Madras High Court
Sivakumar vs Dayalan on 3 September, 2024
C.R.P.(PD).No. 2105 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.09.2024
CORAM
THE HONOURABLE Mr. JUSTICEV.LAKSHMINARAYANAN
C.R.P.(PD).No. 2105 of 2024
&
C.M.P.No.11207 of 2024
1.Sivakumar
2.Balakrishnan
3.N.Durairaj ...Petitioners
Vs.
1.Dayalan
2.The Sub Registrar
Vanur,
Vanur Taluk ...Respondents
Prayer: Civil Revision Petition is filed under Article 227 of the
Constitution of India to strike off the impugned plaint filed in O.S.No.21 of
2024 on the file of the learned District Munsif, at Vanur.
For Petitioners : Mr. S.Parthasarathy, Senior Counsel
for Mr.Prakash Adiapadam
For Respondent 1 : Ms. A.L.Ganthimathy, Senior Counsel
for Mr. A.R.Karthik Lakshmanan
1/23
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C.R.P.(PD).No. 2105 of 2024
For Respondent 2 : Mr.R.Siddharth,Government Advocate
ORDER
This Civil Revision Petition is filed seeking to strike off the plaint in
O.S.No.21 of 2024 on the file of the learned District Munsif, Vanur.
2. The civil revision petitioners are the defendants 1 to 3 in the suit.
The reliefs sought for in the suit are as follows:
“(1) thjpapd; jhth “rp” ml;ltiz brhj;J mDgtj;jpy; 1 Kjy;
3 gpujpthjpfs; vt;tpjj;jpYk; jiyaplkhy;gof;F mth;fis epue;jukhf
jil bra;Jk;.
(2) jhth “rp” ml;ltiz brhj;ij 1 Kjy; 3 gpujpthjpfs;
ahUf;Fk; fpiuak; bra;ahky;gof;F epue;jukhf jilbra;Jk;.
(3) jhth “gp” ml;ltiz brhj;jpy; 63 brz;il gphpj;J el;Ls;s
fw;fisa[k; ntypiaa[k; mg;g[wg;gLj;j 1 Kjy; 3 gpujpthjpfSf;F
cj;jutpl;Lk; mg;go bra;aj;jtWk;gl;rj;jpy; nfhh;l; fl;lis K:yk;
mg;gw[ g;gLj;jt[k”;
3. The plaint has three schedules of property. Insofar as the A
schedule property is concerned, no relief has been sought for. The relief of
injunction has been sought for with regard to the C schedule property.
Insofar as the B schedule property is concerned, the plaintiff sought for a
mandatory injunction directing the defendants to remove the boundary
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stones and if not, to have it done through the process of the Court.
4. The present proceeding has a checkered history. A total extent of 16
acres and 50 cents is comprised in S.No.23/2, Vanur Taluk, Kottakuppam
Village. Of this, 12.50 acres belonged to one Sabapathy Mudaliar. The said
Sabapathy Mudaliar had given this extent of 12.50 acres to three brothers,
namely, Ramanuja Naicker, Panduranga Naicker and Narayanasamy Naicker
for cultivation.
5. Sabapathy Mudaliar presented O.S.No.22 of 1984 seeking for the
relief of declaration and for the relief of permanent injunction. The brothers
claimed, they are cultivating tenants and hence, resorted the suit. Pending
the suit, the parties entered into a compromise. As per the terms of the
compromise, this property measuring 12.50 acres which belonged to
Sabapathy Mudaliar was carved out into two portions. With respect to 11
acres and 10 cents, it was agreed by the defendants that it belonged to
Sabapathy Mudaliar and family. With respect to the remaining 1 acres 40
cents, it was agreed that it belonged to Narayanasamy Naicker and
Ramanuja Naicker.
6. Subsequently, Narayanasamy Naicker initiated O.S.No.77 of 1996
on the file of the District Munsif, Vanur. This was a suit for partition and
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separate possession. In this suit, A schedule proeprty was the ancestral
property of the family. The property allotted to Ramanuja Naicker and
Narayanasamy Naicker in O.S.No.22 of 1984 was shown as B schedule
property in the said suit. In the said suit, Narayanasamy Naicker, Ramanuja
Naicker, Panduranga Naicker as well as the purchaser of 4000 sq.ft., namely,
one, Kaleel Basha were made parties.
7. After a detailed trial, O.S.No.77 of 1996 was decreed insofar as the
A schedule property is concerned and dismissed insofar as the B schedule
property is concerned. It was held that Narayanasamy Naicker is entitled to a
1/3rd share in the A schedule property. It was also held that Panduranga
Naicker and Ramanuja Naicker are entitled to equal shares in the B schedule
property. Aggrieved by the same, Narayanasamy Naicker preferred an
appeal in A.S.No.5 of 2003 before the Additional Subordinate Judge,
Tindivanam. The judgement and decree of the Trial Court was confirmed by
the Lower Appellate Court.
8. Thereafter, Ramanuja Naicker initiated two suits in O.S.No.58 of
2003 and O.S.No.101 of 2007. Both the suits ended in dismissal. Aggrieved
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by the same, Ramanuja Naicker represented by his legal representatives
presented two appeals, A.S.Nos.32 & 33 of 2011.
9. A.S.No.32 of 2011 is filed against O.S.No.58 of 2003 and
A.S.No.33 of 2011 is filed against O.S.No.101 of 2007. As the issues are
common in both the appeals, the learned Additional Subordinate Judge,
Tindivanam heard the appeals and dismissed the appeal against O.S.No.58
of 2003 and partly allowed the appeal against O.S.No.101 of 2007.
10. The decree in A.S.No.33 of 2011 reads that, Ramanuja Naicker
and his legal heirs are entitled for lesser relief of permanent injunction
restraining Narayanasamy Naicker and his sons from interfering with the
western 70 cents of property excluding the 4000 sq.ft., alienated in favour of
Kaleel Basha in S.No.23/2.
11. Narayanasamy Naicker, the brother of Pandurangan, though he
lost the partition suit with reference to S.No.23/2, seems to have approached
Pandurangan and obtained an irrevocable power of attorney on 21.07.2003.
On the strength of the irrevocable power of attorney, he executed a sale deed
in favour of his three sons, namely, Sivakumar, Balakrishnan and Durairaj.
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The alienation made by Pandurangan through his power of attorney in
favour of Sivakumar and the others is for the half share that he was declared
to be entitled to in O.S.No.77 of 1996.
12. Pending the appeals in A.S.Nos.32 and 33 of 2011, the parties
have specifically pleaded that Ramanuja Naicker and his legal heirs are
entitled to 70 cents of land in the aforesaid survey numbers and that
Ramanuja Naicker cannot claim an exclusive right over the entire extent of
1.40 acres.
13. The learned Judge came to the conclusion that Kaleel Basha is the
bonafide purchaser of the property and therefore, he is entitled to have every
right over the property purchased by him. The Court finally decreed that out
of the 1 acre 40 cents which was allotted to Panduranga Naicker and
Ramanuja Naicker, Ramanuja Naicker is entitled to 70 cents excluding the
4000 sq.ft alienated by them.
14. After having obtained this decree in their favour, the son of
Ramanuja Naicker has presented this suit seeking for a right over the very
extent which had been allotted by the Judgment in O.S.No.77 of 1996 to
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Ramanujam and Pandurangan. Hence, it is pleaded that it a clear case of re-
litigation since the matter has been already gone into by the Court from 1984
onwards and consequently, it is urged that the suit should be struck off from
the file of the court.
15.Heard the learned counsels and perused the records.
16. Mr.S.Parthasarathy, learned senior counsel appearing for
Mr.Prakash Adiapadam, would submit that this is a classic case of
re-litigation. He would invite my attention to paragraph nos.6 and 7 of the
plaint, where the plaintiff had been emboldened to plead before the learned
District Munsif at Vanur that judgment and decree passed by the learned
Subordinate Judge in previous round of litigation is wrong and erroneous.
He would state that an appropriate remedy for the party is only to file a
Second Appeal against the judgment and decree and it is not open to the
parties to file a fresh suit seeking to set aside the judgment and decree that
had been obtained in the previous proceedings.
17. Per contra, M/s.A.L.Ganthimathy, learned senior counsel
appearing for Mr.A.r.Karthik Lakshmanan, would submit that there is a
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dispute in the identity of the property and even if the averments in paragraph
nos.6 and 7 of the plaint are to be ignored, the parties have to be pushed for
trial. She would submit that the plaintiff/first respondent has preferred two
Second Appeals against the judgments in A.S.No.32 of 2011 and A.S.No.33
of 2011 in S.A.SR.No.10131 of 2020 and S.A.SR.No.160852 of 2019,
respectively on 24.01.2020. She would submit that the papers have been
misplaced by the Registry and the first respondent is making a diligent
search for the same.
18. The narration of the rounds of litigation between the parties makes
it clear that the judgment and decree granted in O.S.No.77 of 1996 dated
29.01.2003 granting the rights to Pandurangan and Ramanujan had attained
finality.
19. I have carefully considered the arguments on either side and gone
through the materials available on record.
20. There is no dispute between the parties that the property originally
belonged to one Sabapathy Mudaliar. He presented O.S.No.22 of 1984
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against Narayanansamy Naicker and Ramanuja Naicker. The defence that
was taken in the suit was that the defendants were in occupation of the
property as cultivating tenants. In order to claim that right, they had
approached the authorities under that Special Legislation. This suit in
O.S.No.22 of 1984 on the file of the District Munsif Court at Tindivanam
never went for trial. It was compromised between the legal heirs of
Sabapathy Mudaliar, and Narayanasamy Naicker and Ramanuja Naicker on
21.03.1991.
21. In terms of settlement, the entire extent for which the suit had been
presented namely 12 acres and 50 cents was divided into two extents namely
11 acres and 10 cents and 1 acre 40 cents.
22. With respect to 11 acres and 10 cents, the parties agreed that it
would belong to Sabapathy Mudaliar's family namely the plaintiffs therein
and the remaining 1 acre 40 cents would go to the defendants. Just before the
settlement had been arrived at between the plaintiffs and the defendants in
that suit, Ramanuja Naicker purchased an extent of one acre on 18.02.1991.
This was not a subject matter of O.S.No.22 of 1984.
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23. Subsequently, Narayanasamy Naicker instituted another suit
claiming for 1/3rd share in his ancestral assets being engaged in common
with Ramanuja Naicker and Panduranga Naicker and 1/2 share in the
property that came to the brothers by virtue of compromise in O.S.No.22 of
1984. This suit was filed before the learned District Munsif cum Judicial
Magistrate at Vanur. It was numbered as O.S.No.77 of 1996.
24. In O.S.No.77 of 1996, the learned Trial Judge, after a detailed
discussion, granted 1/3rd share in the ancestral assets and dismissed the suit.
With respect to B schedule property. In order to arrive at the said conclusion,
the learned Trial Judge in paragraph 23 of the said judgment held as follows:
“ Mf nkw;brhd;d tifapy; jhth “gp” ml;ltizr; brhj;J
thjpia tpLj;J. 1. 2 gpujpthjpfSf;F nru ntz;oaJ vd;W
Kot[rb; ra;ag;gl;Ls;sjd; mog;gilapy;. “gp” ml;ltizr; brhj;J thjp
kw;Wk; 1. 2 gpujpthjpas; ml';fpa Tl;L jhth m ml;ltiz
brhj;Jf;fs; 3 rnfhjuh;fspd; bghJ Flk;g brhj;J vd;Wk;. gp
ml;ltiz Flk;g brhj;J ,y;iy vd;nw Kot[rb; ra;ag;gLfpwJ/”
25. Aggrieved by the said judgment and decree, an appeal was
preferred before the learned Additional Subordinate Judge at Tindivanam by
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Narayanasamy Naicker as well as by Panduranga Naicker, the second
defendant therein. Narayanasamy Naicker's appeal was received as A.S.No.5
of 2003 and the cross appeal of Panduranga Naicker was numbered as cross
appeal No.5 of 2003.
26. After a detailed discussion, the learned Additional Subordinate
Judge confirmed the said judgment and decree of the Trial Judge by way of
a judgment dated 31.10.2005.
27. It is not in dispute that the said judgment and decree has attained
finality. Pending the appeal proceedings, Panduranga Naicker seems to have
executed a general power of attorney dated 21.07.2003 granting power to his
brother with respect to the properties that came to his hands by virtue of the
settlement that had been arrived at in O.S.No.22 of 1984. After having
received the power, Narayanasamy Naicker had executed a sale deed in
favour of the civil revision petitioners, who are his sons, on 20.03.2006.
28. While the appeal suit was pending before the learned Subordinate
Judge in A.S.No.5 of 2003, two other suits came to be filed by Ramasamy
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Naicker against the present civil revision petitioners as well as Panduranga
Naicker and others. These suits were received by the learned District Munsif
cum Judicial Magistrate at Vanur as O.S.No.58 of 2003 and O.S.No.101 of
2007.
29. It is pertinent to point out that the suit properties in O.S.No.58 of
2003 was one acre that had been purchased by Ramanuja Naicker on
18.02.1991 and O.S.No.101 of 2007 related to the extent covered under the
compromise in O.S.No.22 of 1984.
30. Before the learned Trial Judge, the parties agreed for a common
trial and a common judgment was pronounced in both the suits. Both the
suits were dismissed by the learned District Munsif on 21.03.2011. In the
meantime, Ramanuja Naicker passed away and his legal heirs namely his
wife Amaravathiammal, son Dhayalan (the first respondent herein) and
daughters Kalaiselvi, Latha and Indira were brought on record.
31. The legal representatives of Ramanuja Naicker preferred
A.S.Nos.32 and 33 of 2011 before the learned Additional Subordinate Judge
at Tindivanam. The appeal suits were clubbed together and disposed of by a
common judgment by the learned Subordinate Judge in and by way of a
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judgment dated 28.11.2017.
32. The appeal against O.S.No.58 of 2003 (the property purchased by
Ramanuja Naicker on 18.02.1991) was dismissed. With respect to one acre
40 cents, as both sides had agreed that it had been divided between the
parties, therefore, the Court modified the judgment and decree of the Trial
Court. It held that the plaintiff therein (Ramanuja Naicker) is entitled to the
western share in S.No.23/2 excluding the 4000 sq. ft., that had been
alienated in favour of one Kaleel Basha and granted the lesser relief of
permanent injunction.
33. Ms.Gandhimathy has stated that the judgments passed in
A.S.Nos.32 and 33 of 2011 have not become final and the second appeals
have been presented before this Court and the same is yet to be numbered.
34. The aforesaid facts, show that not once, had the issue of whether
Ramanuja Naicker entitlement to a share in the property had been challenged
first at the instance of Narayanasamy Naicker and thereafter, specifically at
the instance of the Ramanuja Naicker himself. On four occasions, the Court
had come to the conclusion that Ramanuja Naicker is entitled to a share in
S.No.23/2 to an extent 63 cents (70 cents excluding the 4000 sq. ft. sold to
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Kaleel Basha). Having reached this conclusion, the plaintiff, i.e., the son of
Ramanuja Naicker, in case he is aggrieved, should have agitated all his
rights in the second appeals instead, he approached the learned District
Munsif again by way of the present suit.
35. A reading of the plaint shows that it is a classic case of re-
litigation. For the sake of convenience, I am extracting the paragraphs 6 and
7 of the plaint:
“6/ nkw;go thjpapd; je;ij uhkhD$ ehaf;fh;
ehuhazrhkp nghpYk; mtUila Fkhuh;fshd nkw;go
gpujpthjpfs; nghpYk; thD}h; khtl;l chpikapay;
ePjpkd;wj;jpy; X/v!;/58-03 tHf;F jhf;fy; bra;jhh;/
mjd;gpwF nkw;go ghz;Lu';fs; ehaf;fh; ehuhazrhkp
ehaf;fh; kw;Wk; nkw;go 1 Kjy; 3 gpujpthjpfs; Mfpnahh;fs;
nghpy; thD}h; khtl;l chpikapay; ePjpkd;wj;jpy; X/v!;/101-07
tHf;if jhf;fy; bra;jhh;/ nkw;go ,UtHf;FfSk; epYitapy;
,Ue;jnghJ uhkhD$ ehaf;fh; fhykhfp tpl;lhh;/ Mifapdhy;
mtUila thhpRfshd kidtp mkuhtjp mk;khs;. kfd;
nkw;go thjp kw;Wk; kfs;fs; fiyr;bry;tp. yjh. ,e;jpuh
Mfpnahh;fs; ghh;l;oahf nrh;e;J nkw;go ,uz;L
tHf;Ffisa[k; elj;jp te;jhh;fs;/ ,uz;L tHf;FfSk;
xd;whf tprhhpf;fg;gl;L 21?03?2011?y; js;Sgo bra;ag;gl;L
thjpfSf;F vjpuhf jPh;g;g[ tH';fg;gl;lJ/ me;j jPh;g;gpd;
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nghpy; uhkhD$ ehaf;fhpd; thhpRfs; X/v!;/58-03 tHf;if
bghWj;J V/v!;/32-11 mg;gPy;tHf;Fk;. X/v!;/101-07I bghWj;J
V/v!;/31-11 mg;gPy; tHf;Fk; jpz;otdk; TLjy; rhh;g[
ePjpkd;wj;jpy; jhf;fy; bra;jhh;fs;/ ,uz;L nky;
KiwaPLfSk; xd;whf tprhhpf;fg;gl;L 28?11?2017?y; jPh;g;g[
tH';fg;gl;lJ/ nkw;go X/v!;/58-03 tHf;F jPh;g;g[ cWjp
bra;ag;gl;Lk;. nkw;go X/v!;/101-07 tHf;F jPh;g;g[ uj;J
bra;ag;gl;L nkw;KiwaPL mDkjpf;fg;gl;L Fiwthd ghpfhuk;
tH';fg;gl;lJ/ nkw;go X/v!;/58-03 kw;Wk; X/v!;/101-07
,uz;L tHf;FfspYk; tH';fg;gl;l jPh;g;g[fs; Kw;wpYk;
jtwhditfshFk;/ ghz;Lu';f ehaf;fh; X/v!;/77-96
tHf;if elj;jhky; vf;!;ghh;l;o Mfptpl;lija[k; mtUila
chpik vJt[k; jPh;khdpf;fg;glhjija[k; ftdpf;fg;glhky; Vnjh
mtUf;F Mjuhthf jPh;g;g[ tH';fg;gl;ljhf jtwhf
g[hpe;Jbfhz;L nkw;go X/v!;/58-03 kw;Wk; X/v!;/101-07
tHf;Ffs; bu!;$%onfl;lh njhc&j;jhy; ghjpf;fg;gl;ljhft[k;
mjdhy; uhkhD$ ehaf;fh; nfhhpa ghpfhu';fs;
fpilf;fj;jf;fjy;y vd;Wk; Kot[ bra;ag;gl;Ls;sJ/ nkw;go
X/v!;/77-96 tHf;fpd; jPh;g;g[ rhpahf Muhagltpy;iy/ nkw;go
ghz;Lu';f ehaf;fhpd; chpik rl;lgo Kothfhj epiyapy;
“gp” ml;ltiz brhj;jpy; mtUf;F ghjp ghfk;
chpikapUg;gjhf fw;gid bra;J bfhz;L ehuhazrhkp
ehaf;fUf;F gth; gj;jpuk; vGjpf;bfhLj;jpUg;gJk;
mijitj;J mth; mtUila Fkhuh;fshd nkw;go
gpujpthjpfSf;F fpiuagj;jpuk; vGjpf;bfhLj;jpUg;gJk;
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rl;lj;jpd; ghh;itapy; ,y;yh epiyajhFk;/ nkw;go X/v!;/58-
03 kw;Wk; X/v!;/101-07 ,uz;L tHf;FfSnk
nkbyGe;jthhpahf Kot[ bra;ag;gl;Ls;sd/ nkw;go
ghz;Lu';f ehaf;fh; vf;!;ghh;l;o Mfptpl;l epiyapy;
mtUila tHf;Fiunah my;yJ rhl;rpankh ,y;yhj
epiyapy; mtUf;bfjpuhf X/v!;/77-96?Yk; kw;Wk;
ehuhazrhkp jhf;fy; bra;j V/v!;/5-03?Yk; mjpy;
ghz;Lu';fd; ehaf;fh; jhf;fhy; bra;j FWf;F nky;
KiwaPl;oYk; tH';fg;gl;l jPh;g;g[ rhpahdjhFk;/ Mifapdhy;
gpd;dpl;l X/v!;/58-03 kw;Wk; X/v!;/101-07 jPh;g;g[fs; nkw;go
X/v!;/77-96 kw;Wk; V/v!;/5-03 jPh;g;g[fis vt;tifapYk;
fl;Lg;gLj;jhJ/ mnjhLkl;Lky;yhky; nkw;go X/v!;/77-96
jPh;g;gpw;F Kuz;gl;l epiyg;ghl;il vLj;J mspf;fg;gl;Ls;s
X/v!;/58-03 kw;Wk; X/v!;/101-07 jPh;g;g[fSk; mjd;nghpy;
Vw;gl;l V/v!;/32-11 kw;Wk; V/v!;/31-11 jPh;g;g[fSk;
vt;tifapYk; bu!;$%onfl;lh tiuaiwf;Fs; tuhJ/
Mifapdhy; nkw;go jPh;g;g[fs; vjpuhf mike;j nghjpYk;
uhkhD$ ehaf;fhpd; mog;gilahd chpikia gwpf;f KoahJ/
7/ nkw;go uhkhD$ ehaf;fh; X/v!;/22-84 uh$pdhkh
jPh;g;g[ Vw;gLtjw;F Kd;ghfnt fpiuak; bgw;w xU Vf;fh;
jdpbrhj;jhFk;/ nkw;go tHf;fpy; uh$pdhkh K:yk; jug;gl;l 1
Vf;fh; 40 brz;L jdpbrhj;jhFk;/ mjdhy;jhd;
ehuhazrhkp ehaf;fh; jhf;fy; bra;j X/v!;/77-96 tHf;fpy;
uhkhD$ ehaf;fhpd; fpiua brhj;ij nrh;f;ftpy;iy/
uh$pdhkh ofphpgoahd brhj;ij kl;oy;jhd; “gp”
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ml;ltizahf nrh;f;fg;gl;lJ/ ,uz;Lk; jdpj;jdp brhj;J
vd;gjpdhy;jhd; uhkhD$ ehaf;fh; 1 Vf;fh; rk;ke;jg;gl;l
kl;oy; X/v!;/58-03. 1 Vf;fh; 40 brz;L rk;ke;jgl;l kl;oy;
X/v!;/101-07 tHf;Fk; jhf;fy; bra;jhh;/ Mdhy; X/v!;/77-96
jPh;g;ig kl;Lnk bu!;$%onfl;lhtpw;F Mjhukhf vLj;J
bfhs;sg;gl;lhy;jhd; nkw;go X/v!;/58-03 kw;Wk; X/v!;/101-07
tHf;F jPh;g;g[fs; gpiHahfptpl;ld/ Mdhy; ,JtiuapYk;
nkw;go X/v!;/77-96 jPh;g;g[ mKypy; ,Ue;J tUtjhy;
mjd;go uhkhD$ ehaf;fh; mtUila chpikia epiyehl;l
mUfija[ilath; Mthh;/ nkYk; uhkhD$ ehaf;fh; fpiuak;
bgw;w 1 Vf;fhpy; fyPy;ghc&htpw;F fpiuak; bfhLj;j 4000
r/mo nghf kPjpaplj;jpy; ahUk; ve;j chpika[k; nfhuhjjpdhy;
uhkhD$ ehaf;fh; bgw;w fpiuak; ,d;W tiuapy; mKypy;
,Ue;JtUfpwJ/ Mifapdhhy; uhkhD$ ehaf;fUk;
mtiuj;bjhlh;e;J mtuJ thhpRfSk; uhkhD$ ehaf;fh;
fpiuak; bgw;w 1Vf;fhpy; fyPy;ghc&htpw;F fpiuak; bfhLj;j
4000 r/mo nghf kPjpaplj;jpw;Fk; uh$pdhkh jPh;g;g[go fpilj;j
1Vf;fh; 40 brz;ow;Fk; rl;lgo chpika[ilath;fs;
Mthhh;fs;/ cz;ikapy; X/v!;/77-96. X/v!;/58-03 kw;Wk;
X/v!;/101-07 jPh;g;g[fis itj;J ghz;Lu';f ehaf;fnu mth;
K:ykhf gth; gj;jpuk; bgw;w ehuhazrhkp ehaf;fnuh jhth
ml;ltiz brhj;Jfspy; vt;tpj chpika[k;
bfhz;lhlKoahJ/”
36. The aforesaid extract portion would show that the plaintiff, who is
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the son of Ramanuja Naicker, is attempting to question the correctness of the
judgment and decree passed in the previous cases before the learned District
Munsif at Vanur.
37. As to what is re-litigation has been settled by the Supreme Court
in K.K. Modi v. K.N. Modi, (1998) 3 SCC 573.
38. If a party seeks to re-agitate the very same issue, which has been
concluded by the Court, then the Trial Court or this Court, in exercise of its
power under Article 227 of the Constitution of India, is entitled to nip the
litigation in the bud. If the plaint in O.S.No.21 of 2024 goes for trial, it will
be as if the learned District Munsif will be sitting on appeal over the
judgment and decree of the learned Subordinate Judge in A.S.Nos.32 and 33
of 2011. Such a reversal of hierarchical structure is impermissible. The
entitlement of Ramanuja Naicker over the property, which had come to the
family, had been settled by the judgment of the Additional Subordinate
Judge and its correctness certainly cannot be questioned before the learned
District Munsif.
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39. My understanding of law is that, as against the judgment of the
Additional Subordinate Judge, only this Court, in exercise of the powers
conferred under Section 100 of the Code of Civil Procedure, has the power
to set aside the same and that too, only on answering in favour of the
appellant substantial questions of law. The said power can certainly not be
exercised by the learned District Munsif.
40. The learned District Munsif, as held in T. Arivandandam v. T.V.
Satyapal, (1977) 4 SCC 467, should have been vigilant to exercise the
powers vested with him under Order VII Rule 11 or Order VI Rule 16 of the
Code of Civil Procedure and should have thrown the suit out. Unfortunately
he seems to have entertained it and issued summons in the suit.
41. I must refer to the principles laid down in Ranipet Municipality v.
M.Shamsheerkhan, 1997 SCC OnLine Mad 347. This case is covered by
more than one of the vices pointed out by the learned Judge. If this suit were
to continue on the file of the Court, it would amount to questioning the very
foundation of the hierarchical structure of the Court. I will not permit the
said hierarchical to be reversed. Therefore, I am of the view that the entire
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suit is an abuse of process of court.
42. It invites the Court of lowest jurisdiction to set aside the judgment,
which has been rendered by its superior. The learned District Munsif does
not possess such power nor does the Code of Civil Procedure or the Specific
Relief Act authorise such inversions.
43. In the light of the above discussion, this civil revision petition is
allowed. The suit in O.S.No.21 of 2024 on the file of the learned District
Munsif at Vanur is struck off. The learned District Munsif at Vanur is
requested to pass consequential orders on the basis of the orders passed in
the previous suits and draft a decree striking off the suit from the file of the
court.
44. Since the Appellants in A.S.Nos.32 and 33 of 2011 are said to
have filed two second appeals, this judgment will not come in their way
while agitating the correctness of the judgment and decree of the learned
Subordinate Judge in the said proceedings before this Court.
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45. The civil revision petitioners will be entitled for a cost of
Rs.50,000/- in this revision. Consequently, the connected miscellaneous
petition is closed.
03.09.2024
kan/nl
Index : Yes/No
Speaking order/Non speaking order
Neutral Citation : Yes/No
To
District Munsif, at Vanur
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
nl
https://www.mhc.tn.gov.in/judis
03.09.2024
https://www.mhc.tn.gov.in/judis
