Madras High Court
S.Thirupuram Ammal (Deceased) vs Kamatchi on 9 March, 2021
CRP.PD.No.451 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.451 of 2006
and CMP.No.3895 of 2006
1.S.Thirupuram Ammal (deceased)
2.S.Parameswari
3.D.Pankajavalli
4.D.Periyanayaki
5.D.Saraswathi
6.D.Kotteeswari
7.S.Velayudham (deceased)
8.S.Singaravelan
9.D.Bhuvaneswari
10.Rosi Bai @ R.Revathi
11.Kamika Bai
12.Shansundar
13.Naveen sundar
[Petitioners 2 to 6 and 8 to 10 recorded as LR's of
the deceased 1st petitioner and petitioners 11 to 13
brought on record as LR's of the deceased 7th
petitioner. Vide order of the Court dated 24.01.2013,
made in M.P.Nos.1 to 4 of 2013 in CRP.No.451/2006. ..Petitioners
Vs.
1.Kamatchi
2.Shankaran
3.C.Jawahar
4.Sukuma
5.B.Shanthi
1/18
CRP.PD.No.451 of 2006
6.A.Anbarasu
7.Kanagartinam Ammal
8.Bagyalakshmi
9.Priyanka Jawahar
10.Navin Jawahar
[R7 to R10 brought on record as LR's of the deceased
R3 viz., C.Jawahar vide Court order dated 31.01.2020
made in C.M.P.No.6405/2019 in C.R.P.No.451/206(KRJ)] ..Respondents
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the order of dismissal in I.A.No.14157 of
2002 dated 16.11.2005 in O.S.No.7348 of 1996 on the file of the II Assistant
City Civil Court, Madras.
For Petitioners : Mr. ARL.Sundaresan
for AL.Ganthimathi
For Respondents : Mr.Palaniappan [for R7 to R10]
No Appearance [for R4 to R6]
R1 & R2 – Notice served
ORDER
This Civil Revision Petition has been filed to set aside the order of
dismissal in I.A.No.14157 of 2002 dated 16.11.2005 in O.S.No.7348 of 1996
on the file of the II Assistant City Civil Court, Madras and thereby allow the
application for rejection of plaint.
CRP.PD.No.451 of 2006
2. Mr.ARL.Sundaresan, learned Senior Counsel appearing for the
petitioners submitted that the petitioners 1 to 10 are the defendants in the suit
filed by the respondents 1 to 3 herein for declaration and permanent injunction
in respect of the suit properties.
3. The petitioners' father namely, V.Shanmuga Mudaliar, as plaintiff,
already filed a suit in O.S.No.923 of 1962 as against the mother of the
respondents 1 and 2 in respect of the very same suit property for declaration
and recovery of possession and the same was decreed by judgment dated
03.03.1964. In the said suit, the mother of the respondents 1 and 2 contended
that by virtue of the settlement in her favour, she is the absolute owner of the
property and the same has been rejected and the suit was decreed in favour of
the petitioners' father. Therefore, against the legal heirs of the said Doraivalli
Ammal, the respondents 1 and 2 cannot maintain the present suit that too, in an
order passed in the Execution Petition for delivery of possession in respect of
the suit property. Insofar as the 3rd respondent is concerned, he is only a
pendente lite purchaser in respect of portion of the suit property. In fact he also
filed a petition under Section 47 of CPC in the Execution Petition and the same
was also dismissed by an order dated 26.11.1990. The petitioners also filed a
petition for removal of obstruction as against the 3rd respondent herein and the
CRP.PD.No.451 of 2006
same was allowed by an order dated 11.04.1983 in E.A.No.1796 of 1982. In
fact the respondents 1 and 2 also filed a petition under Section 47 of CPC in the
execution proceedings in E.A.No.5705 of 1990 and the same was dismissed by
an order dated 16.04.1991. Therefore, the present suit is nothing, but clear
abuse of judicial process and it is liable to be rejected.
4. He further submitted that as against the dismissal of the petition under
Section 47 of CPC, the petitioners' father preferred a Civil Revision Petition in
C.R.P.No.86 of 1991 before this Court. This Court, dismissed the Civil
Revision Petition by an order dated 06.03.1991 and held that the property
which was purchased by the 3rd respondent herein pendente lite was the same
subject matter in the earlier suit in which the petitioners' father obtained a
decree and also clearly held that the attempt of the respondents is a gross abuse
of process of Court.
5. He further submitted that in respect of very same property another
C.R.P. was filed before this Court in C.R.P.No.81 of 1991 and this Court found
that the objection of the respondents are untenable and rejected on the ground
that they have no manner of right in respect of the suit property. While being
so, the respondents 1 to 3 have again filed the present suit in respect of very
CRP.PD.No.451 of 2006
same property that too suppressing all the orders passed by the Execution Court
and also suppressed the fact that the possession of the property was already
ordered to be delivered. The respondents averred that the petitioners are taking
advantage of the decree obtained in O.S.No.923 of 1962 and attempting to
dispossess the respondents from the suit schedule property. Therefore, the
entire suit is nothing, but clear abuse of process of law. They are re-litigating
the very same property by way of third round of litigation and it would amount
to abuse of process of law. In support of his contentions, he relied on the
following judgments reported in;
(i) AIR (1977) SCC 2421 [T.ARIVANDANDAM V. T.V.SATYAPAL
AND ANOTHER].
(ii) AIR (1998) SCC 1297 [K.K.MODI Vs. K.N.MODI AND OTHERS].
6. Per contra, the learned counsel for the respondents would submit that
the suit which was filed by the petitioners' father was on a different cause of
action and the present suit has been filed on a different set of cause of action
and as such it is very much maintainable in the eye of law and it cannot be
rejected in limine. Though in respect of the suit property, there were so many
proceedings, the Court below as well as this Court failed to consider the share
of the respondents' mother Doraivalli Ammal, since she is one of the heirs of
CRP.PD.No.451 of 2006
the deceased Manicka Gramani. Admittedly, the sale deed executed by other
legal heirs of Manicka Gramani was in favour of the petitioners' father and the
mother of the respondents 1 and 2 did not execute any sale deed. Therefore, she
is entitled for a share in the suit property. These issues have to be tried before
the trial Court by letting in evidence and it cannot be said to be abuse of
process of law or re-litigating the same issue in respect of suit properties.
7. He further submitted that though the petitioners' father filed a suit for
declaration and recovery of property, he failed to mention the excess of the suit
property which was purchased by him in the suit schedule. Therefore, the
disputed question of fact has to be tried before the trial Court and it cannot be
decided in the petition for rejection of plaint. The petitioners took a specific
plea that the present suit is hit by the principle of res-judicata and on that
ground the plaint cannot be rejected in limine.
8. He further submitted that the present suit has been filed by the
respondents 1 and 2 herein, in respect of share of their mother and these issues
were never touched by the Court below or by this Court, while considering the
application filed under Section 47 of CPC before the Execution Court. In fact
the purchaser of the portion of property filed a suit for injunction in which the
CRP.PD.No.451 of 2006
trial Court dismissed the petition for interim injunction. In the present suit, the
respondents filed OSA as against the dismissal of the injunction petition, in
which this Court observed that any of the observations made by this Court will
not have a bearing on the trial Court to decide the suit. In support of his
contentions, he relied upon the judgments reported in (2018) 5 SCC 544
[RAKESH BIRANI (DEAD) THROUGH LEGAL REPRESENTATIVES Vs.
PREM NARAIN SEHGAL AND ANOTHER] and (2011) 3 MLJ 288
[V.KRISHNAMOORTHY Vs. BALAKRISHNAN AND ANOTHER].
9. Heard Mr.ARL.Sundaresan for AL.Ganthimathi, learned counsel
appearing for the petitioners and Mr.Palaniappan, learned counsel appearing
for the respondents 7 to 10.
10. The petitioners' father purchased the suit property comprised in
S.No.8/2-A, Palayakar Street, Kodambakkam, by a registered sale deed dated
17.12.1960 from the legal heirs of Manicka Garamani namely defendants 1 to 3
in O.S.No.923/1962. When the sale deed was executed, the 4th defendant in the
said suit was not available and later he executed release deed in respect of the
suit property in favour of the petitioners' father. The mother of the respondents
1 and 2 was the 5th defendant in the said suit and she claimed right over the
CRP.PD.No.451 of 2006
suit property based on the oral gift made by her father during his life time some
where in the year 1946. She further contended that therefore, the other brothers
namely defendants 1 to 4 had no title over the property to confer in favour of
the petitioners' father. Since she was given jewels at the time of her marriage in
respect of her share, except her deposition, she had no document to prove that
the suit property was orally gifted to her by her father. The Court below further
found that her mother never was in possession of the suit property and decreed
the suit in favour of the petitioners' father and ordered delivery of vacant
possession. Aggrieved over the same, the mother of the respondents 1 and 2
herein filed an Appeal Suit in A.No.311 of 1964 and the same was also
dismissed by the judgment and decree dated 19.03.1971. Thereafter, she did not
prefer any Second Appeal and the judgment and decree passed by the Court
below became final. In pursuance to the decree, the petitioners' father filed an
execution petition in E.P.No.831 of 1981. Pending execution petition, the
respondents mother filed a petition under Section 47 of CPC in E.A.No.6332 of
1981 and the same was also dismissed by an order dated 12.02.1982. In the
meanwhile, the 3rd respondent herein obstructed the delivery of possession and
as such the petitioners' father filed a petition for removal of obstruction in
E.A.No.1796 of 1982 and the same was allowed by an order dated 11.04.1983.
The obstructer namely the 3rd respondent herein also filed a petition under
CRP.PD.No.451 of 2006
Section 47 CPC in E.A.No.1487 of 1983 and the same was also dismissed on
26.07.1990. Thereafter, the petitioners' father filed a petition for removal of
superstructure, police aid, breaking open the lock and also for amendment to
include the New Door No. for the suit schedule property in E.A.No.479 to 482
of 1984.
11. The 3rd respondent herein filed a suit in O.S.No.786 of 1984 for
permanent injunction restraining the petitioners' father from executing the
decree passed in O.S.No.923 of 1962 on the ground that the property purchased
by the plaintiffs' father is different from the property purchased by the 3rd
respondent from Duraivalli Ammal. Thereafter, the suit was withdrawn after
filing the present suit. Originally, it was filed before this Court in C.S.No.494
of 1991 and thereafter, it was transferred to the file of the City Civil Court,
Chennai in O.S.No.7348 of 1996.
12. The petitioners' father filed I.A.No.14188 of 1986 for appointment of
Surveryor-Commissioner for local Inspection and to identify the property with
the help of surveyor and the same was allowed and aggrieved by the same, the
3rd respondent filed a Civil Revision Petition before this Court. This Court, by
an order dated 22.12.1986 directed the trial Court to appoint a Surveyor-
CRP.PD.No.451 of 2006
Commissioner to survey the suit property and submit a report. The Surveyor-
Commissioner submitted his report stating that the property purchased by the
3rd respondent as well as the suit property are one and the same. In the mean
while, the mother of the respondents 1 and 2 died on 27.02.1988. The
respondents 1 and 2 were impleaded as legal heirs in E.A.No.2755 of 1988 by
an order dated 08.02.1989 in the main Execution Petition. Finally, on
26.11.1990 delivery was ordered in E.P.No.831 of 1981. Thereafter, the
respondents 1 and 2 filed stay of delivery in E.A.No.5705 of 1990 and the same
was ordered. Aggrieved by the same, the petitioners' father filed C.R.P.No.86
of 1991 before this Court and the same was allowed by an order dated
06.03.1991. This Court categorically held as follows:-
“10. Fourthly, on the facts, I have already referred to the
report of the Surveyor-Commissioner filed on 11.03.1988 to the
effect that the subject matter of the suit and the property against
which the execution is proceeded are the same. In view of such
a report, it is not at all necessary for the executing Court to go
through another roving enquiry as to whether the property
proceeded against in execution is different from the property for
which the decree has been passed. There is absolutely no
necessity for the executing Court to issue summons to the
Tahsildar or any other official to bring the records to Court,
which is for the purpose of protracting the proceedings.
CRP.PD.No.451 of 2006
11. Fifthly, the application for amendment of the
description of the property in the execution petition had been
ordered by the executing Court in EA.No.482 of 1984 on
26.11.1990. The judgment-debtor who lived for several years
after the filing of the said application did not choose to oppose
that application. The order was passed only after the legal
representatives of the judgment-debtor came on record and it is
not open to them to ignore the order and file an application
under Section 47 C.P.C.
12. In the circumstances, the Civil Revision Petition is
allowed with costs. Counsel's fee Rs.2,000/-.
13. I am told that the application under Section 47 C.PC.
Viz., E.A.No.5705/90 is posted to 30.04.1991. In this matter, the
decree was passed in the suit in 1964 and affirmed on appeal by
this Court in 1974. The execution petition has been pending
from 1981. There is absolutely no justification for the executing
Court to post a frivolous application under Section 47 C.P.C.,
at the instance of the legal representatives of the judgment-
debtor to practically the last day before the closure of the Court
for summer recess. Hence, I direct the executing Court to
advance the hearing of E.A.No.5705/1990 to 22.03.1991. The
parties and counsel appearing for both parties are given notice
hereby that E.A.No.5705/1990 will be heard by the executing
Court on 22.03.1991 and it is for them to make arrangements to
be present in Court and argue the matter. The executing Court
shall dispose of the said application by passing appropriate
CRP.PD.No.451 of 2006
orders on or before 12.04.1991.”
13. Thereafter, on 11.04.1991 the respondents 1 to 3 herein filed the
present suit in C.S.No.494 of 1991 for declaration in respect of very same
property. Along with the suit they also filed an injunction petition in
O.A.No.348 of 1991. Though initially injunction was granted, subsequently by
order dated 23.10.1991, it was dismissed. Aggrieved by the same, the
respondents 1 to 3 herein filed O.S.A.No.24 of 1992 and the same was also
dismissed by an order dated 24.02.1992. Thereafter, the suit in C.S.No.484 of
1991 was transferred to the file of II Assistant Judge, City Civil Court, Chennai
and re-numbered as O.S.No.7348 of 1996.
14. In view of the dismissal of the injunction petition, possession of the
suit property was taken on 04.11.1991. Thereafter, the EP was terminated after
recording delivery of possession on 27.02.1992.
15. A perusal of the averments made in the present plaint would
revealed that the mother of the respondents 1 and 2 in pursuance to the oral gift
deed by her father had sold an extent of one ground and 1236 sq.ft., in favour
of the 3rd respondent herein. That being so, the suit is filed for declaration in
CRP.PD.No.451 of 2006
respect of A schedule property namely measuring at 2 grounds and 1236 sq.ft.,
comprised in S.No.8/2A at Kodambakam village.
16. The earlier suit filed by the petitioners' father in O.S..No.923 of 1962
was for the property comprised in S.No.8/2A, in Palayakara Street,
Kodambakam, to an extent of 6548 sq.ft. Therefore, both the properties are one
and the same. In fact, this Court already categorically concluded that both the
properties are one and the same and said portion of the order also extracted
above. Further, when the 3rd respondent purchased half of the property from
the total extent of 6545 sq.ft., again the respondents 1 and 2 cannot seek a
declaration in respect of the entire suit property to an extent of 6545 sq.ft.
Further, they put forth that the A schedule property owned by them is
completely distinct property from B schedule property purchased by the
petitioners' father for which he had obtained a decree. The Executing Court had
not applied its mind judicially, but had superficially negatived the plaintiffs'
claim. Therefore, the issues which are raised in the present suit have already
been dealt by the Court below as well as confirmed by this Court in various
orders as stated supra. As such, the present suit is only a re-litigation for the
very same property and it would amount to abuse of process of law. In this
regard, the learned counsel relied upon the following judgments reported in;
CRP.PD.No.451 of 2006
(i) AIR 1977 SCC 2421 [T.ARIVANDANDAM V. T.V.SATYAPAL
AND ANOTHER], the relevant portion reads as under:
“5. We have not the slightest hesitation in condemning
the petitioner for the gross abuse of the process of the court
repeatedly and unrepentently resorted to. From the statement
of the facts found in the judgment of the High Court, it is
perfectly plain that the suit now pending before the First
Munsif's Court, Bangalore, is a flagrant misuse of the mercies
of the law in receiving plaints. The learned Munsif must
remember that if on a meaningful – not formal reading of the
plaint it is manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, he should exercise is power
under O. VII R.11, C.P.C. taking care to see that the ground
mentioned therein is fulfilled. And, if clear drafting has
created the illusion of a cause of action, nip it in the bud at the
first hearing by examining the party searchingly under
O.X.C.P.C. An activist Judge is the answer to irresponsible
law suits. The trial Courts would insist imperatively on
examining the party at the first hearing so that bogus
litigation can be shot down at the earliest stage. The Penal
Code is also resourceful enough to meet such men, (Ch.XI)
and must be triggered against them. In this case, the learned
Judge to his cost realised what George Bernard Shaw
remarked on the assassination of Mahatma Gandhi.
“It is dangerous to be too good.””
CRP.PD.No.451 of 2006
(ii) AIR 1998 SCC 1297 [K.K.MODI Vs. K.N.MODI AND OTHERS],
the relevant portion reads as under:
“44. One of the examples cited as an abuse of the
process of Court is re-litigation. It is an abuse of the process
of the Court and contrary to justice and public policy for a
party to re-litigate the same issue which has already been
tried and decided earlier against him. The re-agitation may or
may not be barred as res judicata. But if the same issue is
sought to be re-agitated, it also amounts to an abuse of the
process of the Court. A proceeding being filed for a collateral
purpose, or a spurious claim being made in litigation may
also in a given set of facts amount to an abuse of the process
of the Court. Frivolous or vexatious proceedings may also
amount to an abuse of the process of Court especially where
the proceedings are absolutely groundless. The Court then has
the power to stop such proceedings summarily and prevent the
time of the public and the Court from being wasted.
Undoubtedly, it is a matter of Courts' discretion whether such
proceedings should be stopped or not; and this discretion has
to be exercised with circumspection. It is a jurisdiction which
should be sparingly exercised, and exercised only in special
cases. The Court should also be satisfied that there is no
chance of the suit succeeding.”
CRP.PD.No.451 of 2006
17. The Hon'ble Supreme Court of India held that if on a meaningful and
not formal reading of the plaint it is manifestly vexatious and meritless in the
sense of not disclosing a clear right to sue, the Court should exercise the power
under Order 7 Rule 11 of the CPC taking care to see that the ground mentioned
therein is fulfilled. If clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first hearing by examining the party
searchingly under Order 10 of CPC.
18. It is an abuse of process of Court and contradict and justice public
policy for a party to relitigate the same issue which has already been tried and
decide earlier against him. If the same issue is sought to be relitigated its
amounts to abuse of process of Court. The above judgments are squarely
applicable to the present case on hand. As stated supra, the present suit has
been filed in respect of the very same property and for re-litigating the very
same issues which were already dealt by the Court below. Therefore, the
present suit is nothing, but clear abuse of process of law and it cannot be
sustained as against the petitioners and liable to be rejected.
19. In view of the above discussion, I.A.No.14157 of 2002 dated
16.11.2005 in O.S.No.7348 of 1996 on the file of the II Assistant City Civil
CRP.PD.No.451 of 2006
Court, Madras, is set aside. The Civil Revision Petition is allowed. The plaint
in O.S.No.7348 of 1996 on the file of the II Assistant City Civil Court, Madras,
is hereby struck off. No order as to costs. Consequently, connected
miscellaneous petition is closed.
09.03.2021
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
bri
To
The II Assistant,
City Civil Court,
Chennai.
CRP.PD.No.451 of 2006
G.K.ILANTHIRAIYAN,J.
bri
CRP.PD.No.451 of 2006
and CMP.No.3895 of 2006
09.03.2021
