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2008 DIGILAW 3941 (MAD)

K. Manickam v. K. Raja

2008-10-30

S.RAJESWARAN

body2008
Judgment :- The above Civil Revision Petitions are filed against the Orders dated 25.06.2008 passed in I.A.No.6076 of 2008 in O.S.No.1951 of 1997 and I.A.No.6077 of 2008 in O.S.No.5440 of 2000 on the file of the IV Assistant Judge, City Civil Court, Chennai. 2. The second plaintiff in O.S.No.1951 of 1997, who is also the second plaintiff in O.S.No.5440 of 2000, is the revision petitioner in both the petitions. 3. O.S.No.1951 of 1997 was filed by the father of the second plaintiff against the respondent herein, who is also one of the sons of the father of the revision petitioner herein, for a mandatory injunction directing the defendant/ respondent herein, his wife and children, to hand over the possession of schedule B property occupied by the defendant with his wife and children under leave and licence granted by the plaintiff. 4. The case of the plaintiff in O.S.No.1951 of 1997 is that, the defendant/respondent herein is his own son and he is residing with his wife and children in a portion of the schedule A property and portion of the property occupied by the respondent herein is B schedule property. 5. According to the plaintiff/father, his two married sons, i.e., the respondent herein and one K.Subramani are not helping him and therefore, he executed a new Will on 29.08.1996, bequeathing the entire A schedule property to his unmarried son, who is the revision petitioner herein. This made the other two sons angry and they threatened him with physical violence and compelled him to cancel the Will executed on 29.08.1996. This has caused deep pain and agony to the plaintiff/father, compelling him to file the suit for the aforesaid relief. 6. This suit was defended by the respondent herein by filing a written statement. 7. Thereafter, the plaintiff/father filed another suit in O.S.No.5440 of 2000 against the respondent herein for a direction, directing him to pay a sum of Rs.55,800/- with interest at the rate of 24% p.a. In this suit, the plaintiff/father stated that, he settled his A schedule property in favour of the revision petitioner herein by a registered Settlement deed dated 19. 2001. Therefore, the revision petitioner herein became the absolute owner of A schedule property and he has also given the right to the revision petitioner under the Settlement Deed to conduct the suit. 2001. Therefore, the revision petitioner herein became the absolute owner of A schedule property and he has also given the right to the revision petitioner under the Settlement Deed to conduct the suit. It is further stated by the father that, the B schedule property was used by the respondent herein from 07. 1997 to 31.01.2000 and a sum of Rs.37,200/- is to be paid by the respondent herein for the said period towards use and occupation. After calculating the Electricity charges, water charges and maintenance charges, the plaintiff/father arrived at a sum of Rs.55,800/- being the total amount which is to be paid by the respondent herein. This suit is also being contested by the respondent herein by filing a written statement. 8. While so, the revision petitioner filed two impleading petitions, i.e., I.A.No.19298 of 2003 in O.S.No.1951 of 1997 and I.A.No.19299 of 2003 in O.S.No.5440 of 2000 to implead him as the second plaintiff in both the suits. Both the applications were dismissed by the trial court, against which, the revision petitioner filed C.M.A.No.31 of 2004 and C.M.A.No.32 of 2004. The lower Appellate Court allowed both the appeals and granted leave to the revision petitioner to go on record as the second plaintiff in both the suits. On the basis of the orders passed by the lower Appellate Court, the revision petitioner was impleaded as the second plaintiff in both O.S.No.1951 of 1997 and O.S.No.5440 of 2000. 9. Pending both the suits, the first plaintiff/father died on 27.02.2008 and the revision petitioner/second plaintiff filed two memos before the trial court, one in O.S.No.1951 of 1997 to record that he is the legal representative of the first plaintiff on the basis of the Settlement deed dated 19.09.2001 and he is entitled to continue the suit. A similar memo was filed in O.S.No.5440 of 2000 also. The trial court, on 26.03.2008, recorded both the memos and permitted the revision petitioner to file consequential amendment petition. On the basis of the order dated 26.03.2008, the revision petitioner filed I.A.No.6076 of 2008 in O.S.NO.1951 of 1997 to amend the cause title of the plaint to show that the first plaintiff is deceased and the second plaintiff is recognised as the legal representative of the deceased first plaintiff. Similarly, I.A.No.6077 of 2008 was filed in O.S.No.5440 of 2000. On the basis of the order dated 26.03.2008, the revision petitioner filed I.A.No.6076 of 2008 in O.S.NO.1951 of 1997 to amend the cause title of the plaint to show that the first plaintiff is deceased and the second plaintiff is recognised as the legal representative of the deceased first plaintiff. Similarly, I.A.No.6077 of 2008 was filed in O.S.No.5440 of 2000. Both the applications were resisted by the respondent therein by filing a counter affidavit, wherein, it is contended that the first plaintiff/father has left behind him his wife, four daughters and three sons, including the revision petitioner and the respondent herein. Therefore, the revision petitioner alone could not be recognised as the sole legal representative of the deceased father. Therefore, the respondent herein sought for a direction directing the revision petitioner/second plaintiff to bring on record all the legal representatives of the deceased first plaintiff in both the suits. .10. The trial court by order dated 26. 2008, dismissed I.A.No.6076 of 2008 in O.S.No.1951 of 1997 by holding that the revision petitioner/second plaintiff should take steps to bring all the legal representatives of the deceased first plaintiff. A similar order was passed by the trial court in I.A.No.6077 of 2008 in O.S.No.5440 of 2000 on the same day. Aggrieved by the orders of the trial court, the second plaintiff in the suits preferred the above revision petitions under Article 227 of the Constitution of India. 11. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent in both the petitions. I have also gone through the documents and judgment filed in support of their submissions. 12. The learned counsel for the revision petitioner contended that having not challenged the orders passed by the lower Appellate Court, in C.M.A.No.31 and 32 of 2004 and having not challenged the orders passed by the trial court in the two memos, now, it is not open to the respondent herein to oppose I.A.No.6076 and 6077 of 2008 filed by the revision petitioner for consequential amendments. Therefore, the principle of res judicata will operate against the respondent herein, but the trial court has overlooked this aspect and wrongly directed the revision petitioner to include all the legal representatives of the deceased first plaintiff. Therefore, the principle of res judicata will operate against the respondent herein, but the trial court has overlooked this aspect and wrongly directed the revision petitioner to include all the legal representatives of the deceased first plaintiff. In support of his submission, the learned counsel for the petitioner relied on a decision of the Honble Supreme Court reported in 2008(4) SCC 615 (Barkat Ali and another Vs Badrinarain (dead) by Lrs.). 13. Per contra, the learned counsel for the respondent vehemently contended that when there are eight legal representatives, it is not open to the revision petitioner to claim as if he was the only legal heir of the deceased first plaintiff. He further submitted that the trial court passed orders in the two memos filed by the revision petitioner without notice to the respondent and therefore, the respondent is competent to challenge the amendment petitions filed by the revision petitioner in I.A.No.6076 and 6077 of 2008. Hence, according to the learned counsel for the respondent, the trial court has correctly appreciated the facts and directed the revision petitioner to include all the legal representatives of the deceased first plaintiff. 14. I am unable to accept the submissions made by the learned counsel for the respondent herein. .15. It is not in dispute that both the suits were filed by the first plaintiff, who is the father of the second plaintiff/revision petitioner herein as well as the respondent herein. It is an admitted fact that pending suits, the father executed a Settlement Deed dated 18. 2001 in favour of the revision petitioner herein and on that basis, the revision petitioner filed impleading petitions in both the suits, which were dismissed by the trial court. When the matter was taken up to the lower Appellate Court, the lower Appellate court allowed both the appeals and permitted the revision petitioner to implead himself as the second plaintiff in both the suits. Admittedly, this order of the lower Appellate Court dated 7. 2004, made in C.M.A.No.31 and 32 of 2004 reached its finality as it was not challenged at all. Further, this order was passed by the lower Appellate Court when the father himself was very much alive and was proceeding with both the suits. Further, when the father passed away, on 27.02.2008, the revision petitioner filed memos to record him as the legal representative of the first plaintiff to continue the suit. Further, this order was passed by the lower Appellate Court when the father himself was very much alive and was proceeding with both the suits. Further, when the father passed away, on 27.02.2008, the revision petitioner filed memos to record him as the legal representative of the first plaintiff to continue the suit. These two memos were also recorded and permission was granted by the trial court to the revision petitioner to file consequential amendment petitions. This order dated 26.03.2008 passed by the trial court, recording the memos and permitting the revision petitioner to file consequential amendment petition was also not challenged by the respondent herein. Though it is contended that the orders were passed in the memos without notice, still the respondent herein should have challenged the same once he came to know about the orders passed by the trial court, in the memos on 26.03.2008. Therefore, these two orders dated 26.03.2008 have also reached finality. Subsequently, I.A.No.6076 of 2008 and I.A.No.6077 of 2008 were filed by the revision petitioner in both the suits for consequential amendment and only in these two applications, a counter affidavit has been filed by the respondent herein contending that the revision petitioner alone cannot be the legal representative of the deceased father when there are seven others who are the wife, daughters and sons of the deceased first plaintiff. 116. Thus, I am of the considered view that having not challenged the orders passed by the lower Appellate Court in C.M.A.No.31 and 32 of 2004 and the orders passed by the trial court in the memos on 26.03.2008, it is not open to the respondent herein to challenge I.A.No.6076 and 6077 of 2008 as these two applications are only consequential applications. .17. In 2008(4) SCC 615 (cited supra), while dealing with the provisions of Order 21 Rule 22 to 24 of C.P.C., the Honble Supreme Court held that the principles of res judicata not only apply in respect of separate proceedings, but, the general principles also apply at the subsequent stage of the same proceedings also and the same court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage. 118. 118. Admittedly, in the present case, the trial court recorded the two memos filed by the revision petitioner to record him as the legal representative of the deceased first plaintiff and permitted the revision petitioner to file consequential amendment petitions. Therefore, the trial court has committed an illegality in dismissing the consequential amendment petitions which were filed as per the order of the court dated 26.03.2008 and directing the revision petitioner to bring all the legal representatives on record. 119. Hence, I am inclined to interfere with the orders passed by the trial court and accordingly the order of the trial court in I.A.No.6076 of 2008 in O.S.No.1951 of 1997 and I.A.No.6077 of 2008 in O.S.No.5440 of 2000 are set aside and consequently, both the I.A.No.6076 of 2008 and I.A.No.6077 of 2008 are allowed. 120. In the result, both the Civil Revision petitions are allowed. No cost. The connected miscellaneous petitions are also closed.