Madras High Court
St. Assisi Higher Secondary ... vs P.Joseph Micheal on 21 August, 2023
C.R.P.(MD).No.2065 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(PD)(MD)No.2065 of 2018
and
C.M.P(MD) No.9149 of 2018
St. Assisi Higher Secondary School,
Represented by its Correspondent,
Pavoor Chathiram,
Kulasekarapatti Village,
Thenkasi Taluk. ... Petitioner/Defendant No.6
-vs-
1. P.Joseph Micheal
2. J.Salet Arul Irudhayaraj
3. J.Suresh Lehoree
4. A.Sahaya Mary
5. S.Mariappan
6. P.Santhana Mariappan
7. K.Subbaiah
8. K.Ramalingam ... Respondents 1 to 8/Plaintiffs
9. The Sub-Registrar,
Office of the Sub Registrar,
Pavoorchathiram,
Kallorani Village,
Tenkasi Taluk.
10. The District Registrar (Admin)
Office of the District Registrar,
Near RTO Office,
Madurai Road, Tenkasi.
1/17
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C.R.P.(MD).No.2065 of 2018
11. The Deputy Inspector General of Registration,
District Collectorate,
Tirunelveli District.
12. The Inspector General of Registration,
No.100, Santhome High Road,
Chennai – 28.
13. The Government of Tamil Nadu,
Represented by its District Collector,
Tirunelveli. ... Respondents1 to 5/Defendants 1 to 5
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to strike off the plaint in O.S.No.192 of 2018 on the file
of the Principal District Munsif, Thenkasi.
For Petitioner : Mr.S.Meenakshi Sundaram
Senior Counsel
For Respondents : Mr.D.Srinivasaraghavan
For R1 to R5, R7 and R8
: Mr.M.Senthil Ayyanar
Government Advocate
For R-9 to R-13
: No appearance – for R6
ORDER
The present Civil Revision Petition has been filed by the petitioner
under Article 227 of the Constitution of India, to strike off the plaint in
O.S.No.192 of 2018 on the file of the Principal District Munsif, Thenkasi.
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C.R.P.(MD).No.2065 of 2018
2. The petitioner herein is the 6th defendant. The respondents 1 to 8
herein are the plaintiffs, and the respondents 9 to 13 are the defendants 1 to 5
before the Court below.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. The short facts which give rise to the instant Civil Revision Petition
are that the respondents 1 to 8/plaintiffs have filed the suit in O.S.No.192 of
2018 before the Principal District Munsif Court, Tenkasi for the relief of
permanent injunction not to register the sale deed stands in the name of the
petitioner herein, and not to disturb the peaceful possession.
5. The learned Senior Counsel appearing for the petitioner drew the
attention of this Court in respect of the plaint, and would submit that the
respondents herein derived title from one Chandra, who is the daughter of
Arunachala Nadar, and that the said Chandra has already filed a suit for
declaration declaring her right in respect of the very same property against the
predecessor in title of the petitioner Mr.Draviyam in O.S.No.363 of 2011 and
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C.R.P.(MD).No.2065 of 2018
also sought for the relief of possession. It appears from the records, that on
18.01.2017, the suit was dismissed rejecting the claim of the respondents
herein. In the meanwhile, there was certain sale deeds in the name of the
respondents herein dated 02.07.2012, 06.06.2012, 19.07.2012 and
17.10.2013. It is not in dispute that the suit property of the suit in O.S.No.192
of 2018 and the suit property in O.S.No.363 of 2011 are one and the same.
6. The learned Senior Counsel appearing for the petitioner would
submit that when in the earlier suit, the predecessor in title of the respondent
namely one Ms.Chandra title was disbelieved, and that when she lost the suit
through the above title suits, she cannot give a better title to the respondents
herein. The learned Senior Counsel would submit that, the suit filed by the
respondents herein is hit by the principle of res judicata and would also come
within the definition of re-litigation. It is the submission of the learned Senior
Counsel that such re-litigation gives right to file an application directly before
this Court to strike off the plaint.
7. In this regard, the learned Senior Counsel has relied upon the
following four judgments:
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C.R.P.(MD).No.2065 of 2018
(i) 2009 (5) CTC 710 (Tamil Nadu Handloom Weavers' Co-operative
Society, representing by its Managing Director vs. S.R.Ejaz, represented by
his Power Agent, Muralidhar T.Balani)
(ii) 2010 (4) CTC 690 (Southern and Rajamani Transport Private
Limited, represented by its Director and 33 others vs. R.Srinivasan and
others)
(iii) 2021 (1) MLJ 688 (V.S.P.Sivan and others vs. Balashanmugam
and others)
(iv)2023 (4) MLJ 305 (C.S.Balakrishnan and others vs. T.Amudan
Antony and others)
8. Per contra, the learned counsel appearing for the respondents would
vehemently submit that the very suit in O.S.No.192 of 2018 was filed during
the pendency of the earlier suit in O.S.No.363 of 2011, and that they sought
for the relief of permanent injunction in respect of the different cause of
action. Therefore, the judgment and decree of the earlier suit in O.S.No.363
of 2011 cannot be res judicata, and also cannot be construed the instant suit
as re-litigation. In support of the defence, the learned counsel appearing for
the respondents has relied upon the judgment of the Hon'ble Supreme Court
in 2023 Live Law (SC) 261 in Civil Appeal No.10215 of 2011, dated
29.03.2023 (Shivashankara and another vs. H.P. Vedavyasa Char).
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C.R.P.(MD).No.2065 of 2018
9. This Court has given anxious consideration to the submissions of the
learned counsels on either side.
10. In order to decide the issue, it is incumbent upon this Court to find
out whether the principle of res judicata is applicable to the instant case or
not. Hence in order to understand the issue, more lucidly are to have ready
refence, Section 11 of C.P.C is extracted 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.
11. According to Section 11 of C.P.C, in order to bring the earlier suit
as the res judicata for the subsequent suit, the issue should be directly and
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C.R.P.(MD).No.2065 of 2018
substantially same issue, and that the suit should also between the same
parties or against whom they or any of them claim, litigating under the same
title. In this case, it is the submission of the learned Senior Counsel that in the
subsequent suit in O.S.No.192 of 2018, the plaintiffs therein/respondents 1 to
8 herein are litigating right and title through the title of one Chandra,
whereas, the said Chandra's title was rejected in O.S.No.363 of 2011.
12. This Court has perused the judgment of the earlier suit in O.S.No.
363 of 2011, wherein, the predecessor in title of the petitioner herein one
Draviyam was added as the first defendant and ultimately, the suit was
dismissed on 18.01.2017. Therefore, it is amply clear that Chandra's title was
disbelieved by this Court as against Mr.Draviyam. Thus, she cannot have any
right and title over the suit property. Though the sale deed was executed by
Chandra during the pendency of the said suit, the same will not keep the
respondents herein in any better position on the simple reason that they
cannot take advantage of their own fault as they ventured upon to purchase
the property during pendency of the suit.
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13. At this juncture, the learned Senior Counsel for the petitioner
referred the judgment of this Court reported in 2010 (4) CTC 690 (Southern
and Rajamani Transport Private Limited and 33 others vs. R.Srinivasan
and others). The relevant paragraph No.32 is as follows:
32. It has already been assorted the
circumstances under which Article 227 of the
Constitution of India can be invoked by a High
Court. In the instant case, a grave injustice has
been done to the revision petitioners/defendants
1, 2, 3, 5, 6, 8 to 24 and 26 to 37 by way of
impleading them as parties to Original Suit No.
3 of 2010, even though there is no nexus betwixt
them and the first respondent/plaintiff. Of
course it is true that an efficacious relief is
available under Order 7 Rule 11 of the Code of
Civil Procedure, 1908. But at the same time,
since miscarriage of justice as well as injustice
have been caused to the revision
petitioners /defendants 1, 2, 3, 5, 6, 8 to 24 and
26 to 37, their approach by way of filing the
present civil revision petition to the High Court
so as to ventilate their grievance is legally
maintainable. Therefore, viewing from any
angle, the entire argument advanced by the
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C.R.P.(MD).No.2065 of 2018
learned counsel appearing for the first
respondent/plaintiff is sans merit, whereas the
argument advanced by the learned Senior
Counsel appearing for the revision
petitioners /defendants 1, 2, 3, 5, 6, 8 to 24 and
26 to 37 is really having subsisting force.
(Emphasis supplied by this Court)
14. The learned Senior Counsel for the petitioner also relied upon the
judgment of this Court reported in 2021 1 MLJ 688 (V.S.P.Sivan and others
vs. Balashanmugam and others). Paragraph Nos.16 to 18 are as follows:
16. The issue in the present suit has already been
decided and reached finality. If at all there is any
grievance for the appellants as to the above judgment,
the only remedy available for them is to file an appeal
against the said judgment. No re-litigation can be
allowed by way of filing an another suit seeking to set
aside the above judgment.
17. In this regard, it is relevant to refer the
judgment in T.Arivanandam Vs. T.V.Satyapal reported
in AIR 1977 SC 2421, wherein the Honourable
Supreme Court has held as follows:-
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C.R.P.(MD).No.2065 of 2018
“Here is an audacious application by a
determined engineer of fake litigations asking for
special leave to appeal against an order of the High
Court on an interlocutory application for injunction.
The sharp practice or legal legerdemain of the
petitioner, who is the son of the 2nd respondent,
stultifies the court process and makes decrees with
judicial seals brutum fulmen. The long arm of the law
must throttle such, litigative caricatures if the
confidence and credibility of the community in the
judicature is to survive."
18. In the judgment in K.K.Modi Vs. K.N.Modi
reported in 1998-3- SCC-573, the Honourable Supreme
Court has held as follows :-
“One of the examples cited as an abuse of the
process of the Court is re-litigation. It is an abuse of
the process of the Court and contrary to justice and
public policy for a party to re- litigate the same issue
which has already been tried and decided earlier
against him. But if the same issue is sought to be re-
agitated, it also amounts to an abuse of the process of
the court. A proceeding being filed for collateral
purpose, or a spurious claim being made in litigation
may also in a given set of facts amount to an abuse of
the process of the Court.”
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15. The learned Senior Counsel for the petitioner further relied upon
the judgment of this Court reported in (2023) 4 MLJ 305 (C.S.Balakrishnan
and others vs. T.Amudan Antony and others). Paragraph No.25.1 is as
follows:
“25.1 The doctrine of res judicata has
always been understood as a mixed question of
law and fact, and ordinarily when it is pleaded,
trial is advised as an ideal option. The doctrine
of res judicata is governed by five components:
(a) that the second suit must be between
the same parties as in the first suit, or between
those who claim under them;
(b) that it must be litigated under the same
title as was in the earlier suit;
(c) that the issue in the second suit must
have been directly and substantially in issue in
the earlier suit, or to state it differently,
indispensable for a decision in the former suit;
(d) that the said issue must have been
decided by a court of competent jurisdiction in
the former suit; and
(e) that such decision must have attained
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finality. Each of these aspects are rooted in
facts, and they are tested on a plane of law on
res judicata.
Of these five factors, (a), (b), (d) and (e)
can be ascertained by a mere reading of the
pleadings and the judgement in the former suit
and the pleadings of the present suit, and this
precisely what the Court does, with or without
trial, when it enquires whether res judicata
applies. And, where there is a dispute as to
whether an issue in the present suit was directly
and substantially in issue in a former suit, or,
was it incidental and ancillary in issue, there
may be a need for arguments, still what gets
subjected to scrutiny again are the pleadings in
the former suit, the decision on the issue in the
former suit, and the pleadings and the reliefs
sought in the second suit. When the pleadings
and the judgements in the former suit and the
pleadings of the present suit are made available,
mere arguments on them is adequate to decide
the issue. The trial, therefore, will involve no
more than a formal admission of indisputable
documents namely the pleadings and the final
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C.R.P.(MD).No.2065 of 2018
judgement in the earlier suit in evidence, and
there is no need for an elaborate oral evidence,
for an input of a witness on the legal effect of a
finding in a former case is of the least
consequence to the court. This can apply in
equal force even if constructive res judicata is
pleaded, since all that is required to be probed
then will be, whether the plea taken in the
second suit was available to a party in the first
suit.”
From the harmonious reading of the above judgments, what emerges is that
the “ingenuity” of the pleadings of the parties should not be permitted to have
a re-litigation on the issue.
16. However, the learned counsel appearing for the respondents would
invite the attention of this Court in respect of the judgment of the Hon'ble
Supreme Court in 2023 Live Law (SC) 261 in Civil Appeal No.10215 of
2011, dated March 29, 2023 (Shivshankara and another Vs.H.P.Vedavyasa
Char) and would submit that they are seeking a different relief in their
subsequent suit. But the contention of the learned counsel for the respondents
could not be accepted as their predecessor's in title and possession was
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disbelieved by the Court below in O.S.No.363 of 2011.
17. Therefore, this Court is of the firm view that the instant suit in
O.S.No.192 of 2018 would come within the definition of the re-litigation.
Therefore, to meet the ends of justice, this Court is of the view that this is the
fit case where the power under Article 227 of the Constitution of India could
be exercised by allowing this petition.
18. In the result, this Civil Revision Petition stands allowed. The Court
below is directed to strike off the plaint in O.S.No.192 of 2018 from the file
of the Principal District Munsif, Thenkasi. There shall be no order as to costs.
Consequently connected Miscellaneous Petition is closed.
21.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.R.P.(MD).No.2065 of 2018
To
1. The Principal District Munsif,
Thenkasi.
2. The Sub-Registrar,
Office of the Sub Registrar,
Pavoorchathiram,
Kallorani Village,
Tenkasi Taluk.
3.The District Registrar (Admin)
Office of the District Registrar,
Near RTO Office,
Madurai Road, Tenkasi.
4. The Deputy Inspector General of Registration,
District Collectorate,
Tirunelveli District.
5. The Inspector General of Registration,
No.100, Santhome High Road,
Chennai – 28.
6. The District Collector,
Tirunelveli.
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C.R.P.(MD).No.2065 of 2018
C.KUMARAPPAN,J.
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C.R.P(PD)(MD)No.2065 of 2018
21.08.2023
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