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2007 DIGILAW 1965 (MAD)

Maruthammal v. Kannammal & Others

2007-06-29

S.ASHOK KUMAR

body2007
Judgment :- As against the dismissal of the Interlocutory Applications filed by the revision petitioner/6th defendant under Order 6 Rule 11 CPC to reject the suit the present revision is filed. 2. According to the revision petitioner, the suit is not maintainable on the ground that the suit based on the Will only the court of Probate has the exclusive jurisdiction. Already O.S.No:1512 of 1989 before the I-Additional District Munsif, Coimbatore was filed and final decree was passed on 33. 1994 an the same stands confirmed in Appeal No.270 of 1999 before the I-Additional District Judge, Coimbatore, wherein the first respondent/plaintiff also participated and therefore the proceedings and the decree is binding on her. Final decree application in I.A.No:1900 of 1991 was filed by the revision petitioner and the suit property was divided by the Advocate Commissioner and report and plan also filed. But the first respondent/plaintiff and her daughter collusively filed the present suit to defraud the property of the revision petitioner. Previously, the first defendant filed the suit O.S.No.530 of 1994 and got the ex parte decree against the revision petitioner. But that was challenged in Appeal No:270 of 1999 which was allowed and decree passed in O.S.No:530 of 1994 was set aside. In that suit court fees under Section 40 of the Court Fees Act was paid for cancellation of decree passed in O.S.No:1512 of 1989. Now this suit has been valued under Section 25(1) r/w 27(c) of the Court Fees Act. The property value was fixed at Rs.10,000/= on 112. 1989 whereas the very same property is valued at Rs.3,00,400/= in the suit. The description of the property is misleading. The plaintiff was never in possession of the suit property. The suit is prima facie bereft of valid cause of action and wrong payment of court fee. The suit is bad on the ground of non joinder, and mis joidner of necessary parties. Further, the suit is bared under Section 11 CPC as hit by rule of res judicata. Hence the Interlocutory Application to reject the suit. 3. The first respondent/plaintiff resisted the Interlocutory Application contending that the suit O.S.No:1512 of 1989 was not decided finally and final decree was passed as seen from the Suit Register Extract. In I.A.No.1900 of 1991 Advocate Commissioner was appointed to divide the property but no final decree was passed. Hence the Interlocutory Application to reject the suit. 3. The first respondent/plaintiff resisted the Interlocutory Application contending that the suit O.S.No:1512 of 1989 was not decided finally and final decree was passed as seen from the Suit Register Extract. In I.A.No.1900 of 1991 Advocate Commissioner was appointed to divide the property but no final decree was passed. Even, if final decree is passed it is except the share of the revision petitioner and therefore the plaintiff has got right to claim over the rest of the property. The suit in O.S.No:530 of 1994 was decided on merits, and the suit property was valued at Rs.10,000/=, and now the suit value has been raise to Rs.3,00,000/= and hence the suit is valued as such. The suit is pending from 197 and the revision petitioners son has also participated in the proceedings throughout. 4. The learned II-Additional Subordinate Judge, considering the merits of the pleadings and submissions dismissed the application holding that the title of both the parties has not been decided by any of the earlier proceedings and therefore the suit is maintainable. Aggrieved of the same, the present revision is filed. 5. It is pertinent to note that with regard to the same cause of action a suit for partition has already been filed by the revision petitioner in O.S.No:1512 of 1989 before the I-Additional District Munsif, Coimbatore, in which a preliminary decree was passed and thereafter a final decree application was filed in I.A.No.1900 of 1991 and the same was allowed on 33. 1994. Yet another suit was filed pertaining to the very same property by the plaintiff in O.S.No:530 of 1994 seeking to set aside the judgment and decree in O.S.No:1512 of 1989. The said suit though originally allowed, was later set aside by the appellate court in A.S.No;270 of 1999. Thereafter the revision petitioner is in possession and enjoyment of the property. It is well settled proposition of law that when once a preliminary decree has been passed, pertaining to the same cause of action or the subject matter involved, another suit shall not lie and should not be entertained by the court. The plaintiff in her third attempt wants to reopen the issues and rights of the parties pertaining to the suit properties which was already decided in O.S.No.1512 of 1989. The plaintiff in her third attempt wants to reopen the issues and rights of the parties pertaining to the suit properties which was already decided in O.S.No.1512 of 1989. Therefore, the suit is barred under Section 11 CPC as the same is hit by the rule of res judicata. 6. In the above facts and circumstances of the case, this revision is allowed setting aside the fair and decreetal order dated 2. 2006, made in I.A.No.628 of 2005 respectively in O.S.No: 774 of 2001 on the file of the learned II Additional Subordinate Judge, Coimbatore. Consequently, connected CMP is closed. No costs.