Madras High Court
C.Karthikeyan @ Kalyananathan vs Karthickpriya on 11 January, 2022
C.R.P.(PD) (MD) No.193 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.193 of 2015
and
M.P.(MD) No.1 of 2015
C.Karthikeyan @ Kalyananathan .. Petitioner/Petitioner/
Defendant
-vs-
Karthickpriya .. Respondent/Respondent/
Plaintiff
Prayer :- Petition filed under Article 227 of the Constitution of India to
set aside the fair and decreetal order passed in I.A.No.5 of 2014 in
O.S.No.462 of 2011 dated 17.12.2014 on the file of the V Additional
Sub-Judge, Madurai.
For Petitioner : Mr.K.K.Ramakrishnan
For Respondent : Mr.M.P.Senthil
******
___________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
ORDER
The defendant, whose application in I.A.No.5 of 2014 in O.S.No.
462 of 2011 filed for rejecting the plaint has been dismissed by the
learned V Additional Sub Judge, Madurai, by her order dated 17.12.2014,
is the revision petitioner before this Court.
2. The main grievance of the defendant is that though extensive
reasons have been given for rejecting the plaint, the learned V Additional
Sub-Judge, Madurai, had set out six points for consideration and the
points for consideration have not been answered with a reasoned order.
This is the main grouse of the revision petitioner.
3. The facts in brief are as follows:-
3.1. The respondent/plaintiff had filed the suit for partition
claiming to be the daughter of deceased Dr.KChithambara Vinayagam @
K.Chithambaram. The 2nd defendant is the son of Dr.Chithambara
Vinayagam @ K.Chithambaram through one Saraswathi Ammal and the
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
plaintiff was born to one Revathi, who was in a relationship with the said
Doctor. She would submit that on the death of her father, she was also
entitled to a share in his properties. The defendant, on entering
appearance, has taken out an application for rejecting the plaint on the
ground that earlier, the plaintiff, as a minor, and her mother for self and
representing the minor had filed a maintenance suit in O.S.No.15 of 1997
as an indigent person. The relief sought for in that suit was for a
direction to the defendants therein to pay a sum of Rs.3,60,000/- towards
past maintenance and future maintenance towards Rs.10,000/- per month
from and out of the estate of the deceased Dr.Chithambara Vinayagam.
This suit came to be compromised and a compromise decree came to be
passed. Under the terms of the compromise, the plaintiffs in the suit in
O.S.No.15 of 1997 had agreed to receive a sum of Rs.1,75,000/- for the
benefit and welfare of the minor (the plaintiff herein), which was to be
invested in the M.D.C.C. Bank Ltd., till the minor attains majority. The
petitioner's mother had given up her status as wife of Dr.Chithambara
Vinayagam or that she had any relationship with him. The petitioner was
entitled to withdraw the interest periodically from the bank. The
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
petitioner, after attaining majority, was entitled to withdraw the entire
money after getting herself declared a major. The plaintiff and her
mother had agreed that they would not claim any right to any other
property of the said Dr.Chithambara Vinayagam.
4. Mr.Barathan, learned counsel for the petitioner would
submit that prior to the passing of the compromise decree, the mother of
the petitioner herein had filed I.A.No.37 of 2000 seeking the permission
of the Court to enter into the compromise on behalf of the minor, which
was also granted by the Court and it is thereafter, that the compromise
decree had been passed. It also transpires that when the petitioner had
turned a major, she had taken out an application for withdrawing the
amount deposited in I.A.No.190 of 2009 and the amount was also
withdrawn. Thereafter, in the year 2013, she had taken out an application
to declare the compromise null and void on the ground of fraud.
5. The respondent had filed a detailed counter setting forth the
facts and during the oral evidence, the petitioner's mother, who was
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
examined as witness on the side of the defendant, had deposed to the fact
that the compromise arrived at was not a result of fraud. The learned
Family Court, Madurai by order dated 23.02.2011, was pleased to
dismiss the said petition. In fact, pending this application, the plaintiff
had moved I.A.Nos.150 and 151 of 2010 to set aside the compromise
decree and for reopening the evidence to examine the two advocates,
who had appeared on her behalf in the earlier suit. That applications
were also rejected by the learned Family Judge, Madurai.
6. After the dismissal of her applications for setting aside the
compromise decree, the plaintiff has come forward with the present suit.
The defendant has immediately come forward with an application for
rejecting the plaint on the ground of re-litigation, suppression of facts,
etc. The said application was contested by the plaintiff and the learned
Family Judge, after hearing the parties had framed the following points
for consideration:-
“3.Points for consideration:-
1.Whether the suit is hit by Sec 11 of CPC?
2.Whether the suit is a re-litigation and abuse
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
of process of law and court?
3.Whether the suit is hit by law of limitation?
4.Whether the suit is bad for non disclosing any
cause of action?
5.Whether the suit is bad under the law of
estoppels by Judgment?
6.Whether the Court fee paid by the
Respondent/Plaintiff u/s 37(2) of the TNCF &
SV Act is correct?”
The learned Judge has considered Point No.1 extensively and given a
detailed reasoning for his conclusion.
7. The learned counsel appearing for the petitioner had fairly
conceded that Section 11 of the Civil Procedure Code will not act as res
judicata in the case of compromise decree, as it is not a considered order.
However, with reference to the other points for consideration, no
reasoning whatsoever has been given by the learned Judge except for
referring to certain judgments. He would therefore, submit that the order
that has been passed rejecting the application, is one which is without
any application of mind and therefore, has to be set aside.
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
8. The learned counsel appearing for the respondent would also
fairly concede the absence of reasoning in the order and reading of the
entire order would demonstrate the above lacunae.
9. A reading of the impugned order shows that the arguments
that have been put forward by the learned counsel for the
petitioner/defendant has not even been referred to in the order. In these
circumstances, it would be in the interest of both parties, if the Civil
Revision Petition is disposed of by setting aside the order dated
17.12.2014 in I.A.No.5 of 2014 and I.A.No.5 of 2014 is remitted back to
the file of the learned V Additional Sub-Judge, Madurai, for fresh
consideration giving an opportunity to both parties to adduce and
produce evidence.
10. In the result, the Civil Revision Petition is disposed of, the
order dated 17.12.2014 is set aside and I.A.No.5 of 2014 is remitted back
to the file of the learned V Additional Sub-Judge, Madurai, for fresh
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
consideration giving an opportunity to both parties to submit their
evidence and documents. The learned Judge shall dispose of the
application on or before 30.06.2022. No costs. Consequently, connected
miscellaneous petition is closed.
11.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
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
The V Additional Sub-Judge, Madurai.
___________
https://www.mhc.tn.gov.in/judis
C.R.P.(PD) (MD) No.193 of 2015
P.T.ASHA, J.
abr
C.R.P.(PD) (MD) No.193 of 2015
Dated: 11.01.2022
___________
https://www.mhc.tn.gov.in/judis
