Madras High Court
P.Vadivelu vs Smt.Girija Balasubramaniam on 3 August, 2023
C.R.P. No.2349 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P. No.2349 of 2021
and C.M.P.No.17806 of 2021
1.P.Vadivelu
2.S.Kanniappa Naicker .. Petitioners
vs.
Smt.Girija Balasubramaniam .. Respondent
Petition filed under Article 227 of the Constitution of India,
praying to set aside the fair and decreetal order made in I.A.No.1 of 2019
in O.S.No.27 of 2011 dated 09.07.2021 against dismissal of the Rejection
of Plaint petition filed by the petitioners.
For Petitioners : Mr.G.Parthasarathy
For Respondent : Mr.S.Saravanakumar
ORDER
The Civil Revision Petition arises against the order passed by the
learned Subordinate Judge, Tiruttani in I.A.No.1 of 2019 in O.S.No.27 of
2011 dated 09.07.2021.
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C.R.P. No.2349 of 2021
2. The suit in O.S.No.27 of 2011 had been originally presented for
Bare Injunction. An application for amendment was taken up for
Declaration of title and it was allowed, against which, a revision was
preferred before this Court in C.R.P.No.4204 of 2012. The said revision
was allowed on 07.07.2017, restoring the suit back to its original position
of being a suit only for Permanent Injunction.
3. The defendants took out an application, stating that the suit is
barred by res judicata and for non-description of properties as required
under Order 6 Rule 4 of C.P.C. The basis of res judicata is that,
previously the defendants had filed O.S.No.1032 of 1987 on the file of
the learned District Munsif Court, Tiruttani for Partition and that ended
in a preliminary decree and a final decree was also passed on 16.12.2006.
According to the revision petitioners, it is for the very same suit property
that a fresh suit for permanent injunction has been filed by the 13th
defendant, who had been subsequently impleaded in the final decree
proceedings.
4. According to the learned counsel for the revision petitioners, this
is an abuse of process of Court. The same issue is being litigated upon ad
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C.R.P. No.2349 of 2021
nauseam and therefore, the plaint requires to be rejected. Apart from that,
the learned counsel for the revision petitioners said that since there is
non-description of properties, it shows that the plaintiff is not in
possession and even on that score, the plaint has to be rejected.
5. The learned counsel for the respondent would state that either
grounds did not fall within the scope of Order 7 Rule 11 of C.P.C and the
plaint is not liable to be rejected.
6. Heard both sides and carefully perused the records.
7. The suit is one for Permanent Injunction. The plaintiff claims
that she is in possession of the property. Whether she is in possession of
the property or not is the matter, which has to be gone into only at the
time of trial. Plea of res judicata and lack of pleadings are not the
grounds to reject the plaint under Order 7 Rule 11 of C.P.C. The suit
being one for Bare injunction, it necessarily has to go through the usual
trial. However, the learned trial Judge has given a finding that the suit is
not barred by res judicata. That is not the scope of Order 7 Rule 11 of
C.P.C. At that stage, a court only takes the plaint to be true and decides
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C.R.P. No.2349 of 2021
on that issue. Whether the suit is barred by res judicata or not can be
decided only after the pleadings, issues, the judgment and decree in the
previous suit are marked in evidence and compared with the present suit.
Therefore, the finding that the suit is not barred by res judicata is vacated
and it shall be decided by the Court at the time of final disposal.
8. The learned counsel for the respondent brings to my notice that
during the pendency of the revision, suit should be proceeded further.
Evidence of the plaintiff & defendant was closed and it is now reserved
for judgment.
9. The fact is that due to the pendency of the revision, the parties
did not fully co-operate for the disposal is the matter for concern. That
does not mean that the Court should proceed further and snuff out the
rights of the defendants. This is especially so, when he projects the
judgment and decree in his favour.
10. In the interest of justice and by consent of parties, evidence of
P.W.1 is re-opened. P.W.1 shall be present in Court on 29.08.2023. On
that day, the learned counsel for the Civil Revision Petitioners /
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C.R.P. No.2349 of 2021
defendants shall cross-examine P.W.1. The cross-examination shall
commence on 29.08.2023 and completed it by 31.08.2023. He shall
immediately commence his evidence on 04.09.2023 on the basis of the
proof affidavit already filed.
11. The learned counsel for the respondent/plaintiff states that he
shall cross-examine the defendants between 11.09.2023 and 15.09.2023.
The evidence of both parties shall be closed on 18.09.2023. The trial
Court is requested to pronounce the judgment after hearing the arguments
on or before 13.10.2023.
12. With the above directions, the Civil Revision Petition stands
disposed of. No costs. Consequently, connected miscellaneous petition is
closed.
03.08.2023
Index:Yes/No
Neutral Citation:Yes/No
kak
To
The Subordinate Judge, Tiruttani.
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C.R.P. No.2349 of 2021
V. LAKSHMINARAYANAN, J.
kak
C.R.P.No.2349 of 2021
03.08.2023
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