Madras High Court
G.Ramasamy vs P.Krishnan on 12 September, 2024
C.R.P.No.981 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.09.2024
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
C.R.P. No.981 of 2024
and
CMP.No.5033 of 2024
1.G.Ramasamy
2.Kalaiselvi
3.Minor Sarveshram
Rep. by next friend Mother and
Natural Guardian Kalaiselvi ... Petitioners
-Versus-
P.Krishnan ... Respondent
Civil Revision Petition filed under Article 227 of the Constitution of
India to strike off the plaint in O.S.No..35 of 2024 on the file of the Principal
District Judge, Dharmapuri.
For Petitioner : Mr.N.Manoharan
For Respondent : Mr.D.Shivakumaran
ORDER
This civil revision petition is at the instance of the defendants in
O.S.No.35 of 2024 on the file of the learned Principal District Judge at
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Dharmapuri.
2. O.S.No.35 of 2024 is a suit filed by the respondent
(a) for declaration of title;
(b) for declaration that the partition deed executed inter se between the
defendants on 14.07.2023 in document No.2588 of 2023 is null and void and
not binding on the plaintiff;
(c) for permanent injunction restraining the defendants from alienating
the suit schedule mentioned property in favour of any third party; and
(d) for consequential reliefs.
3.For the sake of convenience, the parties shall be referred to as per their
ranks in the suit.
4. O.S.No.35 of 2024 is a second round of litigation between the parties.
Originally the plaintiff had presented O.S.No.220 of 1995 on the file of the
learned Subordinate Court at Dharmapuri seeking partition of joint family
properties into two equal halves and for allotment of the shares in his favour.
The defendant in that suit is the father of the first defendant in the present suit
namely, one P.Govindan @ Govinda Gounder. Govinda Gounder presented
another suit for partition in O.S.No.67 of 1996. The subject matter of the latter
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suit and the subject matter of the present suit is a Cinema Theatre by name “Sri
Palaniyappa Theatre” and the land appurtenant. Due to enhancement of
pecuniary jurisdiction, both the suits came to be transferred to the file of the
Principal District Judge at Dharmapuri and renumbered as O.S.No.101 of 2004
and O.S.No.103 of 2004 respectively.
5. The cases were bound over by the learned Principal District Judge to
the file of the Additional District Court at Dharmapuri. After recording
evidence in both suits, the learned Additional District Judge decreed both the
suits as prayed for on 11.10.2004.
6. Aggrieved by the same, two appeals were preferred before this Court
in A.S.No.109 of 2005 by Govinda Gounder and A.S.No.957 of 2005 by the
present plaintiff.
7. Pending the appeals, on account of mediation that had been carried on
between the parties, a compromise was arrived at between them. Both appeals
came to be disposed of by a compromise decree passed by a Division Bench of
this Court on 23.12.2005. In terms of the compromise, there were three
schedule – 'A', 'B' & 'C'. A schedule mentioned properties fell to the share of
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Govinda Gounder and the defendants herein and B schedule mentioned
properties fell to the share of plaintiff and his family members. There is no
dispute with respect to these two schedules.
8. The Cinema Theater, the subject matter of this suit was denominated as
C schedule to the compromise deed. The plaintiff agreed to receive a sum of
Rs.15,00,000/- from the first defendant and the predecessor-in-interest of
defendants 2 and 3 to give up his rights over the property. The compromise also
records that during the lifetime of the first defendant and his brother, the
property will be enjoyed by their father, Govinda Gounder. The compromise
also recorded that out of Rs.15,00,000/-, a sum of Rs.4,00,000/- had been paid
by the first defendant and his brother leaving a balance of Rs.11,00,000/- to be
paid on or before 28.02.2006 to the plaintiff.
9. It is the case of the plaintiff that a sum of Rs.11,00,000/- had not been
paid and since final decree was not passed in terms of clause 9 of the
compromise decree, he became the owner of the property. He would plead that
the defendants inter se entered into a partition deed on 14.07.2023, by which
they divided the properties, which is the subject matter of the suit. He would
state that this document was not registered by the Sub Registrar and therefore,
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the first defendant had presented a writ petition in W.P.No.6644 of 2023 and
had obtained an order for registration and it was only thereafter, the partition
deed was registered.
10. The plaintiff would plead that on coming to know about this
document, he lodged a police complaint on 10.03.2023 which was countered by
the first defendant by lodging another complaint on 25.03.2023. Since he is the
owner of the property and feared that his possession is being interfered with by
the defendants along with their henchmen, he came-forth with the suit for the
aforesaid reliefs.
11. On service of summons, the defendants have filed this revision.
According to the defendants, the balance sum of Rs.11,00,000/-, that was to be
paid pursuant to clause 4 of the compromise decree, had been paid on
27.02.2006 to the plaintiff. They also received an acknowledgement from the
plaintiff to that effect. They would state that the first defendant and his brother
had taken possession of the property and it was being managed by Govinda
Gounder as long as he was alive. They would plead that both Govinda Goundar
as well as the husband of the second defendant and the father of the third
defendant, namely, Panneerselvam passed away intestate. Consequently, the
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property devolved on them which they partitioned by way of document dated
08.02.2023.
12. The defendants would point out that Ganesamoorthi, one of the sons
of the present plaintiff filed a suit against his father/plaintiff herein and his
brother Sundharamoorthy for partition of the present suit schedule mentioned
property in O.S.No.20 of 2023 on the file of the Principal District Judge at
Dharmapuri. Immediately on coming to know about that their property was
sought to be partitioned, the defendants moved an application to implead
themselves in the said suit. This application in I.A.No.3 of 2023 in O.S.No.20
of 2023 came to be allowed on 17.08.2023. Instead of carrying out the
amendment and proceeding further with the suit, this O.S.No.20 of 2023 was
withdrawn on 21.11.2023. Soon thereafter, the present suit for declaration of
title seems to have been filed.
13. The defendants would state that the dispute between the parties had
been settled by way of the compromise decree dated 23.12.2005 to which the
plaintiff is a party and after a lapse of nearly 19 years, the present suit has been
filed for declaration of title without challenging the compromise decree. They
would plead that by virtue of the compromise decree, the properties have
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already been conveyed to them and therefore, this suit is abuse of process of
law and deserves to be struck off.
14. The defendants would further add that since it is an abuse, the parties
need not resort to an application under Order VII Rule 11 of the Code of Civil
Procedure and they can approach this Court in the exercise of powers vested in
it under Article 227 of the Constitution of India seeking the reliefs as they have
sought for.
15. This revision was entertained by this Court and notice was taken by
Mr.D.Sivakumaran.
16. I have heard Mr.N.Manoharan for the civil revision petitioners and
Mr.D.Sivakumaran for the respondent.
17. Mr.N.Manoharan would contend that the suit is an abuse of process
of law and therefore, the revision is maintainable. He would plead that the
plaintiff is trying to re-agitate the issue which has been settled by the
compromise decree and hence, should not be encouraged by this Court. He
would add that even without seeking a declaration the compromise deed is bad,
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the plaintiff has brought forth this suit.
18. Per contra, Mr.D.Sivakumaran would submit that the receipt that had
been produced in the typed set of papers is a forged and fabricated one. He
would state that the plaintiff has accepted the compromise deed, but not the
alleged payments said to have been made by the first defendant and his brother
on 27.02.2006. He would state that whether the said amount was paid or not
cannot be a subject matter of revision as it requires factual findings and
therefore, he would plead that the parties would have to be relegated for a
detailed trial. He would state that in case the parties are sent for trial, the
plaintiff will be in a position to prove that the receipt dated 27.02.2006 is a
forgery and that he is entitled to the suit schedule mentioned property by virtue
of the purchase made by him on 30.07.1979.
19. I have carefully considered the arguments on both sides.
20. At the outset, I would have to decide on the maintainability of this
revision. This issue arises because of a view that had been taken by my learned
brother Mr.Justice D.Bharatha Chakravarthy in N.Periyasamy vs. Mohamed
Balaldeen in CRP(MD) No.671 of 2022 dated 23.08.2024. He had taken a view
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that by virtue of the judgment in Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai and others Vs. Tuticorin Educational Society and Others,
(2019) 9 SCC 538 and Surya Dev Rai Vs. Ram Chander Rai and Others,
(2003) 6 SCC 675, while the power to nip a vexatious plaint at the bud is
available to the court, it should not be exercised unless contesting the
proceedings itself would be injustice to the parties or on the basis of urgency
involved in the proceedings.
21. A perusal of this judgment shows that my brother had not taken a
view that the civil revision petition itself is not maintainable. He had only stated
that while exercising the power to nip the proceedings in the bud, this Court
must also see whether there is any urgency or whether relegating the parties to
contest the matter before the trial court would itself be amount to injustice.
22. It is here that I shall usefully refer to the judgment of this Court in
T.P.Kathiresan vs. R.Ramadas, 2020 (2) MWN (Civil) 768. The Hon'ble
Mr.Justice R.Subramanian had held that directing the party to avail an alternate
or efficacious remedy available under the Code of Civil procedure is a self-
imposed restriction by the Court. He would hold that a party cannot take
advantage of such self-imposed restrictions to defeat just claims or to sustain
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wholly obnoxious abuse of process of law. He would point out that the Court
cannot close its eyes and drive the parties to a regular remedy under Order VII
Rule 11 of the Code, when the dereliction on part of the court below in
entertaining the suit, is brought to the notice of the High Court.
23. Hence, a reading of both the aforesaid judgments would lead me to a
conclusion that a revision under Article 227 is maintainable to strike off the
plaint when there is an abuse of process of court, and the Court would be failing
in its duty in case it does not exercise its power when the continuation of the
proceedings before the Trial Court would amount to injustice or when it is an
abuse of process of law.
24. Now turning to the facts of the case, I would agree with
Mr.D.Sivakumaran that this Court cannot render a finding whether the alleged
receipt issued by the plaintiff to the first defendant and his brother on
27.02.2006 is valid and genuine. In order to reach that conclusion, it requires
some evidence to be recorded and this Court would normally not record
evidence in a revision under Article 227. Therefore, I have to proceed as if the
payment had not been made and still see whether the suit should remain on the
file of the Court.
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25. The undisputed facts are that the brothers, Krishnan and Govinda
Gounder and their other family members entered into a compromise deed on
23.12.2005. The parties to the compromise deed are
(i) Govinda Gounder, son of Palanivel Gounder,
(ii) Mr.Ramasamy (1st defendant herein),
(iii) Paneerselvam (ii and iii are sons of Govinda Gounder),
(iv) Krishnan, son of Palanivel Gounder,
(v) Kamalam, wife of Krishnan,
(vi) Ganesamoorthi, and
(vii)Sundaramoorthy (vi and vii are the sons of Krishnan).
The aforesaid persons constituted a Hindu Joint Family and had acquired
several properties. On account of the fact that Govindan Gounder and his
brother could not co-exist in that status, the suits came to be filed in the years
1995 and 1996.
26. On account of enhancement of pecuniary jurisdiction of the Civil
Courts, the said suits stood transferred to the file of the Additional District
Judge at Dharmapuri and were renumbered as O.S.No.101 of 2004 and
O.S.No.103 of 2004. The suits were decreed on 11.10.2004. Against the said
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decrees, two appeals were preferred to this Court by Govinda Gounder and
Krishnan in A.S.No.109 of 2005 and A.S.No.957 of 2005 respectively. Pending
the litigation, the parties compromised the same.
27. I am now concerned only with the property denominated as 'C'
schedule in the compromise decree. I am extracting the relevant clauses of the
compromise decree for the purpose of easy appreciation:
“3. In respect of C schedule properties even though
there is a decree by which half of the same has been given to
Govinda Goundar and the remaining half share to
Krishnan, due to the understanding and agreement between
the parties, due to the advise of common friends and people,
that to compromise the entire right of Krishnan, Ramasamy
and Pannerselvam shall have to pay Krishnan a sum of
Rs.15,00,000/- (Rupees fifteen lakhs only) jointly and that
Krishnan shall relinquish all his rights in the C schedule
properties in favour of Ramasamy and Pannerselvam.
4) Ramasamy and Pannerselvam have initially paid
the sum of Rs.4,00,000/- (Rupees four lakhs) out of
Rs.15,00,000/- on 21.11.2005 and the balance of
Rs.11,00,000/- (Rupees eleven lakhs) shall be paid by them
within three months from 21.11.2005 before the 28.02.2006
to Krishnan and obtain the necessary documents and take
possession of the C schedule property.
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5) Sri Palaniyappa Cinema Theatre which is the C
Schedule Property even though the full right is favour of
Ramasamy and Pannerselvam, that Ramasamy and
Pannerselvam shall hand over possession in favour of
Govinda Goundar and he shall enjoy the said property till
his death with out encumbering the same and thereafter that
after the death of Govinda Goundar, the said C Schedule
Property shall go to Ramasamy and Pannerselvam and they
can get absolute right over the same.
6) The said Ganesamurthy has no objection to set
aside the decree made in the suit filed by him in O.S.No.672
of 1995 before the District Munsif Court, Karur, that he
shall also undertakes that he shall not claim an right over
suit property therein in the future.
7) The said Kamalam has no objection to set aside the
decree made in O.S.No.673/95 before the District Munsif
Court, Karur, that she shall also undertakes that she shall
not claim any right over the same in the future.
8) That Govinda Goundar, Ramasamy, Pannerselvam,
Krishnan, Kamalam, Ganesamurthy and Sundaramurthy
shall withdraw all the Civil, Criminal and appeal cases filed
by them and that as per the above compromise they file
necessary petition in the concerned courts and obtain the
final orders in terms of the compromise made in supra.
9) That all the parties concerned shall cooperate with
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each other for mutations of the individual names in the
revenue records and other records in terms of this
compromise as mentioned supra.”
28. A perusal of these clauses shows that the plaintiff had given up his
right over the C schedule mentioned property in favour of the first defendant
and his brother on receipt of Rs.15,00,000/-. Clause 4 of the compromise decree
records that the plaintiff herein had received a sum of Rs.4,00,000/- leaving a
balance of Rs.11,00,000/- to be paid on or before 28.02.2006. Taking the
averment in the plaint to be true, it is the plea of the plaintiff that since the
amount of Rs.11,00,000/- had not been received and as no final decree was
passed, he became the owner of the property.
29. Clause 3 of the compromise decree makes it very clear that on receipt
of Rs.15,00,000/-, the plaintiff shall relinquish all his rights in the C schedule
property. Clause 5 records that the full right is in favour of the first defendant
and his brother Pannerselvam. Pursuant to the said compromise decree, the
defendants claim that they have become the owners of the suit schedule
mentioned properties and therefore entered into the partition deed. On reading
the compromise decree, I am able to see several insurmountable obstacles in the
path taken by the plaintiff.
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30. Even if I were to assume that the sum of Rs.11,00,000/- had not been
paid by Ramasamy and Pannerselvam to Krishnan, there is no default clause in
the compromise decree stating that the title vests with the plaintiff. This is
because by virtue of the judgment and decree of the Courts in O.S.No.101 and
103 of 2004 dated 11.10.2004, all that Krishnan could have enjoyed is a decree
for 1/2 share in C schedule mentioned property. It is nowhere stated in the
plaint how this 1/2 share would bloom into an absolute share in favour of the
plaintiff for him to present a suit for declaration of title. Therefore, in order to
claim an absolute right over the property, it is the duty of the plaintiff to seek
for cancellation of the compromise decree as well as setting aside the
preliminary decree that had been passed by the learned Additional District
Judge on 11.10.2004. Unless and until these reliefs of cancellation and setting
aside are sought for, the plaintiff cannot succeed in a suit.
31. At this juncture, I have to note that a suit for setting aside of a
compromise decree is not maintainable. This is by virtue of Order XXIII Rule
3-A of the Code of Civil Procedure. A reading of the plaint shows that the
plaintiff is not disputing the compromise. I am able to see why the plaintiff
accepts the compromise. He has taken the benefit of the compromise by getting
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the title to the B schedule property. Further the plaint also agrees that in terms
of the compromise, the plaintiff had received a sum of Rs.4,00,000/- from the
first defendant and his brother Pannerselvam. At best, the plaintiff can have a
claim over the alleged non payment of Rs.11,00,000/-. Hence, I conclude that
the claim of the plaintiff for declaration of title is absolutely without any basis.
32. It is here that I can usefully refer to the judgment of the Supreme
Court in Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566. In
paragraph 17 of the said judgment, the Supreme Court had held that in case a
party wants to avoid a consent decree, then the remedy to that party is to
approach the very Court which recorded the compromise and establish that
there is no such compromise. Such a course of action had not been adopted by
the plaintiff in the present case.
33. The compromise that had been arrived at was before this Court and I
failed to appreciate how the plaintiff could have approached the District Court
with a suit which is the subject matter of this revision. Even if the amount is not
paid, the remedy of a party as pointed out in the aforesaid judgment is to move
for execution of that portion of the decree, which is capable of being executed.
In addition, by accepting Rs.4,00,000/- out of Rs.15,00,000/-, the plaintiff had
acted upon the compromise arrived at for 'C' schedule property
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34. The plaintiff is entitled to monies by virtue of the compromise deed
and in case the said amount was not paid, the plaintiff could have always filed
an execution petition seeking attachment and sale of the properties of the first
defendant and his brother Pannerselvam for the amounts that remained unpaid
under the compromise decree. He also had an option to approach this Court
stating that since the first defendant and his brother had not kept up that part of
the compromise, the compromise requires to be recalled and nullified. None of
these procedures as contemplated by law had been followed by the plaintiff.
Instead, he has been emboldened to move the District Court seeking a
declaration of his title with respect to the properties covered under the
compromise. This is an indirect attempt to set aside the compromise as well as
the decree of partition against which the regular appeals were preferred to this
Court. Such an attempt is ex facie an abuse of process of court.
35. Furthermore, a careful analysis of the compromise would show that it
was a composite compromise decree bringing an end to all the litigations that
was existed in the family. In Hari Shankar Singhania and others v. Gaur Hari
Singhania and other, (2006) 4 SCC 658, the Supreme Court had laid down the
manner in which the family arrangement or settlement should be interpreted by
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the Court. It specifically held that the technicalities including the plea of
limitation etc., should not be put at risk of implementing a settlement that has
been arrived at between the family. Such settlements are arrived at for
maintaining peace and harmony in the family. The Supreme Court declared that
a court, while dealing with such compromises, should lean in favour of
settlement of disputes that have been entered into in a bonafide manner to
maintain peace and to bring about harmony in the family.
36. My reading of the compromise recorded by this Court on 23.12.2005,
especially clauses 6 to 8, would show that by virtue of the said compromise, all
civil, criminal and other proceedings which were pending at that time were to
be settled. If the District Judge is permitted to re-open the same, I feel it would
be contrary to the verdict of the Supreme Court laid down above.
37. The compromise decree is a composite compromise decree putting an
end to all the disputes that arose between the parties. If the plaintiff were to be
permitted to re-agitate the issues, which had been settled by way of
compromise, it amounts to mocking the very compromise that found approval
at the hands of a Division Bench of this Court. I am not willing to accept that
Courts subordinate to this Court possess the jurisdiction to question the
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implementation of the compromise recorded by this Court. In fact, the
compromise decree entered into between the parties operates as an estoppel as
laid down by the Supreme Court in Compack Enterprises India (P) Ltd. v.
Beant Singh, (2021) 4 CTC 119.
38. Insofar as the plea of Mr.D.Shivakumaran that no final decree had
been passed in terms of Clause 9 and hence, the compromise must be treated
only as a preliminary and not as an executable final decree is concerned, I am
not agreeable with the said submission. A court at the stage of preliminary
decree does not pass an executable decree. All that it does is declare the shares
of the parties, leaving it open for the parties to approach the Court for passing
of a final decree or for the Court to suo motu initiate final decree proceedings.
This is because, it is only the final decree which is an executable decree. The
compromise decree, as seen in the present case, operates as a final decree in
itself.
39. I have already noted that the compromise decree is a composite one,
which had put an end to all the litigations between the parties. Therefore, the
compromise decree passed on 23.12.2005 is in effect of a final decree. This is
because, it not only declared the shares of the respective parties but also dealt
with the allotment of the said shares, which is normally the duty of the Court at
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the time of passing the final decree.
40. As per clause 1, the property covered under A schedule went to
Govinda Gounder and the members of his branch and B schedule property went
to the plaintiff and his branch members. C schedule property fell to the share of
the first defendant and his brother Pannerselvam. Therefore, the compromise is
in effect a preliminary and final decree rolled into one and it does not require a
separate final decree to be passed for the purpose of converting it into an
executable decree.
41. My reading of clause 9 does not show that it contemplated a final
decree to be filed. The purpose of clause 9 is to enable the parties to update the
revenue records in line with the compromise decree.
42. In the light of the above discussion, if the suit were to continue on the
file of the learned District Judge, it would be granting premium to the plaintiff
to re-agitate the issue that he had lost as early as 2004 before the Additional
District Judge and concluded by the compromise before this Court in the year
2005. Hence, it is an abuse of process of Court and deserves to be struck off.
See, K.K. Modi v. K.N. Modi, (1998) 3 SCC 573.
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43. The suit in O.S.No.35 of 2024 shall be struck off the file of the
learned Principal District Judge at Dharmapuri. The learned Principal District
Judge is requested to record that the suit has been struck off and pass
consequential orders for the purpose of consigning the suit to his records.
Having come to this conclusion, I cannot leave the plaintiff remediless.
44. The plaintiff pleads that under clause 4, he is entitled to
Rs.11,00,000/-, the balance after having received Rs.4,00,000/- from the first
defendant and his brother Pannerselvam. As pointed by the Supreme Court, the
appropriate remedy in case the amounts had not been paid is to approach the
Division Bench of this Court and seek for appropriate directions. At this stage,
the plaintiff can always urge that the receipt that has been produced by the first
defendant and his brother is fabricated and forged one.
45. As seen from the records, the plaintiff and his sons attempted to
partition the property, which is the subject matter of the compromise previously
and after having withdrawn the same, filed this suit for declaration of title.
They have never attempted to approach this Court, which they are entitled to
under law, but wanted to litigate, indirectly, the correctness of that compromise
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decree passed by this Court before the learned District Judge. Hence a cost of
Rs.25,000/- is imposed on the plaintiff for having abused the process of the
court.
46. Granting liberty to the plaintiff to take appropriate measures as is
open to him under law, the civil revision petition stands allowed.
Consequently, the connected miscellaneous petition is closed.
12.09.2024
nl
Index : Yes/No
Speaking Order/Non-speaking order
Neutral Citation : Yes/No
To
1.The Principal District Judge, Dharmapuri.
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V.LAKSHMINARAYANAN, J.
nl
12.09.2024
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