Madras High Court

Kavitha vs M/S.Vox Realities Private Limited on 1 July, 2024

                                                                                   C.R.P.No.1039 of 2024


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 01.07.2024

                                                      CORAM:

                           THE HONOURABLE Mr.JUSTICE V.LAKSHMINARAYANAN

                                              C.R.P.No.1039 of 2024
                                            and CMP.No.12082 of 2024


                    1.Kavitha
                    2.Priyadarsini
                    3.Lavanya
                    4.Deepika                                                 ... Petitioners

                                                          Vs

                    1.M/s.Vox Realities Private Limited
                      Rep. by its Managing Director Mr.G.Ravanan
                      No.5, Warren Road, Chennai - 600 004.

                    Murugesan (deceased)

                    2.Sri Kandaswamy Permanent Fund Ltd.,
                      Rep by its Director Mr.S.Subramanian
                      28, Agraharam Street, Chindatripet
                      Chennai - 600 002.

                    3.The Sub-Registrar Mylapore Sub District
                      Chennai - 600 028.                                      ... Respondents



                    Prayer : Civil Revision Petition filed under Article 227 of the Constitution of
                    India praying to struck down the appeal in A.S.No.284 of 2023 pending on

                    1/20

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                                                                                         C.R.P.No.1039 of 2024


                    the file of XIX Additional Judge, City Civil Court, Chennai as illegal, contrary
                    to law and unconstitutional in the light of the judgment by this Court.


                                           For Petitioners      : Mr.Perumbulavil Radhakrishnan
                                                                  Mr.G.Karthikeyan

                                           For Respondents      : Mr.L.Murali Krishnan
                                                                  for Mr.K.P.Sathish Kumar for R1


                                                             ORDER

This civil revision petition seeks to strike off the proceedings in

A.S.No.284 of 2023 on the file of XIX Additional City Civil Court at

Chennai. The civil revision petitioners are the plaintiffs in O.S.No. 384 of

2019 on the file of II Assistant City Civil Court at Chennai.

2. I heard Mr.Perumbulavil Radhakrishnan for the civil revision

petitioners and Mr.L.Murali Krishnan for Mr.K.P.Sathish Kumar for first

respondent.

3. Before I delve into the merits of the case, the history of litigation is

necessary. The parties shall be referred to as per their rank in the suit

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proceedings in O.S.No.384 of 2019.

4.The suit in O.S.No.384 of 2019 had been laid by civil revision

petitioners as plaintiffs 1 to 4 against their father Murugesan (D1), Sri

Kandasamy Permanent Fund Limited (D2), M/s.Vox Realities Pvt. Ltd., (D3)

and The Sub Registrar, Mylapore (D4) for mandatory injunction, to cancel

the deed of mortgage and to deliver vacant possession of the property.

5. It is to be noted that apart from the suit in O.S.No.384 of 2019

against which the appeal in A.S.No.284 of 2023 has been preferred, yet

another suit had been preferred in C.S.No.738 of 2003 on the file of this

Court. This suit in C.S.No.738 of 2003 was laid by the plaintiffs 1 and 2 in

O.S.No.384 of 2019 against their father Murugesan (D1), their sisters

Lavanya (D3), Deepika (D4) (who are the plaintiffs 3 & 4 in O.S.No.384 of

2019) and Sri Kandasamy Permanent Fund Limited (D2), seeking for a relief

of declaration and permanent injunction.

6. The facts of the case in C.S.No.738 of 2003 (Renumbered as

O.S.No.2485 of 2015) are as below:

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a) Originally the suit schedule mentioned property belonged to one

Sukuni Bai Ammal. The said Sukuni Bai Ammal had alienated the

property in and around the year 1941 in favour of Pachaiyammal.

Pachaiyammal had married one Duraiswami and their marriage

produced several children. The first defendant, Murugesan was born

to Pachaiyammal and Duraiswami. The plaintiffs who are four in

number are the grand daughters of Pachaiyammal. In and around

1961, Pachaiyammal decided to create a line of succession for the

property. Therefore, she executed a settlement deed on 02.02.1961 in

favour of her son Murugesan. In terms of the settlement deed, she

retained the entire life interest and granted limited life interest in favour

of the first defendant, Murugesan and after his lifetime, the vested

remainder was to go to his four daughters namely Kavitha,

Priyadarsini, Lavanya and Deepika, who are the revision petitioners

herein.

b) Murugesan, though he is only a life estate holder without a right of

alienation, executed two mortgages for Rs.5.00 lakhs each. One is a

simple mortgage and the other is a mortgage by deposit of title deeds.

The mortgagee is the second defendant namely Sri Kandaswamy

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Permanent Fund Ltd.,

c) Murugesan was alleged to have defaulted in repayment of mortgage

amount and therefore, in exercise of powers vested in it in terms of

Section 69 of Transfer of Property Act, Sri Kandaswamy Permanent

Fund Ltd., brought the property for auction.

d) At that stage, Kavitha and Priyadarsini, the first and second daughters

of Murugesan realised that their rights over the property is sought to be

parted away on account of illegal acts of Murugesan. Therefore, they

presented C.S.No.738 of 2003 on the file of this Court. They sought

for a relief of declaration that the mortgage deed executed by

Murugesan in favour of Sri Kandaswamy Permanent Fund Ltd., on

22.08.1994 as null and void and also for the relief of permanent

injunction restraining Sri Kandaswamy Permanent Fund Ltd., from

bringing the suit schedule property for auction.

7. Pending the suit, the aforementioned grand daughters of

Pachaiyammal moved a application in O.A.No.826 of 2003, seeking an ad

interim injunction restraining Sri Kandaswamy Permanent Fund Ltd., or

anyone claiming thereunder from bringing the property for auction. The said

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Fund entered appearance through a counsel in the suit as well in the

application.

8. After hearing both sides, by an order dated 30.10.2003, this Court

had specifically directed that any sale that may take place in terms of Section

69 of Transfer of Property Act will be subject to the result of the suit in

C.S.No.738 of 2003. In other words, it is made clear that if any person

purchases the property in the auction, his/her title will be subject to the result

of the suit.

9. Be that as it may, a certain Vox Realities Pvt. Ltd., (who is the 3rd

defendant in O.S.No.384 of 2019) claims that one Ajay Bhatt was the

successful purchaser in the auction sale, which was made subject to the result

of the suit in C.S.No.738 of 2003 and as his nominee, it purchased the

property. On coming to know about this purchase, the plaintiffs moved an

application in O.A.No.724/2007 in C.S.No.738 of 2003 seeking for a relief of

ad interim injunction restraining M/s.Vox Realities from interfering with the

peaceful possession and enjoyment of the suit property.

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10. At the same time, an application in A.No.4133 of 2007 was taken

out to implead M/s.Vox Realities. Pending disposal of the application to

implead M/s. Vox Realities in the suit, the said ad interim injunction was

granted by this Court on 30.07.2007. Subsequently, by an order in

A.No.4133 of 2007, M/s.Vox Realities was also impleaded as a party to the

suit.

11. By virtue of enhancement of pecuniary jurisdiction of the City Civil

Court, the suit in C.S.No.738 of 2003 stood transferred to the file of II

Additional City Civil Court at Chennai. It was renumbered as O.S.No.2485

of 2015.

12. After a detailed trial, the suit came to be decreed on 29.06.2017

with costs, granting the relief of declaration that the mortgage executed by the

first defendant Murugesan in favour of Sri Kandaswamy Permanent Fund

Ltd., the second defendant, is illegal and void. The suit was dismissed

insofar as the relief of permanent injunction is concerned.

13. The lis pendens purchaser M/s.Vox Realities feeling aggrieved by

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the decree in O.S.No.2485 of 2015, preferred a regular appeal before this

Court in A.S.SR.No.44900/2021. It sought leave to file an appeal against the

judgment and decree of the trial Court in CMP.No.11899/2021 in

A.S.SR.No.44900/2021. In the said CMP, this Court ordered notice to the

respondents/plaintiffs. The plaintiffs entered appearance through a counsel

and filed a detailed counter.

14. After hearing both sides, this Court vide order dated 28.10.2021

had dismissed the said CMP.No.11899 of 2021 in A.S.SR.No.44900 of 2021

and held that M/s.Vox Realities being a purchaser who was aware of the

litigation, yet it went ahead and purchased the property. Thus, it was not

entitled to maintain the appeal. It was made clear that if at all any person is

entitled to an appeal, it is only the mortgagee viz., Sri Kandaswamy

Permanent Fund Ltd., The relevant portion is extracted hereunder :

'23. The petitioner is the auction purchaser pending the suit and after being put on notice that the sale in his favour was subject to the ultimate result of the suit. Therefore, the petitioner has purchased the property being fully aware of the risk that they were taking. The petitioner cannot be heard to question the Judgment and Decree that in O.S.No.2485 of 2015, as it is

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brought to the notice of this Court that pending the suit before this Court in C.S.No.738 of 2003 the petitioner had been impleaded as a party to the suit on 30.07.2007 by orders in A.No.4133 of 2007. Having failed to participate in the proceedings despite being brought on record the petitioner cannot now contend that he has not been made a party to the proceedings which is a blatant falsehood. Having deliberately stayed away from the proceedings despite being aware of the pendency of the suit and the relief claimed, the petitioner cannot now seek to question the Judgment and Decree passed in O.S.No.2485 of 2015. That apart, the petitioner is only an auction purchaser and that too after notice about the pending proceedings and on condition that his sale would be subject to the result of the suit. In these circumstances the petitioner cannot be permitted to question the Judgment and Decree passed in O.S.No.2485 of 2015 by the II Additional Civil City Judge, Chennai. That apart, the person who can question the validity of mortgage is only the 2nd defendant, the mortgagee. The 2nd defendant has not questioned the Judgment and Decree nor have they participated in the proceedings.'

15. Both sides would agree that Sri Kandaswamy Permanent Fund

Ltd., had not preferred an appeal against the said decree.

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16. Feeling aggrieved over the rejection of the petition to grant leave, a

Special Leave Petition was preferred by M/s.Vox Realities before the Supreme

Court in SLP(C ) No.2422 of 2022. The said Special Leave Petition came to

be dismissed on 28.02.2022. In other words, the decree granted in

O.S.No.2485 of 2015 dated 29.06.2017 attained finality.

17. With this round of litigation over, we now turn to the second round

of litigation, which had commenced on the basis of the decree granted in

O.S.No.2485 of 2015. Alleging that possession had been taken away from

them by M/s.Vox Realities and since the Sub Registrar, Mylapore refused to

record the decree in O.S.No.2485 of 2015 dated 29.06.2017, all the four

daughters of Murugesan instituted a suit in O.S.No.384 of 2019 on the file of

II Assistant City Civil Court, Chennai. The reliefs that were sought in this

suit was for :

a) a mandatory injunction directing the Sub-Registrar, Mylapore to

make entry in his books that the mortgage executed by Murugesan

in favour of Sri Kandaswamy Permanent Fund Ltd., is null and

void;

b) a mandatory injunction to cancel the sale deed executed pending the

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lis by Sri Kandaswamy Permanent Fund Ltd., in favour of M/s.Vox

Realities;

c) a direction to M/s.Vox Realities to deliver vacant possession of the

suit property;

d) to pay mesne profits from 29.06.2017 i.e., from the date of

judgment in O.S.No.2485 of 2015 till the date of realisation and for

a further sum of Rs.15,000/- per month as damages;

e) a permanent injunction restraining M/s.Vox Realities from

encumbering or creating any third party interest or altering the

superstructure over the suit property.

18. In this suit, M/s.Vox Realities, the unsuccessful party before this

Court and Supreme Court, entered appearance and filed a detailed written

statement running to several pages. It is the only person who had contested

the suit. Murugesan and Sri Kandaswamy Permanent Fund Ltd., remained

exparte. In this proceedings, on the side of the plaintiffs, Ext.A1 to Ext.A28

were marked and on the side of the defendants Ext.B1 to Ext.B7 were

marked. A certain Ravanan, the Managing Director of M/s.Vox Realities

examined himself as D.W.1

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19. After a detailed examination of the evidence let in before him, the

learned trial Judge vide his judgment and decree dated 01.08.2023 had partly

decreed the suit. In its decree it had held that the plaintiffs are entitled for a

mandatory injunction as against the fourth defendant, Sub Registrar, to enter

in his books regarding the nullity of the mortgage and for a further direction

that the fourth defendant shall make entry in his books that the sale deed

executed in favour of M/s.Vox Realities by Sri Kandaswamy Permanent Fund

Ltd., is null and void. M/s.Vox Realities, the third defendant is also directed

to quit and deliver vacant possession within a period of four months from the

date of the judgment and an injunction was also granted restraining it from

alienating the property. Insofar as the relief of damages and mesne profits

are concerned, the suit stood dismissed.

20. Aggrieved by the said judgment and decree in O.S.No.384 of 2019,

M/s.Vox Realities preferred a regular appeal before the XIX Additional City

Civil Court, Chennai. This appeal has been taken on file as A.S.No.284 of

2023. It is to strike off this appeal, the present civil revision has been

presented.

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21. Mr.Perumbulavil Radhakrishnan took me to the grounds of appeal

and submitted that the pleas that had been taken by M/s.Vox Realities are in

fact hit by resjudicata and the present appeal is an attempt to re-litigate the

proceedings which had already been concluded in O.S.No.2485 of 2015,

CMP.No.11899/2021 in A.S.SR.No.44900/2021 and as confirmed by the

Supreme Court in SLP(C ) No.2422 of 2022. He would submit that the

continuation of the appeal is an abuse of process of law and that the lower

Appellate Court should not be burdened with the appeal and the appeal

should be removed from its file in exercise of powers under Article 227 of the

Constitution of India.

22. Mr.L.Murali Krishnan, learned counsel appearing for

Mr.K.P.Sathish Kumar for M/s.Vox Realities would submit that the

respondent seeks to agitate the correctness or otherwise of the decree granted

in O.S.No.384 of 2019 dated 01.08.2023. He would state that as a party

defendant, he is entitled to do so.

23. The point I have to decide in this case is whether the appeal in

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A.S.No.284 of 2023 is liable to be struck off. Before that, I have to take note

of the following facts :

i. By virtue of the judgment in O.S.No.2485 of 2015 dated

29.06.2017, the right, title and interest of the plaintiffs namely

Kavitha, Priyadarsini, Lavanya and Deepika has been settled. They

have been declared to be entitled to the suit schedule mentioned

property;

ii. By virtue of the very same judgment, the alienation by Murugesan

in favour of Sri Kandasamy Permanent Fund Limited is null and

void and inoperative as against the plaintiffs;

iii. The purchase which had taken place pending the litigation in

C.S.No.738/2003 is hit by lis pendens. I should recollect here that

lis pendens commences with the date of presentation of the plaint,

continues through the act of preferring an appeal or special leave

petition before the Supreme Court;

iv. The right of M/s.Vox Realities has been finalised by a judgement of

this Court in CMP.No.11899/2021 in A.S.SR.No.44900/2021

dated 28.10.2021 and this order stood confirmed in SLP(C )

No.2242 of 2022.

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24. The lis pendens purchase is not ab inito void but would depend

upon the result of the suit. In fact this had been made clear by the order of

this Court in O.A. No.826 of 2003 in C.S.No.738 of 2003 dated 30.10.2003.

25. With this preliminaries having been settled, I would now look into

the prayer that had been made by Mr.Perumbulavil Radhakrishnan regarding

the maintainability of the appeal.

26. When a decree has been passed against one party or even when a

decree has been passed which affects the right of a third party, the aggrieved

has right to present an appeal before the Appellate forum with leave of the

Court by virtue of Section 96 of Code of Civil Procedure. Section 96 does

not bar the filing of any appeal even if it be a vexatious one. The bar under

Section 96 operates only under Section 96(3) and Section 96(4) of the Code.

If the appeal does not come within the scope of Section 96(3) or Section 96(4)

of the Code, I cannot find fault with the lower Appellate Court in receiving the

appeal papers, numbering the same and issuing summons on the revision

petitioners. It is for the learned Appellate Judge who is dealing with the

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appeal to decide whether on the facts of the present case, the appeal preferred

by M/s.Vox Realities is one worth agitating or whether it is a vexatious or an

abusive appeal. While sitting under Article 227 of the Constitution, I have to

see whether the Court which entertained the appeal, has jurisdiction to do so.

In case, I come to the conclusion that it has the jurisdiction, I have no other

option than to turn to the parties and direct them to approach the Court before

which the proceedings are pending and raise all the pleas before that

authority.

27. In this case, the appeal is pending before the senior Civil District

Judge who has sufficient and vast experience in civil jurisdiction and I am

sure if the appeal is argued with the same vehemence the revision was argued

before me, the learned appellate Judge would see the law, facts and justice

involved in the mater.

28. As the II Additional City Civil Court has jurisdiction to entertain

the appeal, I decline to entertain this revision.

29. Before I conclude, I have to take notice of the fact that the

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proceedings were initiated atleast 21 years before and are yet to see the light

in the end of the tunnel. The plaintiffs in the present case have already

litigated upto Supreme Court in one round and yet again are faced with the

present appeal. In the interest of justice and in order to give a full play to

Vox Realities, third defendant in the present appeal, I feel that if a direction is

given to the learned XIX Additional Judge, City Civil Court to dispose of the

appeal in a shorter period, will give a finality to the rights of both the parties.

Both sides would submit that the appeal in A.S.No.284 of 2023 pending on

its file is listed for hearing on 19.07.2024.

30. The learned XIX Additional Judge, City Civil Court, Chennai is

requested to advance the hearing from 19.07.2024 to 08.07.2024. On that

date, both the sides shall appear before the learned Additional Judge and

after ascertaining their convenience, the learned Judge will start hearing the

appeal from 09.07.2024. The learned Judge shall complete the hearing in the

appeal by 16.07.2024 and pass judgment on or before 29.07.2024. The

learned Judge is also requested to submit a report to this Court on the

compliance of the directions given above on 30.07.2024.

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31. I am sure that the learned District Judge who is pointed out above is

a Senior Judge having sufficient experience in civil side and he will not seek

any extension of time.

32. In the result, this civil revision petition is dismissed with the above

directions. No costs. Consequently, connected miscellaneous petition is

closed.

Post the matter for reporting compliance on 31.07.2024.

Note : The learned Appellate Judge is required to act on the webcopy of this judgement produced by either side, and need not insist for a certified copy of the same.

01.07.2024

Index:Yes/No Neutral Citation : Yes / No Speaking order / Non-speaking order ds

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