Madras High Court
Uma Shankar vs Oriental Bank Of Commerce on 6 February, 2023
CRP.No.1856 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.02.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.1856 of 2019 and
CMP.No.12263 of 2019
Uma Shankar ... petitioner
Vs.
1.Oriental Bank of Commerce, Main Branch,
Rep. by its Manager-legal having office at
Jaya Enclave, Avinashi Road,
Coimbatore
2.S.Jayakumar ... Respondents
PRAYER:
Civil Revision Petition filed under Article 227 of the Constitution of India to
set aside the order and decree dated 08.04.2019 in IA.No.1253 of 2018 in
OS.No.3053 of 2013 on the file of II Additional District Munsif of Coimbatore.
For Petitioner : Mr.R.Raja Rajan
For Respondents
For R1 : Mr.S.K.Srinivasan
For R2 : No appearance
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CRP.No.1856 of 2019
ORDER
This civil revision petition has been filed to set aside the order and
decree dated 08.04.2019 in IA.No.1253 of 2018 in OS.No.3053 of 2013 on the
file of II Additional District Munsif of Coimbatore, thereby allowed the petition
filed to take the issue of jurisdiction as a preliminary issue.
2. The petitioner is the plaintiff and the first respondent is the second
defendant in the suit filed by the petitioner for permanent injunction. The case
of the petitioner is that the suit property was leased out in his favour by the
second respondent herein for residential purpose by the lease deed dated
03.04.2009 on 'boghyam' for a sum of Rs.10,00,000/-. From the date of the
lease deed, the petitioner is in possession and enjoyment of the suit property.
While being so, the first respondent herein and their officers came to the suit
property on 17.10.2013 and pressurised the petitioner to vacate the suit
property. Thereafter the petitioner came to know about the existence of the
mortgage between the respondents 1 and 2 herein in respect of the suit property.
Further averred that the said mortgage entered between the first and second
respondents is only after the petitioner is holding over the possession of the suit
property based on the 'boghyam' deed dated 03.04.2009.
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CRP.No.1856 of 2019
2.1 The first respondent herein resisted the suit by way of filing written
statement stating that the trial court has no jurisdiction to entertain the suit since
the first respondent has already initiated proceedings under SARFAESI Act as
against the second respondent herein and his property including the suit
schedule property. Therefore, as per the provision under Section 34 of the said
Act, the civil court has no jurisdiction to entertain the suit. In fact, the first
respondent issued possession notice under Section 13(2) of the said Act and e-
auction for sale of the property was also published in a daily newspaper.
Thereafter, public notice was issued on 06.04.2013 cautioning the public not to
deal with the said property. Original title deeds were deposited by the second
respondent herein with the first respondent on 02.04.2009. However, the very
next day, in order to curtail the rights of the first respondent, the petitioner and
the second respondent entered into false 'boghyam' deed and filed the present
suit. While pending the suit, the first respondent filed petition for rejection of
plaint under Order 7 Rule 11 of CPC. However, it was dismissed. Again the first
respondent filed petition under Order 14 Rule 2 read with Section 151 of CPC
to take up the issue of jurisdiction as preliminary issue before deciding the main
issue in the suit, which was allowed. Therefore, the present civil revision
petition has been filed.
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CRP.No.1856 of 2019
3. The learned counsel for the petitioner would submit that the
present application is directly hit by the principle of res judicata since already
the first respondent filed petition for rejection of plaint under Order 7 Rule 11 of
CPC on the very same ground. Only on the ground of jurisdiction, application
was filed for rejection of plaint. After dismissal of the said application, the first
respondent did not choose to file any appeal or revision. Instead of filing appeal
or revision, the first respondent had chosen to file application to decide the issue
of jurisdiction as preliminary issue in the suit. In support of his contention, he
relied upon the judgment of the Hon'ble Supreme Court of India in the case of
Satyadhyan Ghosal and others Vs. SM.Deorajin Debi and another reported in
1960 AIR 941, in which the Hon'ble Supreme Court of India held that the
principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial court or a higher court
having at an earlier stage decided a matter in one way will not allow the parties
to re-agitate the matter again at a subsequent stage of the same proceedings.
Does this however mean that because at an earlier stage of the litigation a court
has decided an interlocutory matter in one way and no appeal has been taken
therefrom or no appeal did lie, a higher court cannot at a later stage of the same
litigation consider the matter again.
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CRP.No.1856 of 2019
4. The Hon'ble Supreme Court of India and this Court repeatedly held
that the principles of res judicata does not apply to the interlocutory
application. In this regard, the learned counsel for the respondent relied upon
the judgment of the Hon'ble Supreme Court of India in the case of Mathura
Prasad Bajoo Jaiswal and others Vs. Dossibai N.B.Jeejeebhoy reported in
1971 AIR 2355, in which the Hon'ble Supreme Court of India held that a
question relating. to the jurisdiction of a Court cannot be deemed to have been
finally determined by an erroneous decision of the Court. If by an erroneous
interpretation of the statute the court holds that it has no jurisdiction, the
decision will not, operate as res judicata. Similarly by an erroneous decision if
the Court assumes jurisdiction which it does not possess under the statute, the
decision will not operate as res judicata between the same parties, whether
the cause of action in the subsequent litigation is the same or otherwise.
Therefore, in the case on hand, the issue of jurisdiction has been questioned by
the first respondent herein and the suit has been filed for bare injunction.
Therefore, the issue of jurisdiction has to be decided as a preliminary issue and
the court below rightly allowed the application. As such, this Court finds no
infirmity or illegality in the order passed by the court below.
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CRP.No.1856 of 2019
5. Accordingly, this civil revision petition is dismissed. Consequently,
connected miscellaneous petition is closed. There shall be no order as to costs.
06.02.2023
Speaking/non-speaking
Index : Yes/No
Internet : Yes
lok
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CRP.No.1856 of 2019
G.K.ILANTHIRAIYAN, J.
lok
To
1.The II Additional District Munsif of Coimbatore
https://www.mhc.tn.gov.in/judis
CRP.No.1856 of 2019
2.Manager,
Oriental Bank of Commerce, Main Branch,
legal having office at
Jaya Enclave, Avinashi Road,
Coimbatore
CRP.No.1856 of 2019
06.02.2023
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