Madras High Court
Sangeetha vs Panneerselvam @ Muthukrishnan on 18 July, 2023
C.R.P.(MD)No.2182 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 18.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.2182 of 2018
and
C.M.P.(MD)No.9724 of 2018
Sangeetha
... Petitioner / Petitioner / Plaintiff
Vs.
1.Panneerselvam @ Muthukrishnan
2.Chinnaiah
3.Shanmugham ... Respondents / Respondents /Defendants
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the fair and decretal order, dated 23.07.2018, passed in
I.A.No.984 of 2017, in O.S.No.26 of 2011, pending on the file of the
Additional District Munsif Court, Dindigul.
For Petitioner : Mr.S.Anand Chandrasekar
for M/s. Sarvabhauman Associates
For Respondents : Mr.H.Lakshmi Shankar for R2 & R3
: No appearance for R1
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2182 of 2018
ORDER
The instant Civil Revision Petition has been filed, against the
order, dated 23.07.2018, passed in I.A.No.984 of 2017, in O.S.No.26 of
2011, pending on the file of the Additional District Munsif Court, Dindigul.
2. The revision petitioner is the petitioner / plaintiff and the
respondents herein are the respondents / defendants before the trial Court.
The revision petitioner filed a suit for the relief of permanent injunction on
the ground that she purchased the property, by virtue of sale deed, dated
20.11.2009 and 14.12.2009 from one Magudeeswaran and Dhandapani,
who are the sons of, Late. Palanisamy Mooppanar through his first wife
Muthammal. According to the petitioner, their vendors have handed over
the possession of the property to them and in pursuance thereof, she has
been in actual physical possession and enjoyment of the suit property.
3. During the pendency of the suit, the petitioner / plaintiff has
filed an application under Sections 10 and 151 of the Civil Procedure Code
to stay the suit in O.s.No.26 of 2011 on the ground that her predecessors in
title has filed a suit in O.S.No.1721 of 1988 in respect of the very same suit
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C.R.P.(MD)No.2182 of 2018
property seeking for the relief of declaration and permanent injunction and
that in the said suit, her predecessors in title was granted only the relief of
declaration and in respect of injunction, the suit was dismissed. The learned
petitioner counsel would further submit that against the order of rejection
of the relief of injunction, an appeal suit was filed by them in A.S.No.490
of 2004. In which, the First Appellate Court, on 17.07.2008, has reversed
the findings of the trial Court and granted permanent injunction in favour
of the petitioner's predecessors in title. The learned petitioner counsel
would further submit that, after the order of the first Appellate Court, the
respondents / defendants, who are also the defendants in the earlier suit,
have filed a Second Appeal in S.A.(MD)No.119 of 2011, and the same is
still pending before this Court. Therefore, the petitioner would submit that
in respect of the relief of declaration, which was granted by the Court in the
previous suit, the same has reached its finality, and only in respect of the
relief of injunction now the Second Appeal is pending.
4. The learned counsel for the petitioner would submit that since
the petitioner had derived possession through her predecessor in title,
whose second appeal in S.A.(MD)No.119 of 2011 is pending and that the
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C.R.P.(MD)No.2182 of 2018
issue involved in the second appeal is directly and substantially similar to
issue of the petitioner's newly instituted suit in O.S.No.26 of 2011.
Therefore, contended that the instant suit in O.S.No.26 of 2011 is to be
stayed.
5. The said application was stoutly objected by the learned
counsel for the respondents on the ground that the issue involved in S.A.
(MD)No.119 of 2011 is not directly and substantially, in issue in the instant
suit in O.S.No. 26 of 2011, therefore, he would submit that the very
application itself is not maintainable.
6. After considering the submission made on either sides, the
learned trial Judge, has come to a conclusion that the title is not an issue
and only possession is an issue, and that it is for the plaintiff to prove the
possession independently, so as to get an order of permanent injunction in
the suit. Therefore, contended that the issue involved in S.A.(MD)No.119
of 2011 is no way direct or similar to the issue, of the subsequently
instituted suit. Therefore, ultimately dismissed the application.
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C.R.P.(MD)No.2182 of 2018
7. Aggrieved with the order of the learned trial Judge, the
petitioner /plaintiff is before the trial Court has come up with the instant
revision petition.
8. The learned counsel for the revision petitioner would
emphatically submit that, since the revision petitioner / plaintiff derived
possession only from her predecessors in title and where the issue of
possession is still sub-judiced before this Court, at the Second Appeal stage
any decision in the instant suit may lead to conflicting decision.
9. Per contra, the learned counsel for the respondents 2 and 3
would vehemently submit that the revision petitioner cannot be construed
as a lis pendens purchaser, and that the Second Appeal was filed within the
period of limitation and that the relief of injunction is the relief in
personam, hence prayed to dismiss the application.
10. I have given my anxious consideration to the either side
submission.
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C.R.P.(MD)No.2182 of 2018
11. The very submission of the learned counsel for the
respondents 2 and 3 is that, the relief of permanent injunction granted to the
predecessors in title of the petitioner would only a judgment in personam
the petitioner can't take advantage of the injunction of their predecessor in
title. Similarly the learned counsel for the respondents 2 and 3 would
submit that to have injunction, this petitioner has to prove her possession
and cause of action independently. The said argument is very much
appealing to this Court. It is settled law that whenever a plaintiff come
forward with a suit for permanent injunction, it is the duty for the plaintiff
to prove the actual possession, before the Court, while getting an order of
injunction. It is also relevant to mention here that the decisions of the
Second Appeal have no impact in respect of the possession and cause of
action of the plaintiff, since the Second Appeal is only considering the
possession in respect of the plaintiff's predecessors in title and not that of
the plaintiff. As such, apparently the decree in S.A.(MD)No.119 of 2011
cannot be the res judicata to the latter suit.
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C.R.P.(MD)No.2182 of 2018
12. At this juncture, it is useful to refer the judgment of the
Hon'ble Supreme Court reported in 2013-4-SCC-333 (Aspi Jal V. Khushroo
Rustom Dadyburjor). Wherein the Hon'ble Supreme Court has held that if
the plaintiff can get the same relief in the subsequent suit, if the earlier suit
has been dismissed, then the subsequent suit is not fit to be stayed. Put it
differently, if the final decision in the previously instituted suit is not res
judicata to the subsequently instituted suit, then Section 10 C.P.C will have
no application. The relevant portion of the judgment is as follows-
“ 11. In the present case, the parties in all the three
suits are one and the same and the court in which the first two
suits have been instituted is competent to grant the relief
claimed in the third suit. The only question which invites our
adjudication is as to whether “the matter in issue is also
directly and substantially in issue in previously instituted
suits”. The key words in Section 10 are “the matter in issue is
directly and substantially in issue in the previously instituted
suit”. The test for applicability of Section 10 of the Code is
whether on a final decision being reached in the previously
instituted suit, such decision would operate as res-judicata
in the subsequent suit. To put it differently one may ask, can
the plaintiff get the same relief in the subsequent suit, if the
earlier suit has been dismissed? In our opinion, if the answer
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C.R.P.(MD)No.2182 of 2018
is in affirmative, the subsequent suit is not fit to be stayed.
However, we hasten to add then when the matter in
controversy is the same, it is immaterial what further relief is
claimed in the subsequent suit.”
(Emphasis supplied by this Court)
Even in our case as discussed herein above, the petitioner will have her
relief of injunction subject to prove of her possession and cause of action,
notwithstanding, the final result of Second Appeal.
13. Therefore, the findings of the learned trial Judge that matter
in issue of the instant suit is not directly and substantially in issue in the
previously instituted suit and now pending at second appeal stage is
perfectly in order, and there is no manifest or apparent error in the order of
the learned trial Judge.
14. Hence, this Court is not inclined to interfere with the order of
the Court below. Hence, the instant Civil Revision Petition stands
dismissed. There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
NCC : Yes/No 18.07.2023
Index :Yes/No
Ls
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C.R.P.(MD)No.2182 of 2018
To
1.The Additional District Munsif Court,
Dindigul.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2182 of 2018
C.KUMARAPPAN.,J.
Ls
C.R.P(MD)No.2182 of 2018
18.07.2023
https://www.mhc.tn.gov.in/judis
