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2008 DIGILAW 4634 (MAD)

N. B. Raju & Others v. N. M. Halan

2008-12-12

V.PERIYA KARUPPIAH

body2008
Judgment :- 1. This revision is directed against the dismissal of the appeal in C.M.A. No: 2 of 2005 preferred by the petitioners against the fair and decreetal orders passed in I.A. No: 266 of 2003 in O.S. No: 36 of 1998 by the lower Court in allowing the application, for the suit is barred by resjudicata. The brief facts of the parties before the lower Court are as follows : "(i) The petitioner is the defendant in the suit. The present suit purely comes under resjudicata since the earlier suit in O.S. No: 35 of 1967 was decreed and E.P. was filed in E.P. No: 58 of 1998 before the District Munsif, Kotagiri, and possession was delivered to the defendant. The plaintiffs and their father are parties to the previous suit. The present plaintiff has no right to file the suit. The petitioner will be put to irreparable loss, if the Court does not allow this petition. Hence, issue No: 2 has to be decided as preliminary issue. (ii) The 6th respondent filed a counter affidavit which has been adopted by the other respondents. The petition is not maintainable. Written statement has been filed on 01.06.1998 and this petition is filed with ulterior motive. The plaint in O.S. No: 35 of 1967 on the file of the Subordinate Court, Ooty, never speaks any allegations against the plaintiffs or their predecessors. The preliminary decree in O.S. No: 35 of 1967 never directed these respondents/ plaintiffs to hand over any property in favour of this defendant who is 37th defendant and the rights of the plaintiffs in that suit under Ex.A.6 and B.6 in that suit has to be worked out on proving the rights of the vendors under these documents. If there is any difficulty to allotment of extents they are entitled to work out the same at the time of actual partition. Many of the defendants including the present plaintiffs and their predecessor in title have been made as parties to the previous suit only as formal parties. Hence there was no necessity to contest the previous suit. The judgment did not specify that these plaintiffs should hand over any property in favour of the defendant. Many of the defendants including the present plaintiffs and their predecessor in title have been made as parties to the previous suit only as formal parties. Hence there was no necessity to contest the previous suit. The judgment did not specify that these plaintiffs should hand over any property in favour of the defendant. The main aspect is the plaintiff and the 37th defendant in that suit has to work out their extents only at the time of final decree and they never disturbed the possession of the plaintiffs. The defendant No: 37 and the plaintiff in that suit colluded with each other and without making the present plaintiffs and their predecessors as parties to the final decree created false records against the preliminary decree. Moreover the defendant colluded with the plaintiff in O.S. No: 35 of 1967 without making the present plaintiffs or their predecessors as parties, created false records as if the plaintiff in O.S. No: 35 of 1967 handed over his property to the defendant. The preliminary decree final decree and E.P. will not bind the suit property as the same is a patta land enjoyed by the plaintiffs and their predecessors. The issues involved in the previous suit and the issues involved in this suit are certainly different issues and the rights of this plaintiffs was not decided as an issue in the previous suit. Further the Resjudicata is a mixed question of law and fact and the same cannot be raised as a preliminary issue. Hence, the petition may be dismissed. " 2. The trial Court had gone through the documentary evidence and considered the arguments advanced on either side and had come to the conclusion that the suit is barred by resjudicata. Aggrieved by the said order, the respondents / plaintiffs had preferred appeal before the appellate Court and the appellate Court had, after hearing the arguments on both sides, come to the conclusion of confirming the order passed by the trial Court. Aggrieved by the said order passed by both the Courts below, the plaintiffs, who were the respondents, before the trial Court had preferred this revision petition. 3. Heard Mr.T.S.Sivagnanam, the learned counsel for the revision petitioners. No appearance for the respondent before this court. 4. Aggrieved by the said order passed by both the Courts below, the plaintiffs, who were the respondents, before the trial Court had preferred this revision petition. 3. Heard Mr.T.S.Sivagnanam, the learned counsel for the revision petitioners. No appearance for the respondent before this court. 4. The learned counsel for the revision petitioners would submit in his argument that the suit has been filed by the revision petitioners as plaintiffs for bare injunction against the defendant in respect of suit properties and the defendant had raised various pleas including one of resjudicata and had filed an application in I.A. No: 266 of 2003 in the said suit for trying the issue of resjudicata as preliminary issue. But the lower Court had gone to the extent of passing an order permitting the plea of resjudicata as preliminary issue and had given finding for the issue in the application itself which is contrary to law. He would further submit in his argument that the lower Court had confused the concept of estoppel with resjudicata and had come to the conclusion that the previous suit in which the father of the plaintiffs were parties as defendants and remained ex-parte in that suit. Whereas the issue to be decided in this suit is only as to whether the plaintiffs were in possession and enjoyment of the suit property on the date of the suit. He would also submit that the reason stated by the lower Court that the earlier suit was for partition and separate possession and in pursuance of the preliminary decree passed in that suit final decree was also passed and E.P. proceedings were taken and therefore, possession was given to defendants father and therefore, the present suit was barred by resjudicata cannot be correct. He would further submit that the ingredients of Section 11 C.P.C. are not applicable to the facts and circumstance of both the cases and therefore, the concept of resjudicata cannot be applied as decided by the lower Courts. He would also draw the attention of this Court to the ingredients of Section 11 C.P.C. and the requisites for applying the said doctrine to the subsequent cases. He would therefore request the Court that the order passed by the trial Court and the appellate Court should have been interfered in the revision and the petition may be ordered accordingly. 5. He would therefore request the Court that the order passed by the trial Court and the appellate Court should have been interfered in the revision and the petition may be ordered accordingly. 5. I have given anxious consideration to the arguments advanced by the learned counsel for the revision petitioner. I have also gone through the contentions submitted by the respondent before the trial Court as well as the Appellate Court and also the substance of the orders passed by the Courts below. The present suit has been laid by the revision petitioners in O.S. No: 36 of 1998 seeking a permanent injunction against the defendant. The plea of the revision petitioners before the lower Court was that the plaintiffs were in possession and enjoyment of the suit properties and the defendant was seeking to interfere with the possession and enjoyment of the suit property under the guise of final decree passed in O.S. No: 35 of 1967 and, therefore, the defendant / respondent has to be injuncted. The pleas of the defendant / respondent in the written statement would be that the plaintiff was estopped from making the suit claim since his father was a party to the earlier suit in O.S. No: 35 of 1967 on the file of the Sub Court, Ootacamund. It is also pleaded that the suit was barred by resjudicata in view of the judgment passed in O.S. No: 35 of 1967. Therefore, we have to see whether the previous suit in between the father of the plaintiffs and the defendant in O.S. No: 35 of 1967 and the decrees passed thereon and the E.P. Proceedings taken on the basis of the said decrees are constituting resjudicata as found by the lower Court. No doubt the issue regarding resjudicata was framed by the lower Court. The request of the defendant was only to the effect that the issue of resjudicata should have been taken as preliminary issue and be disposed of. The relief sought for in O.S. No: 35 of 1967 was admittedly for partition of the properties and for separate possession. There is no dispute that the property mentioned in O.S. No: 36 of 1998, the later suit filed by the revision petitioners for bare injunction is forming part of the schedule of properties in O.S. No: 35 of 1967, the former suit. There is no dispute that the property mentioned in O.S. No: 36 of 1998, the later suit filed by the revision petitioners for bare injunction is forming part of the schedule of properties in O.S. No: 35 of 1967, the former suit. The father of the plaintiffs ( revision petitioners ) was admittedly one of the parties in the previous suit i.e. O.S. No: 35 of 1967. For the purpose of understanding as to whether the resjudicata is applicable to the present case, it has become necessary to extract Section 11 C.P.C. "Section 11 of C.P.C. - Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been sub-sequently raised, and has been heard and finally decided by such Court. " .6. On a careful reading of the aforesaid section, we have to find as to whether the matter to be decided in the subsequent suit namely O.S. No: 36 of 1998 is directly and substantially in issue, with the decisions in the former suit in which the issues were directly and substantially same in between same parties or between parties under whom they or any of them claim. So far as this case is concerned there is no dispute regarding the parties. Similarly, the properties are also identical. When the matter is concerned, the prayer in the earlier suit in O.S. No: 35 of 1967, was for partition and separate possession of the properties and to allot the share of the plaintiffs. The relief sought for in this case in O.S. No: 36 of 1998 is to the effect that the plaintiffs are in possession and enjoyment of the suit properties and therefore, permanent injunction has to be ordered against the defendant. The finding to be made in the suit is as to whether the plaintiffs are in possession and enjoyment of the suit properties on the date of the suit. The finding to be made in the suit is as to whether the plaintiffs are in possession and enjoyment of the suit properties on the date of the suit. The execution proceedings said to have been taken in O.S. No: 35 of 1967 would show that possession of the properties have been given to the defendant and other persons in the partition suit according to the divisions and allotments made in the final decree proceedings. Subsequent to the said delivery of possession the present plaintiffs are claiming to be in possession of the said properties. The point to be considered by the trial Court in this suit was as to whether the plaintiffs were in possession and enjoyment of the said properties on the date of the suit. But the issues decided in the earlier suit were to the effect whether the plaintiffs and other parties are entitled to partition and separate possession of the suit properties. Both causes of action are different and separate. The period of cause of action stated in the later suit is also recent. Therefore, the issues in both cases cannot be equated and be found as directly and substantially the same. The arguments advanced by the learned counsel for the revision petitioners have much force in this aspect. Therefore, the doctrine of resjudicata cannot be applied as the ingredients of Section 11 C.P.C. are not attracted to the present case. 7. Apart from that the application was filed by the defendant seeking permission to decide the issue of resjudicata as the preliminary issue. When the issues were framed by the trial Court and one issue alone was sought to be tried, it ought to have permitted the preliminary issue to be separately tried and thereafter, to give its finding in the suit. But the trial Court had proceeded to let in evidence and marked documents in the interlocutory application itself and had come to the conclusion of deciding the suit in the interlocutory application itself. The procedure adopted by the trial Court was not proper. The said defect was also not set right by the appellate Court. Both the Courts below have erred applying the ingredients of Section 11 C.P.C. and the trial Court was wrong in adopting the procedure to be followed when the issue was to be tried as a preliminary issue. .8. The procedure adopted by the trial Court was not proper. The said defect was also not set right by the appellate Court. Both the Courts below have erred applying the ingredients of Section 11 C.P.C. and the trial Court was wrong in adopting the procedure to be followed when the issue was to be tried as a preliminary issue. .8. Therefore, it has become necessary for this Court to interfere with the orders passed by the Courts below and set aside both the orders and to direct the lower Court to revive the suit and to proceed with the other issues except the issue on resjudicata after giving opportunity to both the parties to let in evidence in respect of those remaining issues and to decide the case on the basis of the evidence. 9. Accordingly, the revision petition is allowed and the orders passed by the Courts below are set aside. The trial Court is directed to proceed with the trial in respect of the other remaining issues. Connected miscellaneous petition is closed. No costs.