Madras High Court
B.Gopinath vs J.Neelavathi on 6 August, 2024
C.R.P.PD.No.3510 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.08.2024
CORAM:
THE HONOURABLE MRS. JUSTICE R.KALAIMATHI
C.R.P.(PD).No.3510 of 2023
and
C.M.P.No.21915 of 2023
B.Gopinath ... Petitioner
Vs.
1.J.Neelavathi
2.Prabhu
3.Lakshmi ... Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair order and decreetal order dated
04.08.2023 passed in I.A.No.5 of 2022 in O.S.No.5411 of 2019 on the
file of the III Assistant City Civil Court (FAC) IV Assistant City Civil Court
at Chennai and prays for setting aside the same.
For Petitioner : Mr.S.Sadasharam
For Respondents : Mr.C.S.Kiran
ORDER
This Civil Revision Petition is filed by the Plaintiff in O.S.No.5411
of 2019 on the file of IV Assistant Judge, City Civil Court, Chennai, to set
aside the order dated 04.08.2023 passed in I.A.No.5 of 2022 in
https://www.mhc.tn.gov.in/judis
O.S.No.5411 of 2019 as mentioned supra.
2. Heard Mr.S.Sadasharam, learned counsel appearing for the
petitioner and Mr.C.S.Kiran, learned counsel appearing for the
respondents.
3. The grievance of the petitioner is that the 1st respondent had
filed a suit in O.S.No.3539 of 2019 against the present petitioner for the
relief of declaration that the plaintiff is entitled to half share in the
property described in A-schedule and to pass preliminary decree
directing the defendant to render accounts relating to the sale of B-
Schedule property. In which, the present petitioner filed an application in
I.A.No.2 of 2019 under Order VII Rule 11 CPC, wherein, the trial Court
upon consideration, allowed the said application on the ground of
(i) limitation as well as observed that (ii) there is a bar to seek for the
relief under Section 34 of Specific Relief Act and chose to allow the
petition.
4. Thereafter, the present petitioner filed a suit against the said
Neelavathi and others in O.S.No.5411 of 2019 on the file of IV Assistant
https://www.mhc.tn.gov.in/judis
City Civil Court, Chennai for the relief of issuance of direction to the
defendants to deliver the vacant possession of entire first floor of the suit
property and put the plaintiff into possession of the same and to pay
future damages at the rate of Rs.25,000/- per month from the date of
Plaint till date of delivery of vacant possession of the entire first floor of
the suit property.
5. In this suit, counter claim is filed by the said Neelavathi and
others. The prayer portion in the counter claim is culled out and given
hereunder:
''(a) Declaration declaring the 1st Defendant
is the Co-Owner of the suit schedule property and
consequently Permanent Injunction restraining the
Plaintiff, his men, agents, servants or anyone claiming
under them from entering, alienating or encumbering
and from interfering with the peaceful possession and
enjoyment of the Property mentioned in the suit
schedule;
(b) Direct the plaintiff to render true and
correct accounts of sale proceeds of Sale Deed
Document No.4730 of 2010 dated 09.12.2010
registered at SRO Purasawalkam.''
6. Mr.S.Sadasharam, learned counsel for the petitioner would
https://www.mhc.tn.gov.in/judis
strenuously contend that for the same property, at the behest of the
present petitioner, an application under Order VII Rule 11 CPC, in I.A.
No.2 of 2019 in O.S.No.3539 of 2019 on the file of XVIII Additional City
Civil Court, Chennai was filed and allowed consequently. The plaint was
rejected. When that be the case, now the 1st defendant namely,
Neelavathi and others are not permitted to put-forth the same claim by
way of counter claim.
7. The present revision petitioner filed an application under Order
VIII Rule 6(c) of CPC for exclusion of counter claim in I.A.No.5 of 2022
and the same was dismissed. Aggrieved, the plaintiff herein has
preferred this Civil Revision Petition.
8. Contending contra, Mr.C.S.Kiran, learned counsel appearing for
the respondents would strenuously contend that the 1st defendant
herein namely Neelavathi's plaint was rejected as per the order passed
in I.A.No.2 of 2019 in O.S.No.3539 of 2019 on the file of XVIII Additional
City Civil Court, Chennai, filed under Order VII Rule 11 CPC. In the
given circumstances, the principles of res-judicata cannot operate and
her rights were not finally determined and the same can be determined,
upon the trial of the suit. To buttress his arguments, reliance was placed
https://www.mhc.tn.gov.in/judis
on the following judgment:
Srihari Hanumandas Totala v. Hemant Vithal
Kamat and others reported in (2021) 9 SCC 99.
9. The earlier suit was rejected as per the order passed under
Order VII Rule 11 CPC in I.A.No.2 of 2019 in O.S.No.3539 of 2019 on
the file of XVIII Additional City Civil Court, Chennai. In order to apply the
principles of res-judicata, the issues should have been tried between
same parties and finally should have been decided by such Court.
10. When the issue was not finally decided in the earlier suit in
O.S.No.3539 of 2019, I am of the considered view that the respondents
can maintain the counter claim and therefore, the impugned order does
not suffer from any perversity.
11. In the result, this Civil Revision Petition stands dismissed.
Consequently, connected Civil Miscellaneous Petition is also closed.
There is no order as to costs.
06.08.2024
Index : Yes / No
Speaking Order / Non-Speaking Order
https://www.mhc.tn.gov.in/judis
ssn
Note: Issue Order copy on 09.08.2024.
https://www.mhc.tn.gov.in/judis
To
The Subordinate Judge,
Udumalpet.
R.KALAIMATHI, J.,
ssn
https://www.mhc.tn.gov.in/judis
and
06.08.2024
https://www.mhc.tn.gov.in/judis
