Marathal vs Palanisamy
2025 Latest Caselaw 2611 Mad

Citation : 2025 Latest Caselaw 2611 Mad
Judgement Date : 7 February, 2025

Madras High Court

Marathal vs Palanisamy on 7 February, 2025

Author: N.Sathish Kumar

Bench: N. Sathish Kumar

                                                                                   AS No.1141 of 2024




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                   DATED: 07.02.2025
                                                         CORAM
                              THE HONOURABLE MR JUSTICE N. SATHISH KUMAR
                                                   AS No. 1141 of 2024
                                                & CMP No.29326 of 2024

                     1.Marathal,
                     2.Manonmani
                     3.Chitra
                     4.Lakshmi
                                                                                     Appellant(s)
                                                            Vs
                     1.Palanisamy
                     2.Vadivel
                                                                                   Respondent(s)


                                  Prayer:   This Appeal Suit has been filed against the fair and

                     decreetal order of the II Additional District and Sessions Court at Tiruppur,

                     dated 15.02.2024 in IA.No.1 of 2023 in O.S.No.603 of 2023.



                     For Appellant(s):
                                      Mr.P.Valliappan, Senior Counsel, for Mr.S.Sithirai
                                      Anandam
                     For Respondent(s):
                                      M/s. N.S.Suganthan, for R1 & R2



                     1/8
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                                                                                          AS No.1141 of 2024




                                                             ORDER

This Appeal Suit has been filed against the fair and decreetal order of

the II Additional District and Sessions Court at Tiruppur, dated 15.02.2024

made in I.A.No.1 of 2023 in O.S.No.603 of 2023.

2.Challenge in this Appeal is made to the order of the trial Court

rejecting the suit filed for partition. The suit has been filed by the

appellants claiming partition of the first item of the suit properties and to

divide the property into equal share and allot one share to the first plaintiff

and also for a consequential declaration to declare the sale deeds executed

in favour of the second defendant as null and void and similarly, a lease

deed dated 03.02.2023 which was executed in favour of the third

respondent.

3. To reject the said suit, an application in IA No.1 of 2023 has been

taken out by the respondent/ first defendant. It is the contention of the

respondent that the suit properties were already the subject matter of the

earlier suit in O.S.No.8 of 1998, which was filed for partition. In the said

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suit, a final decree came to be passed on 11.11.2011. The plaintiff in the

present suit is also one of the parties in the above suit. Therefore, once the

decree has reached finality, the second suit is not maintainable for the same

relief.

4. Resisting the said I.A., a counter has been filed by the appellants,

contending that the judgment and preliminary and final decrees passed in

the earlier suit in O.S.No.8 of 1998 are erroneous and there was no

discussion in the judgment with respect to the origin of the properties and as

to how the first petitioner is entitled to the suit properties and how the entire

properties became ancestral in nature and that it is well settled law that

limitation is a mixed question of law and the plea of res-judicata also has to

be considered only during trial. However, the trial Court, considering the

admitted fact that the present suit properties are the subject matter of earlier

suit properties, which suit reached its finality, has rejected the suit.

Challenging the same, the appellants have filed the present Appeal.

5.The learned Senior counsel for the appellants would submit that in

fact, the appellants found registered a Will in respect of the subject

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properties which was in existence, but unfortunately, the same has not been

brought to the notice of the trial Court on earlier occasion. Therefore, the

present suit has been filed. According to him, the limitation aspect and the

plea of res-judicata can be gone only at the time of the trial. Therefore, at

this stage, the suit cannot be rejected at the threshold.

6. Heard the learned counsel on either side and perused the entire

materials placed on record.

7. In the light of the above submissions, the point that arises for

consideration is, 'whether the trial Court is right in rejecting the suit?

8. It is not denied by both the sides that the subject matter of the

present suit in O.S.No.603 of 2023 is already the subject matter of the suit

in the earlier suit in O.S.No.8 of 1998, wherein, a preliminary decree has

been passed. An application was filed to set aside the preliminary decree in

I.A.No.4 of 2004, which also came to be dismissed. Thereafter, it appears

that the matter had reached finality and a final decree has been passed.

The present suit is filed for the similar relief of partition. Though, the

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grounds for rejection of the plaint will not strictly apply, this Court is of the

view that still the suit cannot be allowed to be continued and if the suit is

allowed to be continued, it is nothing but a clear abuse of process of law.

The suit can be rejected at the threshold on the ground of re-litigation. The

Apex Court has held in the case of “K.K.Modi Vs. K.N.Modi” reported in

1998-3-SCC-573, considering the fact that once the suit has already reached

finality, the subsequent suit for similar relief, certainly can be rejected on

the ground of re-litigation.

9. In this regard, it is relevant to refer the judgment in

“T.Arivanandam Vs. T.V.Satyapal” reported in AIR 1977 SC 2421,

wherein the Honourable Supreme Court has held that

“Here is an audacious application by a determined engineer of fake litigations asking for special leave to appeal against an order of the High Court on an interlocutory application for injunction. The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and makes decrees with judicial seals brutum fulmen. The long arm of the law must throttle such, litigative caricatures if the confidence and credibility of the community in the judicature is to survive.

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10. In the judgment in “K.K.Modi Vs. K.N.Modi” reported in

1998-3-SCC-573, the Honourable Supreme Court has held as follows :

“One of the examples cited as an abuse of the process of the Court is re litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re litigate the same issue which has already been tried and decided earlier against him. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the court. A proceeding being filed for collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court.”

11.Since the earlier suit is already reached finality and final decree

has been passed, the present suit is nothing but an abuse of the process of

the Court. The present suit is nothing but a re-litigation and it amounts to

sheer abuse of process of Court and it is contrary to justice and public

policy.

12.In view of the above, I do not find any merit in this Appeal.

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Accordingly, the Appeal is dismissed. No costs. Consequently, connected

miscellaneous petition is closed.

07.02.2025

Index : Yes/No Speaking order:Yes/No dn

To The learned II Additional District and Sessions Judge at Tiruppur,