reject the plaint on the ground that the present suit
is barred under Order 9 Rule 9 CPC and also barred under Order 2 Rule 2
CPC, but without considering the same, the learned Judge has dismissed
the above application, against which, the present revision petition has
been filed.
3.The learned counsel for the petitioner would state that the Court
below has failed to see that without restoring the earlier suit, the present
suit filed for declaration of title and recovery of possession is not
maintainable and the cause of action in both the suits are one and the
same and therefore, the present suit is barred under Order 9 Rule 9 CPC.
He would further state that the Court below without considering the fact
that the petitioner has filed written statement in the earlier suit disputing
the title of the respondents, has held that there is no bar for filing the
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CRP(MD)No.21 of 2021
present suit. Thus, he would pray for setting aside the order of the Court
below.
4.Heard the learned counsel for the petitioner. In view of the order
going to be passed, notice to the respondents is not necessary.
5.Perusal of record shows that the second suit namely, O.S.No.80
of 2014 has been filed on 12.03.2014 and written statement has been
filed on 27.08.2014. Perusal of record further shows that the suit is
comprehensive in nature and the plaintiffs have filed the suit for
declaration of title and for recovery of possession and the earlier suit was
filed only for permanent injunction but the present suit has been filed for
declaration and recovery of possession.
6.Though both the suit properties are one and the same, the earlier
suit has been filed for permanent injunction and the present suit has been
filed for declaration and recovery of possession and the cause of action
for filing the second suit cannot be said to be one and the same. As per
the judgment reported in (1965) AIR (SC) 295, Suraj Ratan Thirani and
others vs. The Azamabad Tea Co., and others), a cause of action is a
bundle of facts on the basis of which relief is claimed. If in addition to
the facts alleged in the first suit, further facts are alleged and relief
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CRP(MD)No.21 of 2021
sought on their basis also, and he explained the additional facts to be the
allegations about possession and dispossession in October 1934, then the
position in law was that the entire complexion of the suit is changed with
the result that the words of O.IX. R.9 ''in respect of the same cause of
action'' are not satisfied and the plaintiff is entitled to reagitate the entire
cause of action in the second suit and therefore, in my opinion, by
applying the principles enumerated in the above judgment, I do not find
any infirmity in the order passed by the learned Judge.
7.Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No
Internet : Yes / No 04.02.2021
Note: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
J.NISHA BANU, J.
bala/msa
To
1.The I Additional Sub Judge,
Nagercoil.
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CRP(MD)No.21 of 2021
2.The Section Officer,
E.R.Section/V.R.Section,
Madurai Bench of Madras High Court, Madurai.
ORDER MADE IN
CRP(MD)No.21 of 2021
DATED : 04.02.2021
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