Saroja vs Ramasamy
2022 Latest Caselaw 4217 Mad

                                                                             A.S.No.384 of 2021

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 04.03.2022

                                                            CORAM

                                       THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN

                                                       A.S.No.384 of 2021

                     Saroja                                                            ...Appellant
                                                              Vs.

                     1.Ramasamy

                     2.Rajalakshmi

                     3.Chandiramani                                     ...Respondents
                     Prayer: Appeal Suit filed under Order 41 Rule 1 and Section 96 of
                     C.P.C., praying to set aside the decree and judgment in I.A.No.132 of
                     2015 in O.S.No.20 of 2014 dated 16.03.2017 on the file of Principal
                     District Judge at Namakkal and allow the First appeal.
                                       For appellant        .. Mr.C.B.Muralikrishnan

                                       For Respondents      .. Mr.P.Iyappan (for R.1)
                                                               Mr.S.Satish Kumar (for R.3)
                                                               No appearance (for R.2)

                                                          JUDGMENT

Heard the learned counsel for the appellant who was the first

defendant in O.S.No.20 of 2014 on the file of the Principal District

Court at Nammkal. Heard the learned counsel for the first respondent

/ third defendant in the suit and also the learned counsel for the third

respondent / second defendant in the suit. There is no representation

on behalf of the second respondent / plaintiff.

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A.S.No.384 of 2021

2. I am informed that there was a delay in filing the appeal. At

that particular point of time, the learned counsel for the second

respondent / plaintiff has taken notice. Since notice has also been

served subsequently after the Appeal has been numbered and the

name and address of the second respondent is printed, even though

there is no representation, I may not hold over the first appeal any

further on the board of this Court.

3. The suit in O.S. has been filed for partition and separate

possession. It has been filed by a sister, against her other two sisters

and her brother. The schedule of the properties for which partition

was sought, has been given in the plaint. The plaintiff sought 1/4th

undivided share in the suit schedule property. She also sought a

further relief that the third defendant in the suit / the brother should

not deal with the property. In the said suit, written statement has

also been filed.

4. Thereafter, an application in I.A.No.132 of 2015 was filed by

the third defendant / brother under Order VII Rule 11 C.P.C. The said

application came up for consideration before the Principal District

Court, Nammakal on 16.03.2017 and the application was allowed.

This has forced the present appellant / first defendant in the suit to

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A.S.No.384 of 2021

file the present appeal. It must be kept in mind that in a suit for

partition, the plaintiff and the defendants stand on the same footing,

and therefore, the first defendant being aggrieved, by the suit being

rejected under Order VII Rule 11 of C.P.C., which effectively would

also mean that she would also not be able to get the fruits of the

partition, if effected among the parties, had filed the present Appeal.

5. The learned District Judge in the course of the order had

made a fundamental error. He had permitted the applicant / third

defendant, to mark documents Exs.P1 to P5. Ex.P.1 was a

compromise decree in O.S.No.224 of 1990 before the Sub Court

Nammakal dated 26.11.1990. Ex.P2 was a sale deed executed by the

third defendant S.P.Ramasamy in favour of a third party and dated

19.11.2013. Ex.P.3 was another sale deed executed by

S.P.Ramasamy in favour of yet another third party and dated

04.06.2014.

6. It is a fundamental aspect to be kept in mind that when an

application is filed under Order VII Rule 11 C.P.C., the plaint will have

to be read in entirety to examine whether the plaint is vitiated by any

of the provisions under Order VII Rule 11 CPC.

Order VII Rule 11 CPC is as follows;

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A.S.No.384 of 2021

"11.Rejection of Plaint:-The plaint shall be rejected in the following cases:-

(a)where it does not disclose a cause of action;

(b)where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c)where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d)where the suit appears from the statement in the plaint to be barred by any law;

(e)where it is not filed in duplicate;

(f)where the plaintiff fails to comply with the provisions of rule 9 [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"

7. These aspects are to be examined only on a holistic reading

of the plaint. The contentions of the defendant at that particular stage

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A.S.No.384 of 2021

cannot be taken into consideration. If the defendant raises various

contentions then issues must be framed and the parties must be put

to trial on those issues.

8. In the instant case, since Ex.P.1 compromise decree has

been filed, the learned Judge examined the said compromise decree

and stated that the suit is barred under Section 11 of C.P.C. namely

on the principle of res judicata.

9. Res judicata is an issue which has to be established in the

manner known to law. The parties must be permitted to lead evidence

on that particular aspect. A very reading of Section 11 CPC would

make this aspect clear.

Section 11 C.P.C. is as follows;

"11.Res Judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

10. The necessary aspects to be examined under Section 11

C.P.C., is not on a reading of a document by the Court but on the

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A.S.No.384 of 2021

parties stating that the issues raised had been directly and

substantially in issue in an earlier suit between the same parties who

had participated in the lis in the very same capacity and substantial

materials were presented before that Court and the Court had also

given specific findings on the said issues. These are all aspects in

which both oral and documentary evidence is required. A cursory

reading of a compromise decree without knowing the surrounding

circumstances of that particular decree or the pleadings of that

particular plaint cannot be and should not have been the basis to

reject a plaint.

11. The entire procedure adopted by the learned Judge is non-

est. If at all the principle of res judicata is to be applied, that should

be framed as a separate issue and both the plaintiff and the

defendant must be granted an opportunity to grace the witness box,

lead evidence as to whether Section 11 of C.P.C. applies or does not

apply and thereafter a judgement will have to be given on analysis of

the evidence presented. The evidence presented should not only be

on the compromise decree which the learned Judge had read but also

on the plaint in the earlier pleadings in the suit to determine the

nature of the parties in the earlier suit and whether they were at lis in

the same capacity and the nature of judgment which had been passed

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A.S.No.384 of 2021

in the earlier suit. If at all a compromise had been effected, even

then, the terms of the compromise will have to be examined in terms

of the pleadings to examine whether the compromise was with regard

to the pleadings or whether the parties have gone beyond the

pleadings and settled any other issue among themselves.

12. Moreover, these are documents which cannot and should

not have been examined by the learned Judge come to a conclusion

that the plaint is to be rejected under Order VII Rule 11 of C.P.C.

13. The order under appeal does not stand the scrutiny of this

Court and is set aside.

14. Let the trial proceed further in O.S.No.20 of 2014.

15. The First Appeal stands allowed and the order in I.A.No.132

of 2015 dated 16.03.2017 is set aside. The parties shall present their

pleadings before the Principal District Court, Nammakal, who shall

frame issues and put the parties to trial. There shall be no order as to

costs.

04.03.2022 mrm Index: Yes/No Internet: Yes/No

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A.S.No.384 of 2021

C.V.KARTHIKEYAN.J.,

mrm

To

The Principal District Judge Namakkal.

A.S.No.384 of 2021

04.03.2022

https://www.mhc.tn.gov.in/judis