Madras High Court
Natarajan vs Manickam on 12 July, 2021
S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.07.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.509 of 2021
&
C.M.P.No.10168 of 2021
1. Natarajan
2. Malliga (Died)
3. N.Rekha
4. N.Ramesh
5. N.Prakash .. Appellants
Vs.
Manickam .. Respondent
(appellants 3 to 5 brought on record as LRs of the deceased /A2 viz Malliga
vide Court order dt 02.07.2021 made in C.M.P.No.3739 of 2021 in S.A (SR)
No.66736 of 2020 (filing stage)
Second Appeal filed under Section 100 of the Code of Civil Procedure,
1908 to set aside the judgment and decree dated 20.12.2019 passed in
A.S.No.36 of 2017 on the file of the Subordinate Court, Mettur reversing the
judgment and decree dated 14.03.2017 passed in O.S.No.143 of 2013 on the
file of the District Munsif Court, Mettur.
1/12
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
For Appellants : Mr.P.Jagadeesan
For Respondent : Mr.A.Rajesh Kanna
JUDGMENT
Three cents of land and a three feet wide passage running to a length
of about 50 feet or thereabouts constitute the nucleus of the 18 year old lis
that has led to the captioned second appeal.
2. Be that as it may, the first appellant in the captioned second appeal
and his spouse Malliga (to be noted, second plaintiff Malliga died pending
captioned second appeal and appellants 3 to 5 were brought on record as her
legal heirs), presented a plaint on 13.08.2003. Therefore, the 'appellants' in
this second appeal court shall be referred to as 'plaintiffs' in this judgment for
the sake of convenience and clarity. This plaint presented by plaintiffs on
13.08.2003 was taken on file as O.S.No.143 of 2003 on the file of 'District
Munsif's Court, Mettur' ('trial Court' for the sake of brevity).
3. Lone respondent in this second appeal Court is the lone defendant in
the trial Court and from hereon and henceforth 'respondent' in captioned
second appeal shall be referred to as 'defendant' in this judgment for the sake
of convenience and clarity.
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S.A.No.509 of 2021 &
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4. The aforementioned suit filed by the plaintiffs 18 years ago was a
simple suit for bare injunction to protect the possession of plaintiffs qua
aforementioned 'three cents of land and three feet wide passage running to a
length of about 50 feet or thereabouts in Ammani Veerakkal Pudur Village
within Mettur sub-registration District and Salem Registration District'
(hereinafter 'suit property' for the sake of convenience).
5. Defendant on being served with suit summons entered appearance
through a counsel and filed a written statement dated 06.10.2003 which was
met with a reply statement by the plaintiff dated 03.10.2007. Thereafter, an
additional written statement dated 16.02.2010 was filed by the defendant.
The pleadings having been thus completed, the parties went to trial on the
issues framed by the trial Court. In the interregnum i.e., after filing of the
written statement and before the reply statement, a comprehensive suit qua
property including the same suit property inter alia with prayers for
declaration of title, permanent injunction and mandatory injunction was filed
by defendant and this suit is O.S.No.103 of 2006. This Court is also
informed that joint trial of the two suits i.e., aforementioned O.S.No.143 of
2003 and O.S.No.103 of 2006 was ordered by the trial Court, but the joint
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
trial got derailed. It is not necessary to delve into who is responsible for the
derailment of the joint trial, suffice to say that O.S.No.143 of 2003 being a
bare injunction suit proceeded independent of the subsequent title suit and it
culminated in a judgment and decree dated 14.03.2017 which was made after
full contest. This judgment and decree is to the effect that there shall be a
decree for bare injunction subject to the outcome of subsequent title suit
O.S.No.103 of 2006. For the purpose of clarity, this Court deems it
appropriate to extract and reproduce the decree:
',d;W ,e;ej
P pkd;wk; fPHf
; z;lthW
jPh;g;ghizapLfpwJ/
1/ ,e;j tHf;F mDkjpf;fg;gLfpwJ/
2. m/t/vz; 103-2006 d; Kot[fF
; l;gl;L.
jhth brhj;jpy; gpujpthjpnah. mtuJ Ml;fnsh
fl;olk; vJt[k; fl;lf; TlhJ vd epue;ju
jila[Wj;Jf;fl;lis ghpfhuk; gpwg;gpf;fg;gl;L
jPh;g;ghizaplg;gLfpwJ/
3/ tHf;fpd; R{H;epiyia fUjp mtutu;
brytj; bjhifis mtutnu Vw;Wf; bfhs;s
cj;jutplg;gLfpwJ/ '
6. The defendant carried the matter in appeal by way of a regular first
appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
the sake of brevity) vide A.S.No.36 of 2017 on the file of 'Subordinate
Judge's Court, Mettur' (hereinafter 'first Appellate Court' for the sake of
convenience and clarity). First Appellate Court, after full contest, vide
judgment and decree dated 20.12.2019 allowed the defendant's appeal and
the consequence is, the plaintiffs' were non-suited. The non-suited plaintiffs
are in appeal in this second appeal Court.
7. Mr.Rajesh Kanna, learned counsel who had filed vakalatnama and
represented the defendant at the 'Condonation of Delay' ('COD' for the sake
of brevity) stage and at the stage of bringing on record the legal heirs of
deceased second appellant, is also before this Court as his name is shown in
the cause list on the basis of vakalatnama in the COD application. In the
aforesaid setting, learned counsel for defendant submitted that he has
instructions to accept notice on behalf of defendant in captioned second
appeal if it is admitted.
8. Mr.P.Jagadeesan, learned counsel for appellants (plaintiffs) is before
this Virtual Court. On this Court being inclined to admit the captioned
second appeal learned counsel for defendant accepted notice and both the
learned counsel agreed for disposal of captioned second appeal by a simple
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
judgment as both learned counsel did not have any disputation or
disagreement that O.S.No.143 of 2003 (bare injunction suit) and O.S.No.103
of 2006 (title suit) have to be tried together as it is between the same parties
and includes the suit property in the bare injunction suit. This Court is
informed that plaint schedule property in the subsequent title suit is larger
but there is no disputation that it includes the suit property in the bare
injunction suit i.e., aforementioned three cents together with three feet wide
passage running to a length of about 50 feet or thereabouts. Therefore, the
entire lis can be comprehensively adjudicated upon and decided if a joint
trial is ordered.
9. Notwithstanding very many averments, very many grounds and
questions that have been proposed as substantial questions of law, with the
consent of learned counsel on both sides the following substantial question
of law is formulated:
' Owing to possible anomalies and conflict of judicial
decisions whether a trial Court sever two suits, one for bare
injunction and other a title suit when suit property in bare
injunction suit forms part of suit property in title suit and decide
the bare injunction separately after ordering joint trial and if
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
answer is not in the affirmative, can the first Appellate Court
decide the matter on merits without sending the matter back to
trial Court for joint trial?
10.In the light of narrative thus far, answer to the aforementioned
substantial question of law is clear as daylight more so as it is the stated
position of both sides that there should have been a joint trial and the legal
position also pointing towards eliminating possible anomalies or possible
conflict of judicial decisions. It would be appropriate to have a joint trial
rather than sever the matter and pass decrees in the bare injunction suit
saying it is subject to the outcome of title suit and thereafter testing this
decree on appeal on merits and reversing the same. As the answer to the
aforesaid substantial question of law flows from the common stated position
of the parties, it follows as a sequitur that the first Appellate Court also
should have sent the matter back to the trial Court rather than embarking
upon the exercise of deciding the matter on merits and non-suiting the
plaintiffs. Considering that the Hon'ble Supreme Court in Kanailal principle
[Kanailal and Others Vs. Ram Chandra Singh and Others reported in
(2018) 13 SCC 715] has telescoped Order XLI Rule 31 of CPC mandate in a
legal drill in second appeal also, suffice to say that the lone point for
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
determination in the captioned second appeal is answering aforesaid
substantial question of law and the same has been done supra. This Court is
informed that the title suit is listed in the trial Court tomorrow i.e.,
13.07.2021 and trial has not commenced i.e., examination of plaintiffs'
witness has not commenced.
11. Therefore, captioned second appeal and CMP are disposed of by
the following consent order:
a) the judgments and decrees of the first Appellate
Court and trial Court being judgment and decree dated
20.12.2019 in A.S.No.36 of 2017 and judgment and decree
dated 14.03.2017 made in O.S.No.143 of 2003 are set aside;
b) the judgments and decrees of the trial Court and
first Appellate Court are set aside owing to joint trial being
imperative and not on merits of the matter. In other words,
joint trial will proceed in trial Court on its own merits and
in accordance with law uninfluenced and untrammelled by
this judgment.
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S.A.No.509 of 2021 &
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c) As a sequitur to the previous point, trial Court shall
now take up the two suits i.e., O.S.No.143 of 2003 (bare
injunction suit) and O.S.No.103 of 2006 (title suit) together
for joint trial, adjudicate upon the same and make a common
judgment / decree in both the suits as expeditiously as
possible as its regular business would permit and in any
event on or before 29.04.2022.
12. The above approach and time frame is based on the principle laid
down by Hon'ble Supreme Court in a recently rendered judgment i.e., Nazir
Mohamed case [Nazir Mohamed Vs. J.Kamala reported in 2020 SCC OnLine SC
676] that the paramount overall consideration in a second appeal is the need
for striking a judicious balance between the indispensable obligation to do
justice at all stages and the impelling necessity of avoiding prolongation in
the life of any lis. The age of the lis (18 years) and stage in trial Court
(pleadings being complete and suits being ripe for trial) have also been taken
into account as determinants in fixing the aforementioned timeline.
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
13. Though obvious it is made clear that all questions are left open, all
the rights and contentions of both parties are left open and the trial court, in
the aforementioned joint trial, shall adjudicate upon the matter on its own
merits and in accordance with law uninfluenced by any observation made in
this judgment with exception of aforementioned directives to trial Court.
14. To balance the rights of the parties, both parties shall maintain
status-quo as on 14.03.2021 (date of trial Court decree) qua the suit property
in O.S.No.143 of 2003 for a period of 16 weeks from today i.e., till
04.10.2021. It is open to the plaintiffs to take out an interlocutory
application qua injunction qua possession regarding suit property in
O.S.No.143 of 2003 and this interlocutory application shall also be decided
by the trial Court on its own merits and in accordance with law uninfluenced
by and untrammelled by observations in this judgment. Consequently,
connected miscellaneous petition is closed. No costs.
12.07.2021
Speaking order: Yes/No
Index: Yes/No
gpa
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S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
To
1. The Subordinate Court
Mettur
2. The District Munsif Court
Mettur..
https://www.mhc.tn.gov.in/judis/
S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
M.SUNDAR.J.,
gpa
S.A.No.509 of 2021 &
C.M.P.No.10168 of 2019
12.07.2021
https://www.mhc.tn.gov.in/judis/
