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2000 DIGILAW 230 (MAD)

Ramalingam v. Venugopal and another

2000-02-29

S.S.SUBRAMANI

body2000
JUDGMENT: Plaintiff in O.S.No.726 of 1996 on the file of the Principal District Munsif’s Court at Villupuram, is the appellant. 2. Appellant filed a suit to declare his title to the suit property and for permanent prohibitory injunction, restraining the defendants, their men, servants and agents from interfering in any manner with the peaceful possession and enjoyment of the suit properly and for other incidental reliefs. 3. Appellant alleged that the plaint schedule property originally belonged to one Selvaraj, who obtained it by grant from the Government on 15.12.1973 as per Ex.A-6. Selvaraj sold the same to one Palani Kounder as per Ex.A-4 dated 13.12.1988 and thus Palani Kounder became the absolute owner of the property. Palani Kounder in turn sold the property to Ayyanar as per Ex.A-5 dated 2.8.1994, who was also enjoying the property. The predecessor Ayyanar Kounder sold the property to the plaintiff as per sale deed dated 12.3.1995, evidenced by Ex.A-1 and the plaintiff claims to be in absolute possession of the property as owner. It is also the case of the plaintiff that even if any other person has any title over the suit property, the same is also lost by adverse possession. The plaintiff further alleged that the defendants have no right, title or interest in the suit property, but they are proclaiming in the village that the property is a poramboke property and are attempting to trespass into the same. On 21.9.1996, the defendants attempted to trespass into the suit property, which was prevented by the plaintiff. Since the defendants have got influence in the village, the plaintiff apprehends that the defendants may interfere with his possession, which necessitated the filing of the suit for the reliefs stated above. In the cause of action, it is said that, “it arose at Ponnankuppam Village, where the property is situated; on 15.12.1973, the date, when the plaintiff’s vendor’s vendor got the property from the Government by grant; on 13.12.1998, when the plaintiff’s vendor’s vendor purchased the property by a registered instrument; on 2.8.1994, when the plaintiff’s vendor obtained the property by registered sale deed; on 12.3.1995, when the plaintiff purchased the property from his vendor and on 21.9.1996, when the defendants attempted to trespass into the property all within the jurisdiction of this Hon’ble Court”. 4. In the written statement filed by the defendants, they denied the right of the plaintiff. 4. In the written statement filed by the defendants, they denied the right of the plaintiff. According to them, the suit property is all along a Government poramboke land. It is further said that the defendants are having patta lands on the north and they trespassed into the schedule property, which is situated adjacent to their patta lands. They have spent more than Rs.10,000 for levelling the property. It is also contended by the defendants that plaintiff’s predecessor filed O.S.No.979 of 1994 on the file of the same Court for the same relief on the same cause of action. These defendants also entered appearance through their counsel and filed their written statement and it was during trial, the vendor executed the document in favour of the plaintiff. Counsel for the plaintiff in O.S.No.979 of 1994 reported no instructions and the suit was dismissed for default on 28.6.1995. According to the defendants, the plaintiff will not be getting any right over the property, especially when the earlier suit has been dismissed. It will constitute the res judicata and the suit transaction is also hit by the principles of lis pendens. The claim of adverse possession was also denied. They prayed for the dismissal of the suit. 5. On the above pleadings, parties went on trial. Exs.A-1 to A-13 were marked on the side of the plaintiff and Exs.B-1 to B-8 were marked on the side of the defendants. Oral evidence consists of P.Ws.1 to 5 and D.Ws.1 to 3. 6. After evaluating the entire evidence, the trial Court held that the plaintiff has title to the property. It is not a poramboke land, he is in exclusive possession of the plaint property, but at the same time dismissed the suit on the ground that the present suit is barred under O.9, Rule 9 of the Code of Civil Procedure. The trial Court held that an earlier suit was filed by the plaintiff’s vendor as O.S.No.979 of 1994 for the same relief in respect of the same subject matter on the same cause of action and when that suit was dismissed for default, the present suit is barred under O.9, Rule 9, C.P.C. Trial Court therefore held that even though the plaintiff has got title and possession, he will not be entitled to any relief and consequently, the suit was dismissed as not maintainable. 7. 7. Against the judgment, plaintiff preferred A.S.No.53 of 1998 on the file of the Additional District Judge, Villupuram. The appellate Court also did not disturb the finding of the trial Court regarding the title and possession of the plaintiff over the plaint property, but at the same time, it confirmed the view taken by the trial Court in holding that the suit is barred under O.9, Rule 9, C.P.C. and consequently, the plaintiff is not entitled to any relief. The appeal was dismissed with costs. 8. The concurrent judgments are assailed in this second appeal. 9. The following substantial questions of law have been raised in the memorandum of appeal: (a) Whether the memorandum of understanding between parties recorded through the original of Ex.A-13 based on which the previous suit filed by the plaintiff’s vendor was allowed to be dismissed for non-prosecution did not constitute a different cause of action without attracting the bar under O.9, Rule 9, C.P.C.? (b) Whether the admission of the subsequent arrangement between the parties evidenced by a document (Ex.A-13) did not afford scope for reception of secondary evidence of the same under Sec. 65 of the Indian Evidence Act? 10. Respondents’ counsel was also heard at the time of admission stage itself. Documents relied on by the either party were also produced by filing type set of papers. 11. Both the questions of law could be considered together. 12. Before considering the questions of law, some more facts are necessary for the proper disposal of the second appeal. As said earlier, the defendants have taken a contention that there was an earlier suit as O.S.No.979 of 1994 on the file of the same Court for identical relief, instituted by plaintiff’s vendor. It is also admitted by both sides that the suit was not prosecuted. 13. According to the plaintiff, the suit was not prosecuted in view of the panchayat held on 29.4.1995. Ex.A-1 is dated 12.3.1995 and after he purchased the property, a compromise was entered at the instance of panchayatdars, the same is evidenced by Ex.A-13. Ex.A-13 reads thus: (Emphasis Supplied) 14. Even though the genuineness of Ex.A-13 was challenged by the defendants, the trial Court in para.10 of the judgment, found that Ex.A-13 was signed by the defendants in that suit and a compromise was entered. Ex.A-13 reads thus: (Emphasis Supplied) 14. Even though the genuineness of Ex.A-13 was challenged by the defendants, the trial Court in para.10 of the judgment, found that Ex.A-13 was signed by the defendants in that suit and a compromise was entered. The trial Court further held that the compromise was duly signed by the defendants in the suit and they have also recognised the title of the plaintiff over the schedule property. This finding was not challenged before the lower appellate Court nor it was challenged before me by the learned counsel for the respondents. While considering the scope of O.9, Rule 9 of the Code of Civil Procedure, Ex.A-13 also will have to be taken into consideration. Admittedly, Ex.A-13 was not in existence at the time when earlier suit was filed. The compromise or agreement was entered into only on 29.4.1995 within a few days after Ex.A-1. 15. One of the terms of the compromise or agreement is that existing suit i.e., O.S.No.979 of 1994 shall not be prosecuted by either party and even if any party proceeds with the matter, violating the terms of compromise, it will not be binding on the other party. It further provided that the entire property will have to be measured by Surveyor and on that basis, the parties agreed not to proceed with the suit. After Ex.A-13, the case O.S.No.979 of 1994 was posted on 28.6.1995, on which date, the plaintiff did not present himself and the suit was dismissed for default. The question to be considered is, whether dismissal under Ex.B-8, dated 28.6.1995 bars the plaintiff in instituting the present suit. 16. Much reliance was placed by the learned counsel for the respondent in the decision reported in Suraj Rattan Thirani v. Azamabad Tea Co., A.I.R. 1965 S.C. 295, wherein their Lordships held that the word plaintiff occurring in O.9, Rule 9, C.P.C. will include not only the original plaintiff, but also assigns and legal representatives. The said legal position cannot be doubted, but the question, to be considered in this case is, whether the dismissal of the earlier suit can be said as one for “default” on the part plaintiff and whether the defendants are entitled to plead that bar under O.9, Rule 9, C.P.C. in this case. 17. O.9, Rules 8 and 9 of the Code of Civil Procedure read thus: “8. 17. O.9, Rules 8 and 9 of the Code of Civil Procedure read thus: “8. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” It is clear from the above rules that if the plaintiff does not appear when the suit is called on for hearing and consequently, the suit is dismissed for default, a second suit on the same cause of action is not maintainable. 18. Plaintiff is barred from instituting a second suit, only because since the defendants shall not be vexed twice on the same cause of action. The Court also will have to take into consideration whether there was a default at all on the part of the plaintiff and has failed to appear. Under Rule 8 of O.9, if the plaintiff does not appear when the suit is called on for hearing and when the defendant appears, the Court shall make an order, dismissing the suit. 19. If the parties entered into agreement that they shall not prosecute the suit, can it be said that the plaintiff has failed to appear or there is a default on his part. The question of default will arise only if the plaintiff fails to appear for the purpose of prosecuting the suit. 19. If the parties entered into agreement that they shall not prosecute the suit, can it be said that the plaintiff has failed to appear or there is a default on his part. The question of default will arise only if the plaintiff fails to appear for the purpose of prosecuting the suit. The word ‘default’ means omission, neglect or failure; a failure or omission to do something required; omission to do that which ought to have been done by one of the parties; non-performance of duty; a failure in the performance of an obligation; neglect or omission of a legal requirement; ‘Default’ means omission to do something which the person concerned is legally bound to do. "Default, is a purely relative term, just like negligence. It means nothing more, nothing less, than not doing what is reasonable under the circumstances-not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction. (See P.Ramanatha Aiyar’s The Law Lexicon - 1997 Edition). The word default is not defined in the Code of Civil Procedure. So, naturally, the Court will have to rely only on the meaning as interpreted by various decisions. If we go by the above meaning, it is clear that if there is no neglect or omission on the part of the plaintiff to appear, there cannot be default. If the parties agree that they shall not proceed with the suit and consequently, the suit was dismissed, it cannot be said as a dismissal for default as contemplated under O.9, Rule 8 of the Code of Civil Procedure. The word "default" is of stronger import than negligence. There must be a "failure on the part of the plaintiff" to proceed with the conduct of the suit consequent to his absence. In this case, the plaintiff can never be said to have failed to appear, when he is not in a position to proceed with the suit consequent to the agreement. 20. I have already said that Ex.A-13 is found to be valid by the trial Court, which finding is not disturbed by the appellate Court. In this case, the plaintiff can never be said to have failed to appear, when he is not in a position to proceed with the suit consequent to the agreement. 20. I have already said that Ex.A-13 is found to be valid by the trial Court, which finding is not disturbed by the appellate Court. If the parties have entered into an agreement, consequent on which, the plaintiff did not prosecute the matter and allowed the suit to be dismissed, principle of estoppel will bar the defendant from contending that the suit is barred under O.9, Rule 9, C.P.C. In Sunderabai v. Devaji, A.I.R. 1954 S.C. 82, their Lordships considered the scope of compromise decree. In that case, one Gangabai adopted a son to her deceased husband. Dispute arose between her and her mother-in-law regarding the validity of that adoption. The matter was referred to an arbitrator, who declared that the adoption made by Gangabai was invalid and she has lost that right. But, to purchase peace in the family, the mother-in-law was asked to pay a sum of Rs.8,000 to Gangabai, who in turn agreed that she will not adopt any person. But, basing on some legal advice, Gangabai again adopted, the validity of which, again questioned in a Court of Law. Their Lordships of Hon’ble Supreme Court held that the compromise between daughter-in-law and mother-in-law will not amount to res judicata, but the principle of estoppel will apply in such cases. In paragraph 18 of the judgment, their Lordships held thus: "18. It was further contended by the learned Solicitor-General that on a true construction of term No.2 Gangabai agreed not to adopt a son to her deceased husband Shankar, that the matter had passed from the stage of mere representation into an agreement and that therefore it would be a case of breach of contract, if any. We are afraid that this position cannot avail him. Even though the matter may have passed from the stage of a representation into an agreement, there are cases where the Courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuit of action. We are afraid that this position cannot avail him. Even though the matter may have passed from the stage of a representation into an agreement, there are cases where the Courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuit of action. Authority for this position is to be found in the following passage from Bigelow on Estoppel’, 6th Edition, pp.639-640: "Situations may arise, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favour of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and a circuit of action. In the case before us Gangabai as well as the plaintiff could be deemed to have agreed that Gangabai would not take a son in adoption to her deceased husband Shankar in the future, for the consideration of Rs.8,000 paid by the defendant 1 to the plaintiff. The defendant 1 acted upon this position to her detriment and paid in fact a sum of Rs.8,000 to the plaintiff. The plaintiff accepted this sum of Rs.8,000 and relinquished all rights which he then had or which he could ever have had in the future to the property belonging to the family of Devarao. Gangabai continued to accept maintenance which was passed in her favour and the parties all along acted upon this agreement upto the time that the lawyer advised Gangabai to adopt the plaintiff again after the decision of their Lordships of the Privy Council in - Anant v. Shankar, A.I.R. 1943 P.C. 196 (A). To allow the plaintiff to take up this position now would be encourage a fraud or circuity of action which according to the passage from Bigelow above quoted would be the last thing a Court would ever countenance. Treating it therefore as an agreement or an undertaking given by Gangabai as well as the plaintiff, even so the plaintiff would be estopped from contending that Gangabai had not lost her right of adoption as set out in term No.2 of the award and asserting that she could adopt the plaintiff as a son to her deceased husband on the 12th December, 1943." [Italics supplied] 21. According to me, the above decision bars the defendant from taking a contention that the suit is barred under O.9, Rule 9 of the C.P.C. On the belief that the compromise will be acted upon, the plaintiff did not prosecute the suit and took Ex.A-13 as gentleman’s agreement. The defendant after getting the suit dismissed, again attempted to encroach the plaint property, which necessitated the filing of the present suit. If the contention of the defendant is accepted, it would be encouraging a fraud or circuity of action. The Court can never recognise such an action. If on the representation of the defendant, the plaintiff acted on the same and allowed the suit to be dismissed, it can never be said that the plaintiff has defaulted for not having appeared in Court and consequently, it cannot be said the suit is barred under O.9, Rule 9, C.P.C. The defendant who has taken the benefit of dismissal as per Ex.A-13, cannot now contend the present suit is barred under O.9, Rule 9, C.P.C. 22. In this connection, it may also be noted that in the written statement, the defendants have not raised a plea that the suit is barred under O.9, Rule 9, C.P.C. though it was taken as an issue at the time of hearing. The lower Court has also considered only this issue in rejecting the claim of the plaintiff. The defendant was also well aware that he cannot take up this plea and that is why, he did not take that defence in the written statement. 23. Both the Courts below have not considered the scope of Ex.A-13 and simply held that since the plaintiff failed to appear, a second suit on the same cause of action is not maintainable. The Courts below have omitted to consider a material piece of evidence and if that was considered, the result would have been entirely different. 24. Even on merits of the case, I do not think that the plea of O.9, Rule 9 could be sustained in this case. The law is well settled that for the applicability of O.9, Rule 9, C.P.C. the cause of action must be the same both in the former and in the latter suit. 24. Even on merits of the case, I do not think that the plea of O.9, Rule 9 could be sustained in this case. The law is well settled that for the applicability of O.9, Rule 9, C.P.C. the cause of action must be the same both in the former and in the latter suit. If the cause of action is different, there is no scope for applicability of O.9, Rule 9, C.P.C. In Md.Khalil Khan v. Mahbub Ali Mian, A.I.R. 1949 P.C. 78, their Lordships held what shall be the same cause of action. In paragraph 61 of the judgment, their Lordships held thus: "The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v. Brown, (1889)22 Q.B.D. 128: 58 L.J. Q.B. 120. If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey, (1884)14 Q.B.D. 141: 53 L.J. Q.B. 476. The causes of action in the two suits may be considered to be the same if in substance they are identical." 25. The above decision was followed by the Hon’ble Supreme Court in Gaya Municipality v. Ram Prasad Bhatt, (1967)2 S.C.W.R. 823. In paragraphs 10 to 12 of the judgment, their Lordships held thus: "10. In our view, the present suit is not barred by O.9, Rule 9, C.P.C. The principles for determining whether the causes of action in two suits are different or not were laid down by the Privy Council in Md.Khalil Khan v. Mahbub Ali Mian, A.I.R. 1949 P.C. 78 and referred to with approval by this Court in Suraj Rattan Thirani v. Azamabad Tea Co., A.I.R. 1965 S.C. 295. The only question is whether applying these principles the High Court was right in holding that the cause of action was different in the present suit from that in the 1941 suit. It seems to us that if the two plaints are analysed closely it would appear that in the first suit the cause of complaint was a threat by the defendant municipality to interfere with the alleged rights of the plaintiff by constructing stall immediately to the south of his house. At that time no stalls had been constructed and the alleged rights of the plaintiff had not been actually infringed. At that time no stalls had been constructed and the alleged rights of the plaintiff had not been actually infringed. During the course of the suit the construction of the stalls was commenced, and the same was completed, at some appreciable distance from the house of the plaintiff, after the suit was dismissed for default. Further the complaint in the 1941 suit was that the right to use the footpath just south of the municipal drain was being infringed which footpath was alleged to have been used by pedestrians and customers of the shop of the plaintiff; there was no allegation that his right to access to Halliday Road was being threatened or infringed. In the present suit what is substantially alleged is that the plaintiff had a right to access to the house from all sides of the said plot No.11459 in question abutting and lying in front of the plaintiff’s house. It will also be noticed that the present plaint alleges a permanent deprivation of plaintiff’s alleged right of access to Halliday Road. The constructions are of permanent nature, and, in our view, a fresh cause of action arose when the stalls were constructed in 1942. 11. It was urged that the plaintiff would have amended his plaint and claimed the demolition of the stalls, but there is no obligation on a plaintiff to amend his plaint and include a fresh cause of action in a pending suit. 12. Mr.Sarjoo Prasad relies specially on principles 4 and 5, enumerated by the Privy Council in Mohammad Khalil Khan v. Mahbub Ali Khan, A.I.R. 1949 P.C. 78, but in our view, the causes of action are not in substance identical within principle 4, and it is not because of the character of relief prayed for by the plaintiff that the cause of action is being held to be different in the present case from that of the 1941 case. Evidence in both the cases should be different because the threat to construct was immediately to the south, and that threat did not materialize, and a construction was made at a different place infringing other rights of the plaintiff, and also because in the present case evidence of the construction of the stalls and the agreement of 1952 has to be led." [Italics supplied] 26. In Rakha Singh v. Amrit Lal, A.I.R. 1984 P. & H. 47, His Lordship held in para 7 of the judgment thus: "The words ‘cause of action’ have not been defined anywhere in the Code. The expression means all the facts which are necessary to be proved by the plaintiff in order to obtain a decree in his favour. In order to find out whether the cause of action in two suits is the same or not, it is not only the facts which would entitle the plaintiff to a relief, should be the same but also the infringement of his rights at the hands of the defendants should have arisen in substance out of the same transaction." [Italics supplied] 27. On the basis of these decisions, if we consider the scope of the present suit, I do not think that the same is hit by bar under O.9, Rule 9, C.P.C. Another cause of action i.e., mentioned is, attempted to trespass on 21.9.1996, long after the institution of the prior suit. Ex.A-13 is also a piece of evidence, which the plaintiff will have to prove and it was not available, when the earlier suit was instituted. Ex.A-13 can never be said as irrelevant evidence, when the parties have settled the matter on the basis of agreement. For getting a declaration of title, the plaintiff also relies on Ex.A-13 and subsequent attempt to trespass. So, it is clear from the above facts that the evidence in both the cases is not identical or the same for getting a declaration of title. 28. As stated earlier, the finding of the trial Court that the plaintiff is the absolute owner and he is in exclusive possession of the property was not challenged before the lower appellate Court and that finding has not been disturbed in appeal. Though an argument was put forward by the learned counsel for the respondents, challenging those findings before this Court, once it is found that suit is not barred under O.9, Rule 9 of the Code of Civil Procedure, it has to be held that the plaintiff is entitled to decree as prayed for. Though an argument was put forward by the learned counsel for the respondents, challenging those findings before this Court, once it is found that suit is not barred under O.9, Rule 9 of the Code of Civil Procedure, it has to be held that the plaintiff is entitled to decree as prayed for. The Courts below have not taken into consideration the relevant portions of law and have omitted to consider a material piece of evidence in holding that the suit is barred under O.9, Rule 9, C.P.C. The substantial questions of law are therefore found in favour of the appellant and the second appeal is allowed. 29. In the result, the judgment and decree of the Courts below are set aside and it is declared that the plaintiff in O.S.No.726 of 1996 on the file of the Principal District Munsif at Villupuram, is entitled to decree as prayed for. It is declared that the plaintiff is the absolute owner of the plaint schedule property and the defendants, their men, agents and servants are restrained by a decree of permanent prohibitory injunction from interfering with his peaceful possession and enjoyment thereof. Plaintiff is also entitled to his costs in all the three Courts.C.M.P.No. 1132 of 2000 is closed.