Madras High Court
Vijaya Venkataraman vs Muniammal on 6 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.04.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.No.398 of 2017
Vijaya Venkataraman
... Petitioner
Vs.
1.Muniammal
2.M/s.Sri Vinayaga Builders,
No.6, Madley Road, Second Floor,
T.Nagar, Chennai – 600 017.
3.Radha Ramachandran
4.Ramachandran
5.Thavasimuthu
6.The Commissioner,
Corporation of Chennai,
Rippon Buildings,
EVR Salai,
Chennai – 600 003.
7.M.Jayakumar
8.P.Neelavathy
9.S.Uma Kolam
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2
10.E.Rajagopalan
11.K.Rajasekaran
12.R.Ananda Kumar
13.R.Vinoth Kumar
...Respondents
RR7 to 13 impleaded as party respondents
vide Court order dated 16.04.2019 made in
CMP No.13533 of 2017 in CRP No.398 of 2017.
Civil Revision Petition filed under Article 227 of the Constitution of
India, against the Fair and Decreetal order dated 16.12.2016 in
I.A.No.11931 of 2016 in O.S.No.838 of 2014 on the file of the IV
Assistant City Civil Court, Chennai.
For Petitioner .. Mr.V.Lakshmi Narayanan
For Mr.R.Vishnu
For R1 .. Ms.Jayanthi Sekar
For R5 .. Mr.P.Mohanraj
For R6 .. Ms.Karthika Ashok
For RR7 to 13 .. Mr.P.Valliappan
For R2, R3 & R5 .. No appearance
ORDER
The property at Door No.4-A which was originally Plot No.67, 4th
Street, Andavar Nagar, Kodambakkam, Chennai – 600 024 in S.No.7/10,
Block No.9, Central Taluk, Chennai District, bearing Patta No.1306 and
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totally measuring 3300 Sq.ft had been put up for development and issues
relating to such development are being litigated not only before this
Court but more vigorously before the Trial Court.
2.The 1st respondent herein, Muniammal was the beneficiary or
rather the purchaser of a particular plot. When the property was
developed, she had cause to institute O.S.No.2653 of 2005 against the
builder and the Corporation Authorities seeking a relief to demolish that
portion which according to her were unauthorized construction and for
injunction. Owing to the fact that, the builder had by the time the issue
had come up for consideration, had built up the entire plots and had also
sold then to various parties, he was not interested in the litigation and
remained exparte. The Corporation Authorities remained exparte. An ex-
parte decree came to be passed on 30.10.2009 by the learned V Assistant
City Civil Judge Chennai.
3.Thereafter, the Revision Petitioner herein, had necessity to file
O.S.No.6189 of 2012. She filed the said Original Suit owing to the fact
that the plaintiff in O.S.No.2653 of 2005, referred supra, Muniammal
had filed E.P.No.2978 of 2012 seeking execution of the decree which in
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effect meant that she wanted to put into effect the mandatory injunction
decree which she had obtained, by which, the flats which had been
constructed by the builder were sought to be demolished. In one of those
flats the revision petitioner / plaintiff in O.S.No.6189 of 2012 was a
resident and therefore being deeply aggrieved, she filed O.S.No.6189 of
2012 seeking stay of further proceedings in E.P.No.2978 of 2012 and
also for a declaration that the decree / exparte decree in O.S.No.2653 of
2005 was not binding on her. It must be kept in mind that she was not
made a party to that particular suit.
4.Thereafter, the original plaintiff, Muniammal, not to be out done
by such new event of a suit being filed, another suit in O.S.No.838 of
2014 on the file of the IV Assistant City City Court, Chennai for
permanent injunction and I am informed that was with respect to a car
park which was somewhere in that complex and again for a mandatory
injunction to demolish the particular building which according to her
were illegal constructions.
5.In this particular suit she had impleaded the plaintiff in
O.S.No.6189 of 2012 as a defendant. That particular defendant, again not
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to be out done by the filing of a new suit, filed an application under
Order 7 Rule 11 CPC to reject O.S.No.838 of 2014. The order passed in
the said application in I.A.No.11931 of 2016 by the learned IV Assistant
City Civil Court, Chennai, has been put to test in this particular Civil
Revision Petition.
6.The learned IV Assistant City Civil Court, Chennai, had taken
up a via media approach. He was faced with a suit seeking the relief of
permanent injunction and also mandatory injunction. The application
under Order 7 Rule 11 CPC had been filed claiming that the suit was
barred by limitation, and that the suit was barred by the principles of res-
judicata since an exparte decree had already been granted and that
particular suit had been stayed and that the relief which had been sought
could have been sought in the earlier suit and therefore, that the second
suit was also barred under the provisions of Order 2 Rule 2 CPC.
7.Let me hold on proceeding further, but deviate and narrate one
particular fact which had been left out namely, there was an occasion for
both the parties to come before this Court by way of filing an earlier
Civil Revision Petition in CRP PD No.1170 of 2013 since the relief of
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stay of Execution Petition was not granted by the learned Trial Judge as
sought in O.S.No.6189 of 2012. I am informed that in CRP PD No.1170
of 2013, E.P.No.2978 of 2012 in O.S.No.2653 of 2005 had been stayed
and a direction had been given that it should await the result of the
decree or judgment to be passed in O.S.No.6189 of 2012.
8.It can be safely presumed that it would remain stagnant for
perpetuity since, owing to the third suit which had been filed in
O.S.No.838 of 2014 and the nature of issues framed in O.S.No.6189 of
2012, the parties again travelled to this Court by filing CRP (PD) No.483
of 2014. A learned Single Judge of this Court by order dated 16.12.2015
had applied her mind to the issues framed and passed necessary orders,
but towards the end had stated that a joint trial should be conducted with
respect to the issues in O.S.No.838 of 2014 and O.S.No.6189 of 2012. It
can be reasonably presumed that the learned Judge had probably
presumed that the issues in O.S.No.838 of 2014 required to be tested
during the course of trial. But before it could be so done, the Application
under Order 7 Rule 11 CPC which had referred earlier had come to be
filed by the plaintiff in O.S.No.6189 of 2012.
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9.I am also informed by the learned counsels that the order in CRP
(PD) No.483 of 2014 was not brought to the notice of the learned Judge,
while disposing of I.A.No.11931 of 2016 which was filed under Order 7
Rule 11 CPC. Even if had been, the learned IV Assistant City Civil
Judge, had not referred to the said order. He proceeded to examine the
rival contentions and had passed an order which is very seriously
assailed by the learned counsel for the revision petitioner.
10.It had been held that the relief seeking permanent injunction is
barred by the law of limitation. It was then held that the relief of
mandatory injunction cannot be deemed to be barred by the law of
limitation and therefore, the suit was permitted to proceed on that
particular ground. With respect to the contention under Order 2 Rule 2
CPC, it was stated that since the applicant in I.A.No.11931 of 2016 was
not a party in O.S.No.2653 of 2005 it would not be proper to take
recourse to Order 2 Rule 2 CPC.
11.Thereafter, with respect to issue of res-judicata, it had been held
that further defendants had been added in O.S.No.838 of 2014, the issue
of res-judicata would not arise.
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12.Heard the learned counsels. I must admit that I have given only
a brief hearing to them since arguments appeared to go around
tangentially. I am of the opinion that it would only be appropriate that
the learned IV Assistant City Civil Court Chennai is again given an
opportunity to re-apply his mind with respect to the order passed by him
particularly, with respect to the issues of res-judicata and Order 2 Rule 2
CPC.
13.The learned counsel for the revision petitioner stated that the IV
Assistant Judge, City Civil Court Chennai. had struck out the plaint in
O.S.No.838 of 2014 with respect to the relief of permanent injunction.
The plaintiff in O.S.No.838 of 2014 does not seem to have any grievance
over that particular aspect and since the plaintiff is not prepared to lead
any evidence on that particular fact, I would go with the order of the IV
Assistant City Civil Court, Chennai, striking out the relief of permanent
injunction. But the suit cannot be bifurcated and the suit be struck off
with respect to one relief and be retained with respect to the other reliefs.
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14.Therefore, even though I had expressed an opinion that the
relief of permanent injunction had been become redundant, when the
matter is reheard by the IV Assistant Judge, City Civil Court, Chennai,
necessary reasons have to be given as to why he had struck off the relief
of permanent injunction and whether the plaint can still be proceeded
with respect to the reliefs of mandatory injunction or whether the said
relief of mandatory injunction would be hit under Order 2 Rule 2 CPC
and whether to seek such relief under Order 2 Rule 2 CPC, it is
imperative that the plaintiff therein / applicant should be a party in the
earlier suit or that this relief should also have been sought in the earlier
suit and had been omitted to be included in the earlier suit in
O.S.No.2653 of 2005. That is one aspect which has to be examined.
15.The other aspect is with respect to res-judicata. Section 11 of
CPC states that where between the parties to a suit the issues had been
earlier decided, then the decision in the earlier suit would stare in the
face of the learned Judge who decides a similar issue in a subsequent
suit.
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16.Let me put the concepts in very simple terms. Here a decree
already passed in O.S.No.2653 of 2005 and if the observations therein
are binding, then putting the parties for trial once again would only be a
redundant exercise. Whether such exercise is actually required or not is
yet another issue which has to be examined by the learned IV Assistant
City Civil Court, Chennai.
17.More importantly the 1st respondent herein / plaintiff in
O.S.No.838 of 2014 should be called upon to explain, why in the earlier
suit in O.S.No. 2653 of 2005, where the Execution Petition had been now
filed, the reliefs now sought had not been sought. An explanation will
have to be given and if such explanation is not to the satisfaction of the
learned Judge, then he could very well proceed to exercise the provisions
under Order 7 Rule 11 CPC in manner known to law.
18.All these requires re-hearing of the entire application in
I.A.No.11931 of 2016. But, as I stated the relief of permanent injunction
appears to have been abandoned by the plaintiff themselves. The effect
of abandonment has been explained in order 23 Rule 1(4) CPC. If it is
felt that relief of permanent injunction is abandoned since it is not urged
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before this Court and no revision has been filed against that particular
relief being struck out by the learned IV Assistant City Civil Court,
Chennai, it is not necessary for the Trial Court to take up that particular
issue, but concentrate on the issue of mandaotry injunction, concentrate
on the provisions under Order 2 Rule 2 CPC, concentrate on the effect of
Section 11 of CPC and also concentrate on the effect of the order in CRP
No.483 of 2014 dated 16.12.2015 and then pass a considered order.
19.The learned IV Assistant Judge, City Civil Court, Chennai, may
also re-examine the issue whether the relief of mandatory injunction is
barred by law of limitation and whether it still survives. The entire
issues have to be re-heard after giving due opportunity to both the parties
at lis.
20.The order under revision namely, I.A.No.11931 of 2016 in
O.S.No.838 of 2014 dated 16.12.2016 is set aside. But since no
arguments had been put by the 1st respondent with respect to the rejection
of relief of permanent injunction it can be safely presumed that the said
relief has been abandoned and the interplay of Order 23 Rule 1(4) of
CPC may be examined along with the issue of mandatory injunction.
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21.With the above observations, the present Civil Revision
Petition is allowed. No order as to costs. Consequently, connected Civil
Revision Petition is closed.
06.04.2022
Internet:Yes/No
Index:Yes/No
smv
To,
The IV Assistant City Civil Court, Chennai.
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C.V.KARTHIKEYAN,J.
smv
C.R.P.PD.No.398 of 2017
06.04.2022
https://www.mhc.tn.gov.in/judis
