Madras High Court
Kaveryammal(Died) vs Munusamy on 7 December, 2023
SA.No.1538 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.1538 of 2008
1. Kaveryammal(Died)
2. Chinnammal
3. Shanmugam
4. Subbulakshmi
5. Rajeswari
6. Umamaheswari
7. Mouleeswaran
... Appellants
( Appellant 4 to 7 brought on record as LRs of the
deceased first appellant viz Kaveriammal vide Court
order dated 23.12.2021 made in C.M.P.Nos19708,19712
and 19713 of 2021 by JNBJ)
- Vs -
1.Munusamy
2. Seetha(deceased)
3.Jaya
4. Radhamani ... Respondents
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1/9
SA.No.1538 of 2008
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the Judgment and decree dated 23.08.2007 in A.S.No.3 of 2006 on
the file of the Court of Additional District Court ( Fast Track Court No.2)
Gobichettipalayam reversing the Judgment and decree made in O.S.No.4 of
2001 on the file of the First Additional Sub Court, Gobichettipalayam.
For Appellants : Mrs G. Sumitra for Mr.R.T.Duraisamy
For Respondents 1,3 and 4 : Mr. B. Ramkumar
for M/s M.Narayanaswamy
R2 : died
JUDGMENT
The instant second appeal has been filed at the instance of the
plaintiffs. The respondents are the defendants before the Trial Court.
2. For the sake of convenience, the parties will be referred according to
their litigative status before the Trial Court.
3. The facts leading to filing of the suit are as follows:-
There was some issue in respect of the immovable property between
the plaintiffs and the defendants. There were some previous suits between the
plaintiffs and the defendants. According to the plaintiffs, taking vengeance
against their success in the suits and also taking the vengeance against the
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plaintiffs' status in the society, the defendants had shown animosity and on
04.07.2000, the defendants used filthy language and also by gesture, the
first defendant committed obscenity thereby the plaintiffs were been
humiliated which had caused a mental agony. Therefore, they had come
forward with the suit claiming a sum of Rs.1,25,000/ towards damages.
4.The said suit was resisted by the defendants by disputing all the
allegations. According to them, the plaintiffs are influential persons in the
society and taking advantage of the same and to grab the property of the
defendants, the plaintiffs filed such a false suit.
5. Before the Trial Court, the plaintiffs examined three witnesses as
P.W.1 to P.W.3 and 11 documents were marked as Ex.A1 to A11. On behalf
of the defendants, neither any document was filed nor any witness was
examined. The Trial Court, after having considered the oral and documentary
evidence of the plaintiffs, decreed the suit granting damages to the tune of
Rs.75,000/- to the plaintiffs. Aggrieved by the Judgment of the Trial Court,
the defendants preferred an appeal before the First Appellate Court. The First
Appellate Court, on the finding that there was no criminal complaint filed in
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respect of the incident disbelieved the case of the plaintiffs and allowed the
appeal, thereby dismissed the suit. Challenging the Judgment of the First
Appellate Court, the plaintiffs are before this Court.
6. During the pendency of this appeal, the first appellant died and her
legal heirs were brought on record. The second respondent also died during
the pendency of this appeal and her legal heirs were already on record as R1
and R4. The memo filed was also recorded.
7. The learned counsel for the appellants vehemently submits that the
nature of incident has been proved through the witnesses, that the proof
before the Civil Court is only on preponderance of probabilities and that by
examining P.W.1 to P.W.3, the plaintiffs proved the occurrence as well as
mental agony and humiliation suffered by the plaintiffs.
8. However, the learned counsel for the respondents/defendants would
contend that there was a long delay between the alleged occurrence and the
filing of the suit and that no police complaint was filed. Therefore, the case
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put fourth by the plaintiffs absolutely lacks spontaneity. Therefore, it is too
hard to believe the case of the plaintiffs. Hence, the findings recorded by the
First Appellate Court are liable to be confirmed.
8.This Court has given its anxious consideration to either side
submissions.
9. Now the sum and substance of the submissions of the counsel for
the appellant is that the proof before the Civil Court is only on preponderance
of probabilities and by examining P.W.1 to P.W.3, the case has been proved.
10. This Court has perused the evidence of the P.W.1 to P.W.3
wherein this Court finds that there are certain contradictions between the
witnesses in respect of the nature of narration. It is true that the proof before
the Civil Court is only on preponderance of probabilities and that doesn't
mean that whatever the plaintiffs say has to be accepted without looking into
the other circumstances.
11. Here, the circumstances, which impelled the First Appellate Court
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to disbelieve the case of the plaintiffs is the long delay between the
occurrence and the filing of the suit.
12. This Court has further gone into the issue in depth and while doing
so it is found that the witnesses were examined during December 2005 in
nearly after a period of 5 years from the date of incident. Therefore, though
the Trial Court rendered the findings based upon the evidence of the
witnesses, who were examined after a period of 5 years, this Court is afraid to
accept the findings recorded by the Trial Court in view of the absolute lack of
spontaneity in respect of the nature of occurrence. In this regard, it is useful
to rely upon the findings recorded by the First Appellate Court wherein in
categorical terms it has been held that there were no documents submitted by
the plaintiffs as to the filing of any police complaint.
13.In fact, it is an admitted case that the plaintiffs did not give any
police complaint against the defendants. Therefore, when the plaintiffs did
not file any police complaint immediately after the occurrence, this Court
apprehends the statements made by the plaintiffs witnesses after a period of
5 years, as it lacks spontaneity and there is a possibility of improvement.
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Apart from that, when the very nature of occurrence is disbelieved, this Court
is of the firm view that the claim made by the appellants seeking damages for
humiliation and defamation must fail. Therefore, from the submissions made
by the learned counsel for the appellants, this Court does not find any ground
to deviate from the findings recorded by the First Appellate Court.
14.Hence, the second appeal is dismissed and the Judgment of the First
Appellate Court is confirmed. No costs.
07.12.2023
Index : Yes/No
Internet:Yes/No
Speaking Order : Yes/No
smn
Note: The Registry is directed to carry out
necessary amendment before issuing order copies
To
1.The Additional District
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( Fast Track Court No.2, Gobichettipalayam)
2. The Additional Sub Court Gobichettipalayam
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C.KUMARAPPAN, J
smn
07.12.2023
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