Madras High Court
Kannan vs D.Arunachalam on 20 January, 2023
S.A.No.1207 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1207 of 2006
1.Kannan
2.Pandurangan (Deceased)
3.Saroja
4.Neelavathi
5.Senthamizhselvan
6.Tamizhselvi ...Appellants
Vs.
D.Arunachalam ...Respondent
(6th appellant brought on record as LR of the deceased 2 nd appellant
vide order dated 12.09.2017 made in C.M.P.No.15702 to 15704 of
2017 in S.A.No.1207 of 2006).
1/17
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S.A.No.1207 of 2006
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree made in A.S.No.47 of
2005 on the file of the Principal Subordinate Judge, Virudhachalam
dated 27.09.2005 confirming the Judgement and Decree made in
O.S.No.83 of 2002 on the file of the District Munsif Cum Judicial
Magistrate Court, Thittakudi dated 29.11.2004.
For Appellants : Mr.V.Ayyadurai
Senior Counsel
For Mr.V.B.Perumal Raj
For Respondent : Mrs.A.Nilaphar
JUDGMENT
The defendants are the appellants before this Court challenging
the Judgement and Decree passed by the Principal Sub Court,
Virudhachalam in A.S.No.47 of 2005, in and by which the learned
Principal Sub Judge has confirmed the Judgement and Decree passed
by the learned District Munsif cum Judicial Magistrate, Thittakudi in
O.S.No.83 of 2002. The brief facts are as follows and the parties are
referred to in the same rank as before the Trial Court.
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S.A.No.1207 of 2006
2. The suit in question is filed to declare the suit property
(pathway) as common to both the plaintiff and the 1 st defendant and for
a consequential injunction restraining the defendants from interfering
with the plaintiff's usage of the said pathway.
3. The said pathway is a grama natham formed by the plaintiff
contributing 1 1/8 feet on his side and the 1 st defendant contributing 1 -
1/8 feet on his side. The length of the pathway is 57 feet and the
breadth is 2 ¼ feet.
4. The case of the plaintiff is that the right to enjoy the said
pathway has been reduced into writing on 31.01.1989 in an
unregistered agreement and they have been in enjoyment of the said
pathway for over decades. However, on account of recent difference of
opinion between the plaintiff and the 1st defendant, the 1st defendant
along with the other defendants had trespassed into the suit property on
01.02.2002 and tried to interfere with the plaintiff's enjoyment of the
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S.A.No.1207 of 2006
same. Therefore, the plaintiff has come forward with the suit in
question.
5. The 1st defendant had filed a written statement in which the
defendants had denied the averments contained in the plaint and they
had also contended that the plaintiff had filed an earlier suit in
O.S.No.202 of 2001 in respect of the very same pathway for bare
injunction. While that suit was pending, the plaintiff had filed the
instant suit. The defendants also raised a plea that the plaintiff had an
alternative pathway to reach the rear side of his property through his
house and it is this pathway that the plaintiff is using. That apart, the
defendant had contended that on 10.05.1995, the Special Thasildar had
granted patta under the updating survey schemes and they would state
that the plaintiff is trying to establish a new right.
6. Further, the plaintiff after obtaining an interim order in the
instant suit in I.A.No.429 of 2002 had withdrawn the earlier suit. The
defendants had contended that the suit in respect of the very same
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S.A.No.1207 of 2006
property is not maintainable.
7. The Trial Court had framed the following issues:
“1/tHf;F brhj;jpy; thjpf;F mDgtk;
vJt[k; ,y;iy vd;gJ cz;ikah>
2/thjp nfhUk; gupfhuk; bgw mUfuh>
3/ntW vd;d gupfhuk;> “
8. The plaintiff had examined himself as P.W.1, the 2nd defendant
was examined as P.W.2 and one Mahalingam was examined as P.W.3.
Ex.A.1 to Ex.A.7 were marked on the side of the plaintiff. The 1st
defendant had examined himself as D.W.1 and one Kannan son of
Sellamuthu as D.W.2.
9. The Trial Court on considering the evidence on record had
proceeded to decree the suit as prayed for. Aggrieved by the said
Judgement and Decree, an appeal was preferred by the defendants in
A.S.No.47 of 2005 before the Principal Sub Judge, Virudhachalam.
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S.A.No.1207 of 2006
The Lower Appellate Court also confirmed the Judgement and Decree
passed by the Trial Court.
10. Aggrieved by the same, the defendants are the appellants
before this Court and this Court was pleased to admit the above Second
Appeal on the following Substantial Question of Law:
“1.Whether the Judgement and Decree of both the
Courts below are liable to be set aside for want of
considering the vital issue as to maintainability of the suit
in terms of Section 10 of Code of Civil Procedure and on
erroneous finding as regards admissibility and reliability
of Ex.A.1 unregistered agreement especially when the
execution of the same was not duly proved?”
11. Mr.V.Ayyadurai, learned senior counsel appearing on behalf
of the defendants / appellants would rest his entire arguments primarily
on the fact that the plaintiff / respondent had earlier filed a suit for bare
injunction in O.S.No.202 of 2001 and that during the pendency of the
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S.A.No.1207 of 2006
said suit, present suit had been filed without seeking leave of the Court.
Therefore, it is the contention of the learned senior counsel that the
plaintiff cannot maintain the second suit. The learned senior counsel
would also contend that the plaintiff has filed a suit on the basis of
easement of grant, adverse possession and necessity. The learned
senior counsel would submit that the claim under both an easement of
grant and adverse possession are mutually contradictory.
12. The learned senior counsel would submit that the plaintiff
has, during his cross examination clearly, admitted the filing of the
earlier suit and the fact that the subject matter of both the suits are one
and the same. The learned senior counsel would further submit that the
plea of the present suit being barred by reason of the earlier suit has not
been considered by both the Courts below. Further, no issue with
reference to the same has been framed either by the Trial Court or by
the Lower Appellate Court. Therefore, the Judgement of the Courts
below have to be set aside.
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S.A.No.1207 of 2006
13. The learned senior counsel would also rely upon the
Judgement of the Andhra Pradesh High Court reported in 1997 SCC
Online AP 694 – Devarapu Narasimharao Vs. Yerrabothula Peda
Venkaiah and others, in support of his contention that the subsequent
suit will not lie unless and until liberty is obtained to institute a fresh
suit and the suit filed without such leave would definitely be hit by the
provisions of Order 23 Rule 1 (4) of the Code of Civil Procedure.
14. Per contra, Mrs.A.Nilaphar, learned counsel appearing on
behalf of the plaintiff would submit that this defense about the
maintainability of the suit is being seriously contested only before this
Court and there is no pleading to this effect. The written statement
does not convey the exact defense taken by the defendants in this
regard. The learned counsel would submit that despite taking a plea
that the subsequent suit which now the subject matter of the appeal is
not maintainable in the light of the filing of the earlier suit, the
pleadings in the earlier suit has not been filed by the defendants. In
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S.A.No.1207 of 2006
fact, the defendants have not marked any documents on their side and
their contentions are unsubstantiated pleadings. The learned counsel
would also rely upon the Judgement of the Hon'ble Supreme Court
reported in 1997 (1) SCC 99 - Bengal Waterproof Limited Vs.
Bombay Waterproof Manufacturing Company and another.
15. The learned counsel would further submit that the Courts
below after appreciating the evidence on record, which includes the
Advocate Commissioner's report, had arrived at a finding that the
pathway in question existed and that it was in the common enjoyment
of both the plaintiff as well as the defendants.
16. The learned counsel would therefore submit that once the
Courts below have appreciated the evidence on record and the
Judgement passed, this Court sitting in the Second Appeal cannot re-
appreciate the evidence. In support of the said argument, the learned
counsel would rely upon the Judgement of the Hon'ble Supreme Court
reported in 2006 (5) SCC 545 – Hero Vinoth (Minor) Vs. Seshammal.
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S.A.No.1207 of 2006
17. Heard the learned senior counsel for the appellants and the
learned counsel for the respondent.
18. The Substantial Question of Law refers to Section 10 of the
Code of Civil Procedure, which in my considered opinion is an error
since Section 10 of the Code of Civil Procedure contemplates the stay
of the subsequent suit. The arguments that have been advanced is that
the subsequent suit is barred under the provisions of Order 2 Rule 2
and Section 11 of the Code of Civil Procedure. Section 11 of the Code
of Civil Procedure would read 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
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been heard and finally decided by such Court.
Explanation I: The expression “former suit” shall
denote a suit which has been decided prior to the suit in
question whether or not it was instituted prior thereto.
Explanation II: For the purposes of this section, the
competence of a Court shall be determined irrespective of
any provisions as to a right of appeal from the decision of
such Court.
Explanation III: The matter above referred to must in
the former suit have bes alleged by one party and either
denied or admitted, expressly or impliedly, by the other.
Explanation IV: Any matter which might and ought
to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly
and substantially in issue in such suit.”
19. A reading of an Explanation I to Section 11 denotes that the
former suit must have been decided prior to the filing of the subsequent
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suit. In the instant case while the earlier suit was pending the
subsequent suit had been filed and further the earlier suit has not been
“heard and finally decided”. Further, as contemplated under Section
11 of the Code of Civil Procedure the earlier suit has been withdrawn
later.
20. As regards the contention that the subsequent suit is hit by
provisions of Order 2 Rule 2 of the Code of Civil Procedure it is to be
taken note that the defendants had not filed the pleading in the earlier
suit, so as to enable this Court to appreciate the arguments put forward
by them. The underlying principle of Order 2 Rule 2 of the Code of
Civil Procedure is that on the date of the filing of the former suit
whether the cause of action for subsequent suit had arisen? To
examine this, it is essential for the defendants to produce a copy of the
pleading in the earlier proceedings. In the instant case, the same has
not been produced by defendants. Infact, the defendants have not
chosen to file any documents to substantiate their contentions. In the
Judgement referred to by the learned counsel for the plaintiff, namely,
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S.A.No.1207 of 2006
1997 (1) SCC 99 – Bengal Waterproof Limited Vs. Bombay
Waterproof Manufacturing Company and another, the learned Judges
had referred to the Judgement of the Constitution Bench of the Hon'ble
Supreme Court reported as AIR 1964 SC 1810 - Gurbux Singh vs
Bhooralal, wherein the Bench had observed as follows:
“In order that a plea of a bar under 0rder 2. Rule
2(3), Civil Procedure Code should succeed the defendant
who raises the plea must make out (1) that the second suit
was in respect of the same cause of action as that on which
the previous suit was based, (2) that in respect of that
cause of action the plaintiff was entitled to more than one
relief, (3) that being thus entitled to more than one relief
the plaintiff, without leave obtained from the Court,
omitted to sue for the relief for which the second suit had
been filed. From this analysis it would be seen that the
defendant would have to establish primarily and to start
with, the precise cause of action upon which the previous
suit was filed, for unless there is identity between the cause
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S.A.No.1207 of 2006
of action on which the earlier suit was filed and that on
which the claim in the later suit is based there would be no
scope for the application of the bar. No doubt, a relief
which is sought in a plaint could ordinarily be traceable to
a particular cause of action but this might, by no means, be
the universal rule. As the plea is a technical bar it has to
be established satisfactorily and cannot be presumed
merely on basis of inferential reasoning. It is for this
reason that we consider that a plea of a bar under Order 2
Rule 2, Civil Procedure Code can be established only if the
defendant files in evidence the pleadings in the previous
suit and thereby proves to the Court the identity of the
cause of action in the two suits. It is common ground that
the pleadings in C.S. 28 of 1950 were not filed by the
appellant in the present suit as evidence in support of his
plea under Order 2 Rule 2, Civil Procedure Code. The
learned trial Judge, however, without these pleadings
being on the record inferred what the cause of action
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S.A.No.1207 of 2006
should have been from the reference to the previous suit
contained in the plaint as a matter of deduction. At the
stage of the appeal the learned District Judge noticed this
lacuna in the appellant's case and pointed out, in our
opinion rightly, that without the plaint in the previous suit
being on the record, a plea of a bar under 0rder 2 Rule 2,
Civil Procedure Code was not maintainable”
21. In the light of this authoritative pronouncement and the fact
that the defendants have not chosen to file the pleadings in the earlier
suit the plea of Order 2 Rule 2 and Section 11 of the Code of Civil
Procedure is not available to the defendants.
22. The plaintiff has proved the existence of a common pathway
and its usage by both the plaintiff and the defendants. The Advocate
Commissioner has also referred to the pathway and its physical features
all of which would go to show that the suit pathway is used as a
common pathway by both the plaintiff and the defendants.
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23. Therefore, I see no reason to interfere with the Judgements of
the Courts below and the Substantial Question of Law is answered
against the defendants. Accordingly, the Second Appeal is dismissed.
There shall be no order as to costs.
20.01.2023
Index : Yes/No
Internet : Yes/No
kan
To
1.The Principal Subordinate Judge,
Virudhachalam
2.The District Munsif Cum Judicial Magistrate Court,
Thittakudi
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S.A.No.1207 of 2006
P.T. ASHA, J,
kan
S.A.No.1207 of 2006
20.01.2023
https://www.mhc.tn.gov.in/judis
