Madras High Court
Malathi Pandurang vs Sri Singeri Mutt on 2 June, 2023
A.S.No.201 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2023
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.201 of 2010
Malathi Pandurang .. Appellant
Versus
1. Sri Singeri Mutt, Sringeri
represented by its Administrator,
Sringeri, Chikmagalore District,
Karnataka State.
2. N.N.Murthy
3. Leela Ramnath
4. H.N.Varadaraj
5. V.Nandakumar
6. Padma Sundararaghavan
7. Gayathri Ramaswami .. Respondents
Prayer : Appeal Suit filed under Section 96 and Order XLI Rules 1 and 2 of
Civil Procedure Code against the order of the learned Principal District
Judge, Coimbatore made in unnumbered O.S.CFR.No.17705 of 2009, dated
19.11.2009 rejecting the plaint.
For Appellant : Mr.I.Abrar Mohamed Abdullah
For Respondents : No Appearance for RR-2 to 5
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JUDGMENT
This Appeal Suit is filed against the judgment and decree, dated
19.11.2009, in and by which, the plaint filed by the plaintiff in
O.S.(CFR).No.17705 of 2009, was rejected by the Trial Court.
2. The suit is filed with a prayer for partition to divide the suit
property into six equal shares and to allot 1/6th share to the plaintiff. The
case of the appellant / plaintiff is that earlier, in respect of the properties of
the family members, there was a suit for partition in O.S.No.867 of 1995 on
the file of the learned Subordinate Judge, Coimbatore, in which the present
suit property was also a subject matter as Schedule-III therein. The said suit
was referred for arbitration and the learned Sole Arbitrator passed a
preliminary award on 25.08.2004. Aggrieved by the same, an application
under Section 34 of the Arbitration and Conciliation Act, 1996 in
A.O.P.No.197 of 2004 was filed and the learned Additional District Judge,
Coimbatore, by an order, dated 18.07.2008, dismissed the same. Aggrieved
thereby, C.M.A.No.2797 of 2008 was filed before this Court and a Division
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A.S.No.201 of 2010
Bench of this Court, by an order, dated 22.12.2008, set aside the award and
remanded the matter back to the learned Arbitrator.
3. After the remand, in respect of the present property, it was pleaded
before the learned Arbitrator that the property was bequeathed in favour of
Sringeri Mutt, by a Will, dated 08.01.1992 and the Will was also contested.
The appellant / plaintiff also sought to implead the first respondent /
defendant in the present suit namely, Sringeri Mutt in the arbitration
proceedings before the learned Arbitrator. The learned Arbitrator dismissed
the impleading application on 07.05.2009. Thereafter, a final award was
passed on 25.08.2004. In the said award, the Arbitrator held that as far as
the schedule property is concerned, he cannot decide the issue in the
absence of the Sringeri Mutt being a party to the arbitration and therefore,
the learned Arbitrator did not delineate any share in respect of the schedule
property and left the matter open by giving liberty to the appellant / plaintiff
to take appropriate proceedings for recovery of her share in the schedule
property is concerned. Therefore, the present suit is filed for partition in
respect of the suit schedule property.
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A.S.No.201 of 2010
4. The Trial Court, upon consideration of the case of the appellant /
plaintiff, had taken a view that since partition has been prayed in the earlier
suit in respect of the suit property also and that the same having been
referred to arbitration, even if the learned Arbitrator had dismissed the
application for impleading, the appellant / plaintiff's remedy is to file an
appeal as against the order of dismissal and the present suit is not legally
maintainable and rejected the plaint.
5. Heard Mr.I. Abrar Mohamed Abdullah, learned Counsel for the
appellant. There is no representation by the Learned Counsel who entered
appearance on behalf of the respondents 2 to 5. Even though notices were
served on the first and seventh defendants, they have not appeared before
this Court. On consideration of the grounds of appeal and the records of the
case and the submissions made by the learned Counsel for the appellant /
plaintiff, the point that arises for consideration is that whether or not the
Trial Court was right in rejecting the plaint in view of the earlier arbitration
proceedings ?
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A.S.No.201 of 2010
6. On a perusal of the plaint and the averments made therein, it is
averred that after the matter being referred by the Court, the learned
Arbitrator did not implead Sringeri Mutt as a party to arbitration as the
Sringeri Mutt was not a party in the Original Suit which was referred to him
for arbitration. In that view of the matter, it is contended in the plaint that
the learned Arbitrator has left the remedy open to the appellant / plaintiff to
seek recovery of 1/6th share inasmuch as the present suit property is
concerned. In that view of the matter, since the matter is not decided on
merits, it cannot be said that the present suit is barred on the principles of
res judicata. When there is no adjudication inter-parties on the issue as to
the validity of the Will by including the beneficiary of the Will as a party,
the matter remains undecided and it cannot be said that the suit is barred by
law. Since Sringeri Mutt is also not a party to the earlier proceedings, the
principles of constructive res judicata cannot also be applied. Therefore,
the Trial Court erred in rejecting the plaint as barred by law. In that view of
the matter, this Appeal Suit succeeds.
7. In the result,
(i) The Appeal Suit in A.S.No.201 of 2010 is allowed;
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A.S.No.201 of 2010
(ii) The judgment and decree, dated 19.11.2009 in
O.S.(CFR).No.17705 of 2009 is set aside;
(iii) O.S.(CFR).No.17705 of 2009 is restored to file to be proceeded
further in accordance with law;
(iv) Considering the fact that the suit is of the year 2009, the Trial
Court is directed to do the needful to proceed with the suit as expeditiously
as possible;
(v) There shall be no order as to costs.
02.06.2023
Index : yes
Speaking order
Neutral Citation : yes
grs
To
The Principal District Judge,
Coimbatore.
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A.S.No.201 of 2010
D.BHARATHA CHAKRAVARTHY, J.,
grs
A.S.No.201 of 2010
02.06.2023
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