Madras High Court
Solomon Selvaraj vs Indirani Bhagawan Singh on 28 January, 2022
CMA No.38 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMA No.38 of 2021
1.Solomon Selvaraj
Esther (since deceased)
2.Pushparaj
3.Davidraj
4.Mary
5.Pushpa
6.P.S.Thangadurai
7.Gracy Beulah
8.Chelladurai
9.Samuel
10.Mrs.Rajamani
11.Mrs.Elizabeth
12.Mrs.Arul Mary
13.Mrs.Ruby
14.Emmanuel ... Appellants
Vs
1.Indirani Bhagawan Singh
2.R.Bhagawan Singh
3.The District Collector
Kanchipuram District
Kanchipuram. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of CPC
against the fair and decretal order dated 23.10.2017 passed in I.O.P.
No.1 of 2015 by the learned Principal District Judge, Kanchipuram
District at Chengalpattu.
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CMA No.38 of 2021
For Appellant : Mr.Ashok Menon
For Respondent : Mr.Vijayakumar for R1 & R2
Mr.M.Bindran, AGP for R3
JUDGMENT
Challenge in this appeal is to the order of the trial court,
namely Principal District Judge, Kanchipuram District @ Chengalpattu,
dated 23.10.2017 made in I.O.P. No.1 of 2015, rejecting an application
filed by the petitioners seeking leave to file a suit as indigent persons.
The attempted suit is one for declaration of title and for recovery of
possession.
2. The claim of the plaintiffs was resisted by the defendants
contending that the very petition itself is not maintainable, as there are
prior proceedings between the parties, in which course, the courts had
upheld the title of the defendants to the very suit property. Therefore,
it was claimed that the suit is a re-litigation and the court cannot
permit such re-litigation by a person, who claims to be an indigent
person also. The claim of the plaintiffs that they are indigent persons
was also contested.
3. The learned Principal District Judge, Kanchipuram District,
upon examination of the earlier proceedings, found that the suit is a re-
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CMA No.38 of 2021
litigation and the same cannot be allowed. He recorded a finding that
the suit would be barred by res judicata. The learned trial Judge also
concluded that the plaintiffs are men of means and hence they are not
entitled to the leave to file the suit as indigent persons. On the above
findings, the learned trial Judge rejected the application. The
correctness of the said order is questioned in this civil miscellaneous
appeal.
4. Mr.Ashok Menon, learned counsel appearing for the
appellants submitted that the appellants are ready to pay the court fees
and therefore, the order of the trial court may be confirmed and they
may be granted further time to pay the court fee.
5. Per contra, Mr.Vijayakumar, learned counsel appearing for
the respondents 1 and 2/defendants would contest the said claim and
contend that once the court has found that the suit is an abuse of
process of court and had rejected the application, the offer to pay the
court fee cannot be allowed. He would point out further that there were
earlier proceedings relating to the very same property in O.S.
No.71/1998 on the file of the learned District Munsif, Chengalpattu,
wherein a specific issue was framed regarding the title of the plaintiffs'
vendor as well as the title of the defendants' vendor and the courts had
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CMA No.38 of 2021
answered the said issue in favour of the defendants and concluded that
the plaintiffs' vendor had no title to the property. According to the
learned counsel, it is settled law that the finding on the title upon
framing an issue in a suit for injunction would also operate as a res
judicata, therefore, by merely including a prayer for declaration of title,
the plaintiffs are attempting to re-litigate the matter, where the courts
had upheld the title of the defendants to the very suit property.
6. A perusal of the same would show that the contention of
the learned counsel for the respondents 1 and 2/defendants, is
justified. The suit in O.S. No.71/1998 was filed by the present
appellants as plaintiffs, seeking a decree for permanent injunction
claiming that they had inherited the property from one Abraham, who
died in the year 1955. The suit was resisted by the
defendants/respondents 1 and 2 herein contending that the suit
properties never belonged to Abraham, but they belonged to one
Chakkarlal Chandy Abraham in the year 1946 and on his death on
22.06.1955, the defendants had inherited the property. The first issue
that was framed in the suit reads as follows:
"1. tHf;Fr; brhj;jhdJ Mjpapy;
thjpfspd; ghl;ldhuhd Mg;ufhk; vd;gtUf;F
ghj;jpakhdjh my;yJ gpujpthjpfspd; fpiuajhuuhd
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CMA No.38 of 2021
rhz;o Mg;ufhkpd; jfg;gduhd rp/rp/Mg;ufhk;
vd;gtUf;F ghj;jpakhd brhj;J vd;gJ
cz;ikah?"
7. It was not in dispute that the said issue was answered
against the plaintiffs. The said finding was confirmed in A.S.
No.83/2004 and in S.A. No.609/2006 by this court. Therefore, the
finding of the trial court that the property belonged to the predecessor
of the defendants and the predecessor of the plaintiffs had no title to
the property had been confirmed up to this court in second appeal and
the said finding has become final and there was no further appeal.
8. Mr.Ashok Menon, learned counsel appearing for the
appellants/plaintiffs would vehemently contend that there are certain
documents, which were overlooked and in second appeal, this court
relied upon an order which was set aside in writ proceedings also. I
think, I cannot go into those aspects. The second appeal judgment was
dated 19.09.2013. Any document prior to that cannot be looked into, to
decide on the question of title, since this court in second appeal has
upheld the decisions of the courts below that the property belonged to
the predecessor of the defendants and the title of the defendants has
been affirmed.
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CMA No.38 of 2021
9. No doubt, the earlier suit was for a permanent injunction,
but, as rightly pointed out by the learned counsel for the defendants
the suit is a re-litigation and the court cannot permit such re-litigation.
It is settled law that the finding on the title by framing an issue in a suit
for injunction would also operate as a res judicata in a subsequent suit
also for title. Therefore, I am unable to find fault with the order of the
learned Principal District Judge, Kanchipuram District at Chengalpattu
for having come to the conclusion that the suit, if allowed would
amount to an abuse of process of court and is barred by res judicata
and therefore, the learned trial Judge was right in dismissing the
application. I do not see any error or infirmity in the order of the trial
Judge dated 23.10.2017 passed in I.O.P. No.1 of 2015 and the same
deserves to be confirmed.
10. Accordingly, this civil miscellaneous appeal is dismissed.
However, there shall be no order as to costs.
28.01.2012
Asr
Index: No
Speaking order
To
1.The Principal District Judge,
Kancheepuram District at Chengalpattu
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CMA No.38 of 2021
2. The Section Officer,
VR Section,
Madras High Court, Chennai.
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CMA No.38 of 2021
R.SUBRAMANIAN, J.
Asr
CMA No.38 of 2021
28.01.2022
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