Madras High Court
Lakshmanan vs Vikramadithan @ Senkottaiyan on 23 November, 2021
C.R.P.(PD).No.3589 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.3589 of 2016
and C.M.P.No.18292 of 2016
1.Lakshmanan
2.Thangayee
3.Srinivasan
4.Gunasekaran .. Petitioners
Vs.
Vikramadithan @ Senkottaiyan .. Respondent
Prayer: This Civil Revision Petition is filed under Article 227 of
Constitution of India, against the fair and decreetal order dated 06.06.2016
made in I.A.No.279 of 2013 in O.S.No.321 of 2012 on the file of the District
Munsif Court, Sankari.
For Petitioners : Mr.G.Vinoth for
Mr.N.Umapathi
For Respondent : Mr.R.Ezhilarasan
1/9
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.3589 of 2016
ORDER
This Civil Revision Petition is filed against the fair and decreetal order
dated 06.06.2016 made in I.A.No.279 of 2013 in O.S.No.321 of 2012 on the
file of the District Munsif Court, Sankari.
2.The petitioners are the defendants and respondent is the plaintiff in
O.S.No.321 of 2012 on the file of the District Munsif Court, Sankari. The
respondent has filed the said suit for permanent injunction restraining the
petitioners from interfering with his peaceful possession and enjoyment of the
suit properties except due process of law. In the said suit, the petitioners have
filed I.A.No.279 of 2013 under Order VII Rule 11 and Section 151 of CPC,
to reject the plaint on the ground that the present suit is hit by principles of
res-judicata and abuse of process of Court. According to the petitioners, they
have filed O.S.No.215 of 1998, on the file of the District Munsif Court,
Sankari, against the respondent and four others in respect of the suit
properties and other properties, seeking relief of permanent injunction and the
said suit was decreed by the judgment and decree dated 21.01.2003. The said
decree is still in force and therefore, the present suit is not maintainable and
prayed for rejection of plaint.
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C.R.P.(PD).No.3589 of 2016
3.The respondent filed counter affidavit and submitted that O.S.No.215
of 1998 filed by the petitioners was dismissed for default on 03.07.2001 and
the respondent was informed that there is a delay in filing the petition to
restore the suit and hence, the suit will not be restored. Believing that, the
respondent did not contact his Advocate and went to other State for his work.
Only after receiving notice in A.R.D.26 of 2010, filed by the respondent for
return of documents, the respondent came to know the ex-parte decree passed
in the said suit and filed I.A.No.1307 of 2012 to set aside the exparte decree.
In the said I.A, the respondent's evidence was closed and evidence on behalf
of the petitioners in the I.A was closed as the petitioners were not ready to let
in evidence. The said I.A was pending enquiry. The respondent further stated
that the petitioners 1 and 2 have entered into an agreement of sale dated
07.01.1998 with the respondent to sell the suit properties for the total sale
consideration of Rs.2,15,000/-, received a sum of Rs.2,00,000/- as an advance
and handed over possession of the suit properties on the same day to the
respondent. From that date, the respondent is cultivating the properties and he
is in possession and enjoyment of the suit properties. The petitioners and
others in the year 2012, tried to interfere with the possession of the
respondent. Therefore, the respondent filed suit in O.S.No.321 of 2012. The
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C.R.P.(PD).No.3589 of 2016
cause of action for both the suits are different, O.S.No.215 of 1998 is not
decided on merits, it is only an exparte decree and prayed for dismissal of
I.A.No.279 of 2013, filed by the petitioners.
4.Before the learned Judge, the petitioners marked the Judgment dated
21.01.2003 in O.S.No.215 of 1998 as Ex.P1. The respondent did not let in
any oral and documentary evidence.
5. The learned Judge considering the averments made in the plaint,
documents filed along with the plaint, affidavit and counter affidavit,
dismissed the application.
6.Against the said order of dismissal dated 06.06.2016 made in
I.A.No.279 of 2013 in O.S.No.321 of 2012, the petitioners have come out
with the present Civil Revision Petition.
7.The learned counsel appearing for the petitioners submitted that the
suit filed by the respondent is abuse of process of Court. The issue involved
in the present suit has already been adjudicated before the Court of law and
an order of interim injunction was granted in the earlier suit in O.S.No.215 of
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C.R.P.(PD).No.3589 of 2016
1998 against the respondent and in view of the same, the present suit is
barred by principles of res-judicata. The learned Judge erred in holding that
the property in Survey No.29/2, the 3rd item of the suit property was not
involved in the earlier suit and the cause of action for the present suit is
different, whereas the respondent himself has admitted that the cause of
action arose in the year 1998. The learned Judge erred in dismissing the
application on the ground that the decree in the earlier suit is not a contested
decree and it is only an exparte decree. There must be some finality in the
proceedings in respect of the same issue between the same parties. The
learned Judge erred in holding that the issue of res-judicata will be decided
only after taking evidence and the order of the learned Judge is erroneous and
prayed for setting aside the order of the learned Judge and rejection of plaint.
8.The learned counsel appearing for the respondent made submissions
in support of the order of the learned Judge and prayed for dismissal of the
Civil Revision Petition.
9.Heard the learned counsel for the petitioners, who is appearing before
this Court physically as well as the learned counsel appearing for the
respondent through video conferencing/Hybrid mode and perused the entire
materials available on record.
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C.R.P.(PD).No.3589 of 2016
10.From the materials available on record, it is seen that the
respondent filed the suit for injunction against the petitioners in respect of
four items of properties mentioned in the plaint. The petitioners filed the
present I.A under Order VII Rule 11 of CPC on the ground that the suit is hit
by principles of res-judicata. According to the petitioners, they have also filed
O.S.No.215 of 1998 against the respondent and four others in respect of the
suit properties for permanent injunction. The said suit was decreed on
21.01.2003. In view of the same, the present suit is hit by principles of res-
judicata. To decide the issue of res-judicata, the Court has to consider
whether the suit or issue was directly and substantially in issue in the former
suit between the same parties or parties under whom, the present plaintiff
claim under the same title. To decide the issue, the plaint in the earlier suit
must be filed. From the materials on record, it is seen that the petitioners have
not filed plaint in the earlier suit. They have filed the judgment and decree
dated 21.01.2003 in O.S.No.215 of 1998. Even before this Court, the
petitioners have not filed the plaint in the earlier suit. It is the contention of
the respondent that as per the agreement of sale dated 07.01.1998, the
petitioners have handed over the possession of the suit properties to the
respondent on 07.01.1998 itself, the respondent is cultivating the suit
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C.R.P.(PD).No.3589 of 2016
properties and he is in possession and enjoyment of the suit properties.
According to the respondent, on 11.09.2012, the petitioners tried to interfere
with his possession and enjoyment of the suit properties. A reading of cause
of action paragraph shows that when the petitioners have given complaint to
the Police and on 10.09.2012, the respondent's complaint to the Inspector of
Police, Magudanchavadi and his Superior Officers. Further, the property
mentioned as item No. 3 in the present suit was not subject matter in the
earlier suit. The learned Judge considering the materials placed before him,
has come to the conclusion that cause of action for both the suits are
different, the 3rd item of the suit properties was not subject matter in the
earlier suit and hence, the issues involved in both the suits are not one and the
same. The petitioners filed judgment and decree dated 21.01.2003 made in
O.S.No.215 of 1998. In the said suit, apart from the respondent, there are four
other defendants and the properties are also different. The order of the
learned Judge dismissing I.A.No.279 of 2013 in O.S.No.321 of 2012 is valid
and there is no error or irregularity in the said order of the learned Judge
warranting interference by this Court.
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C.R.P.(PD).No.3589 of 2016
11.For the above reasons, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
23.11.2021
vkr
Index : Yes / No
Internet : Yes / No
To
The District Munsif Judge,
Sankagiri.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.3589 of 2016
V.M.VELUMANI, J.
vkr
C.R.P.(PD).No.3589 of 2016
and C.M.P.No.18292 of 2016
23.11.2021
https://www.mhc.tn.gov.in/judis
