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2006 DIGILAW 3302 (MAD)

Sakuntala Ammal v. E. Ravi & Another

2006-12-01

P.JYOTHIMANI

body2006
Judgment :- (PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the decreetal fair order passed in I.A.No.628 of 2003 in O.S.No.113 of 2001 on the file of the District Munsif Court, Arni dated 06.08.2004.) The first defendant in the suit is the revision petitioner. The revision is directed against the order of the Trial Court in dismissing the application filed by the first defendant in I.A.No.628 of 2003 in O.S.No.113 of 2001 praying for dismissal of the suit. 2. It is seen that the first respondent has filed the suit in O.S.No.113 of 2001 against the petitioner herein and the second respondent praying for a decree of permanent injunction against the petitioner herein from interfering with his right of carrying on engineering business in the schedule shop by enforcing the order in E.P.No.120 of 2000. It is the case of the petitioner that the petitioner and the second respondent are sisters and there was one other sister, each one of them have divided among themselves one shop each. The second respondent with a desire of usurping all the three shops, has filed a suit, which went up to the High Court in the second appeal and was ultimately dismissed. That was a first round of litigation in Second Appeal No.1749 of 1979 and the second round of litigation upto Second Appeal No.212 of 1992 are filed by the second respondent, who failed upto this Court and it was there after, the petitioner has taken possession of one shop which is the suit property. After possession was taken the second respondent has again trespassed into the property and put up a shed and it was in those circumstances, the petitioner was constrained to file a suit in O.S.No.331 of 1994 for possession after removing the super structure and the said suit was decreed. 3. The first appeal as well as the second appeal filed by the second respondent were also dismissed. Ultimately, in the Second Appeal No.1394 of 2000 it was dismissed with cost. It was there after E.P.No.183 of 2001 was filed and the Executive Court has ordered delivery. It was at that time, the first respondent who is the son of the second respondent in collusion with the second respondent, has filed the present suit in O.S.No.113 of 2001 in the prayer stated above. 4. It was there after E.P.No.183 of 2001 was filed and the Executive Court has ordered delivery. It was at that time, the first respondent who is the son of the second respondent in collusion with the second respondent, has filed the present suit in O.S.No.113 of 2001 in the prayer stated above. 4. Before filing of the present suit, the first respondent has filed an application under Section 47 of the Civil Procedure Code, making a claim in the execution petition filed by the petitioner in E.P.No.183 of 2001, claiming as if, the portion was left out to the first respondent by the second respondent. It was rejecting the said application, E.P. was ordered as stated above against which the first respondent has filed a C.R.P. in this Court and that was dismissed. Ultimately, when the first respondent has filed a Special Leave petition before the Hon’ble Supreme Court, the same was dismissed, recording an undertaking and consequently directing the first respondent to deliver possession of the suit property to the petitioner. 5. It was there after, without obeying the undertaking given before the Hon’ble Supreme Court, the petitioner has filed the present suit as stated above. In the pending suit he has also filed an Interlocutory Application and there was an order of injunction granted by the court. Ultimately, after vacating the said order, the petitioner has taken possession. It was in those circumstances, the petitioner has filed I.A.No.628 of 2003 to dismiss the suit and that was dismissed by the Trial Court, on the basis of coming to a conclusion that the petitioner is not a party in the suit and the suit has been filed by the first respondent claiming right under the second respondent. The Trial Court has also found that when a contempt application was filed, the petitioner was not a party and as per the undertaking in the Hon’ble Supreme Court, the first respondent has handed over the possession to the mother, the second respondent and in view of the same, holding that the petitioner has no locus standi to file the application, the application came to be dismissed. It is as against the same, the first defendant in the suit has filed the present revision. 6. Even though notice has been served on the first and the second respondents, no one appeared. It is as against the same, the first defendant in the suit has filed the present revision. 6. Even though notice has been served on the first and the second respondents, no one appeared. Mr.P.Sesadri learned counsel appearing for the petitioner would vehemently contend that this is a classic instance of the abuse of process of law to the maximum possible extent by the respondents in collusion, especially, in the circumstances that the respondents are son and the mother. He also would submit that the second respondent, namely, the mother of the first respondent, having failed in her attempts to usurp the property from the petitioner in the two rounds of litigation, which went upto the High Court, and after giving the possession then to trespassed into the property, it has necessitated the petitioner to file a suit for possession and that was decreed and that was also taken upto High Court which means the third round of litigation. It was after succeeding in all the forums in the three rounds, the petitioner when ultimately filed the Execution Petition, the second respondent has set up his son the first respondent to file an application under Section 47 of the Civil Procedure Code and it was that the Civil Revision petition filed by the first respondent was dismissed by this Court and ultimately the Hon’ble Supreme Court has given a direction to hand over possession. 7. It was in spite of the specific undertaking given in the Hon’ble Supreme Court, since the respondent has failed to hand over possession to the petitioner, the petitioner has to approach the Execution Court for the purpose of executing the decree for possession which was obtained and it was in those circumstances, the present suit came to be filed. Therefore, according to the learned counsel for the petitioner, this is a gross abuse of process of law and the learned Trial judge has not taken the same into consideration, however, has dismissed the petition on the technical ground, as if, in accordance with the undertaking in the Hon’ble Supreme Court, the first respondent has handed over the possession to the second respondent and therefore, the petitioner has no locus standi. 8. I have heard the learned counsel for the petitioner as also perused the entire records. 9. The facts as stated above, are clearly born on record. 8. I have heard the learned counsel for the petitioner as also perused the entire records. 9. The facts as stated above, are clearly born on record. The present revision petition is filed under Article 227 of the Constitution of India by invoking the supervisory power of this Court. The entire facts which I have narrated shows that it is no doubt true, an abuse of process of law and the suit cannot be allowed to start another round of litigation, especially, in the circumstance that admittedly, the petitioner has obtained a decree for possession against the respondents in respect of the suit property. I do not understand as to how the learned Trial judge has come to a conclusion as if, the petitioner is not a party in the proceedings. A reference to the order of the Hon’ble Supreme Court in the contempt application also shows that the petitioner is a party. 10. In these circumstances, the order of the learned Trial judge passed in I.A.No.628 of 2003 stands allowed and consequently, O.S.No.113 of 2001 dated 06.08.2004 stands dismissed as struck off from the register on the basis that it is a gross abuse of process of law. No Costs. Consequently, connected C.M.P.is closed.