Madras High Court
M/S.Kumaran Auto Mobiles Pvt.Ltd vs F.Stalin on 13 October, 2022
A.S(MD)No.191 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
A.S(MD)No.191 of 2014
and
M.P(MD)Nos.1 and 2 of 2014
M/s.Kumaran Auto Mobiles Pvt.Ltd.,
Nagercoil,
having its registered office at
58/1, Sumitha Bhavan,
1st Cross Street, Nesamani Nagar, Nagercoil,
Kanyakumari District and Administrative Office at
27/1, 253 E/1, K.P.Road, Nagercoil,
through Managing Director and represented by its
authorised Signatory
G.Antony Ravindran ... Appellant / Respondent/Plaintiff
-Vs-
1.F.Stalin
2.F.S.Derik Stalin .. Respondents/Petitioners/
2nd &3rd Defendants
3.K.Subramanian .. Respondent/2nd Respondent/
1st Defendant
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PRAYER: Appeal is filed under Section 96 of the Civil Procedure Code,
against the Fair and decreetal order dated 09.07.2014 made in I.A.No.191
of 2013 in O.S.No.87 of 2013, on the file of the learned Principal District
Judge, Tirunelveli.
For Appellant : Mr.N.Dilip Kumar
For Respondents : Mr.M.Vallinayagam
Senior Counsel
for Mr.D.Nallathambi
for R1 and R2
: Mr.S.Palanivelayutham
for R3
JUDGMENT
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
The plaintiff has filed this appeal against the Judgment and
Decree of the Principal District Judge, Tirunelveli, made in O.S.No.87 of
2013, dated 09.07.2014, rejecting the plaint under Order VII Rule 11 of
CPC.
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2. The appellant filed the suit seeking for the relief of
declaration of title and for a consequential permanent injunction
restraining the defendants from interfering with the peaceful possession
and enjoyment of the suit properties.
3. The defendants 2 and 3 filed a petition in I.A.No.191 of
2013 under Order VII Rule 11 of CPC praying for the rejection of plaint.
The application was filed on the ground that the plaintiff filed an earlier
suit in O.S.No.434 of 2013 against the same defendants, making the same
allegations, claiming for the relief of permanent injunction. Even when the
said suit was filed, there was cause of action for the plaintiff to have
sought for the relief that was claimed in the present suit in O.S.No.87 of
2013 and inspite of the same, the larger relief was not sought for. The said
suit in O.S.No.434 of 2013 was dismissed as not pressed through
Judgment and Decree dated 29.11.2013 and the plaintiff did not seek any
leave or liberty to prosecute the subsequent suit filed in O.S.No.87 of
2013. In view of the same, the defendants contended that the suit is barred
under Order II Rule 2 of CPC and hence, sought for the rejection of plaint.
The plaintiff filed a counter affidavit and took a stand that the present suit
in O.S.No.87 of 2013 was filed for a different cause of action and there
was one more additional property that was added to the schedule based on
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the claim made by the first defendant and the suit was filed seeking for a
larger relief and hence, the same is not barred under Order II Rule 2 of
CPC.
4. The Court below, on considering the ground taken by the
defendants and the response given by the plaintiff, found that the suit is
clearly barred under Order II Rule 2 of CPC, since the plaintiff did not get
leave when the earlier suit was filed in O.S.No.434 of 2013 and since both
the suits are founded on the same cause of action, the Court below rejected
the plaint as barred by the law of res judicata. Aggrieved by the same, the
present Appeal has been filed before this Court.
5. Heard Mr.N.Dilip Kumar, learned counsel for the appellant,
Mr.M.Vallinayagam, learned Senior Counsel for Mr.D.Nallathambi,
learned counsel for the respondents 1 and 2 and Mr.S.Palanivelayutham,
learned counsel for the third respondent.
6. The cause of action that was pleaded when O.S.No.434 of
2013 was filed on 10.9.2013 is as follows:
“8. The cause of action for the suit arose on
during 2007 when the 1st Defendant and his father
approached Mr.Nazareth Charles to lent
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monetary help and promised to buy the schedule
property in the name of the plaintiff company and
also subsequent days, when Mr.Nazerath Charles
became the Managing Director of the Plaintiff
company and on subsequent days when the 1st
schedule property was purchased by utilized
funds provided by the Nazerath Charles in the
name of the 1st Defendant in a clandestine
Manner on subsequent days when the plaintiff
company remaining in physical possession and
enjoyment of the schedule property when the 1st
Defendant colluded with the Defendants 2 &3 and
brought into existence the alleged sale deed with
regard to the schedule property and on
subsequent days when Mr.Nazerath Charles came
to know about the defendants illegal activities
and lodged a complaint before the superintendent
of police Nagercoil through its Authorized
Signatory and a criminal case was registered on
4.9.2013 by the District crime branch Nagercoil,
and the criminal case pending on JM-1
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Nagercoil, and on subsequent days when
Defendants attempts to interfere with the
plaintiff's company peaceful possession and
enjoyment of the schedule property at
konganthanparai, Palayamkottai Taluk,
Tirunelveli District where the schedule property
situate all within the jurisdiction of this Hon'ble
court.”
7. The cause of action as pleaded in O.S.No.87 of 2013, when
the same was filed on 21.10.2013 is as follows:
“The cause of action for the suit arose during 2007
when the 1st Defendant and his father approached
Mr.Nazareth Charles to lend money and promised
to buy the schedule property in the name of the
plaintiff company and also subsequent days when
Mr.Nazereth charles became the Managing
Director of the Plaintiff company, the
1stscheduleproperty was purchased by utilizing the
funds of plaintiff company in name of the
1stDefendant in a Clandestine Manner, when the
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plaintiff company is remaining in physical
possession and enjoyment of the schedule property
and on subsequent days when the 1st defendant
colluded with the defendants 2 & 3 and brought into
existence the alleged sale deed with regard to the
1stschedule property belonging to the company and
on subsequent days when Mr.Nazarath charles
came to know about the defendants illegal activities
lodged a complaint before the superintendent of
police, Nagercoil through its Authorized Signatory
and a criminal case was also registered on 4.9.2013
by the District crime branch Nagercoil, and the
criminal case is pending on the file of Judicial
Magistrate court No.1 Nagercoil, and on
subsequent days when Defendants attempts to
interfere with the plaintiff company's peaceful
possession and enjoyment of the schedule property
and when the plaintiff company filed 0.S. No.
343/2013 on the file of 1st Additional District
Munsif, Tirunelveli and on subsequent days when
Defendants 2 and 3 are claiming right over the 1 st
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schedule property and 1st defendant is claiming
right over the 2nd schedule property the plaintiff was
constrained to file the suit for declaration and
injunction all at Konganthanparai, Palayamkottai
Taluk, Tirunelveli District and Mathalamparai,
Tenkasi Taluk where the schedule property situate
all within the jurisdiction of this Hon'ble court.”
8. This Court carefully went through the plaint filed in both
the suits and it is found that the averments as found in both the plaints are
the same and infact, it is word by word the same averment. Admittedly,
when the suit in O.S.No.434 of 2013 was filed, the plaintiff did not obtain
the leave of the Court under Order II Rule 2 of CPC to claim for a larger
relief and the plaintiff sought for a lesser relief, when the relief sought for
in the latter suit in O.S.No.87 of 2013 could have been claimed in the
earlier suit filed in O.S.No.434 of 2013. That apart, the earlier suit was
dismissed as not pressed and even at that point of time, the plaintiff failed
to get the liberty to file the subsequent suit on the same cause of action.
9. The bar under Order II Rule 2 of CPC will stand
automatically attracted where the previous suit forms the foundation of the
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subsequent suit and the plaintiff could have claimed the reliefs sought for
in the subsequent suit, in the earlier suit and more particularly, when both
the suits are between the same parties. The plea of bar under Order II Rule
2 of CPC will apply even where the second suit is filed during the
pendency of the first suit and it is not necessary that the first suit should
have been disposed of when the second suit is filed. The law on this issue
has been considered in detail by this Court in Suresh Kumar Kankariya v.
K. Jigibai @ Pushpammal reported in 2022 (2) LW 799.
10. In the facts of the present case, the Court below was
perfectly right in rejecting the plaint filed in O.S.No.87 of 2013, since it is
barred under Order II Rule 2 of CPC and just because one more property
was added to the schedule, the plaintiff cannot escape from the clutches of
Order II Rule 2 of CPC, since the cause of action was very much available
for the plaintiff to have added that property also in the earlier suit and
claimed for a larger relief.
11. In the result, this Court does not find any infirmity or
illegality in the Order passed by the Court below rejecting the plaint and
consequently dismissing the suit and accordingly, this Appeal stands
dismissed. Considering the facts and circumstances of the case, there shall
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be no order as to costs. Consequently, connected miscellaneous petitions
are closed.
[J.N.B, J.] & [N.A.V., J.]
13.10.2022
Index : Yes/No
Internet : Yes/No
PJL
To
The Principal District Judge,
Tirunelveli.
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AND
N.ANAND VENKATESH, J
PJL
Judgment made in
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13.10.2022
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