Madras High Court
Vincent vs John on 29 July, 2021
S.A.(MD)No.401 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.401 of 2014
and
M.P.(MD)No.1 of 2014
Vincent ... Appellant
Vs.
1.John
2.David ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.7 of 2000, dated 28.01.2003
on the file of the Sub Court, Ambasamudram confirming the judgment and
decree passed in O.S.No.398 of 1991, dated 14.12.1998, on the file of the
District Munsif Court, Ambasamudram.
For Appellant : Mr.V.Meenakshmisundaram
For Mr.D.Nallathambi
For Respondents : Mr.R.T.Arivu Kumar for R1
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S.A.(MD)No.401 of 2014
JUDGEMENT
The third defendant in O.S.No.398 of 1991 on the file of the learned
Additional District Munsif Court, Ambasamudram, is the appellant in this
second appeal. The suit was filed by the first respondent seeking the relief of
partition. The plaintiff as well as defendants are brothers, being sons of
Michael and Mary Grace Ammal. The suit schedule comprises three items
namely., "A", "B" and "C". It appears that contest was essentially around "A"
schedule, which appears to be a small shopping complex. The father/Michael
as well as mother/Mary Grace Ammal have passed away. Both of them died
intestate. The first respondent here had originally filed a partition suit in
respect of the said property. But the said suit had either been dismissed for
default or withdrawn. In the said suit, the mother was also party and that she
had taken a stand that the building was purchased by her out of her own funds.
Be that as it may, that issue has become academic on account of her dying
intestate. Therefore, the property had devolved on all the three sons in equal
share. Of course, the appellant herein had raised a plea that the property was
allotted to him by the mother in a oral arrangement.
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S.A.(MD)No.401 of 2014
2.The plaintiff examined himself as P.W.1 and marked Exs.A1 to A9.
The appellant himself as D.W.1 along two other witnesses and marked Exs.B1
to B17.
3.The learned trial judge after a consideration of the evidence on record
granted preliminary decree in respect of the "A" schedule and "C" schedule.
"B" schedule relates to cultivating tenancy right and the suit was dismissed as
regards "B" schedule. The plaintiff had not filed any appeal challenging the
dismissal of the suit as regards "B" schedule. It was only the appellant herein,
who filed A.S.No.7 of 2000, before the learned Sub Court, Ambasamudram.
Vide impugned judgment and decree 28.01.2003, the first appellate court
confirmed the decision of the trial court. Challenging the same, the second
appeal came to be filed.
4.The second appeal was admitted on the following substantial questions
of law:-
“1) Whether the Courts below have committed wrong in
holding that the suit is not barred by resjudicata, since the earlier
suit in O.S.No.328 of 1989 was dismissed for non-prosecution and
order 9 Rule 9 debars the plaintiff to file fresh suit when the
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S.A.(MD)No.401 of 2014
earlier suit was dismissed for non-prosecution and hence the
judgments of the Courts below are liable to be set aside by this
Court under Section 100 of CPC?
2) When the plaintiff willfully suppressed the fact that the
eariler suit in O.S.No.328 of 1989 was dismissed for default and
made a wrong statement that the same was withdrawn, is it not
amount to abuse of process of Court and is it not a ground for
dismissal of the suit and hence, the judgments of the Courts below
warrant interference by this Court under Section 100 of CPC?”
5.Heard the learned counsel on either side.
6.It is true that the plaintiff had earlier filed O.S.No.328 of 1989 but the
same had suffered a dismissal for non-prosecution. The question is whether
Order 9 Rule 9 of CPC will preclude the plaintiff from instituting a second suit
for partition. But Order 9 Rule 9 of CPC will not apply to partition suits. The
learned counsel for the respondent brought to my notice the decision of the
Madras High Court reported in 2017 (1) CTC 374 (Maria Francis and Ors.
Vs. M. Varghese and Ors.). The said decision is clearly applicable to the case
on hand. The first substantial question of law is answered against the
appellant.
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S.A.(MD)No.401 of 2014
7.The case of the plaintiff was that "A" schedule property also belonged
to father/Michael. But then, in O.S.No.328 of 1989 the stand was that "A"
schedule property belonged to mother/Mary Grace Ammal. Even if the
property was purchased by the mother out of her funds, still on account of
dying intestate, the property will devolve in equal shares on all the three sons.
The second suit for partition is based on a distinct cause of action. Therefore,
failure to mention the dismissal of the earlier suit cannot result in non-suiting
the plaintiff at the threshold. The second substantial question of law is also
answered against the appeal. I do not find any merit in this second appeal and
it stands dismissed.
8.At this stage, the learned counsel appearing for the appellant informs
the Court that the mother even during her life him had mortgaged the suit
property as evident from Ex.B1 and that the appellant redeemed the same vide
Ex.B2. Since the appellant had proved that it was he who redeemed "A"
schedule property, he will be entitled to appropriate equities when the final
decree is passed. No costs. Consequently, connected miscellaneous petition is
closed.
29.07.2021
Index : Yes / No
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.401 of 2014
Internet : Yes/ No
ias
G.R.SWAMINATHAN, J.
ias
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.
To:
1.The Sub Court,
Ambasamudram.
2.The District Munsif Court,
Ambasamudram.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.401 of 2014
29.07.2021
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S.A.(MD)No.401 of 2014
https://www.mhc.tn.gov.in/judis/
