Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 2685 (MAD)

T. Sivasubramaniam v. Muniammal

2011-06-07

G.RAJASURIA

body2011
Judgment : Per G. RAJASURIA, J. 1. This second appeal is focussed by the plaintiff, inveighing the judgement and decree dated 19.7.2005 passed by the learned Subordinate Judge, Dharapuram, Erode in A.S. No. 41 of 2004 confirming the judgment and decree dated 16.9.2004 passed by the learned District Munsif, Dharapuram, Erode in O.S. No. 6 of 2001. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Notices to Rl and R2 were served and despite printing of their names in the cause list, they have not appeared. R3, R4 and R5 were given up, as they are having no interest in the proceedings. 4. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: .a. The plaintiff/appellant herein filed the original suit seeking the reliefs of declaration of title over the suit property, permanent injunction and mandatory injunction to remove the superstructure put up by the defendants in a portion of the suit property. .b. Thedefendants 1 and 2 resisted the suit by filing written statement. .c. Whereupon the trial Court framed the preliminary issues as to the maintainability of the suit. During trial, on the side of the plaintiff, he examined himself as P.W.1 along with P.W.2 and-marked Exhibits A-1 to A-8. On the defendants‘ side, the first defendant examined himself as D.W.1 along with D.W.2 and marked Exhibits B-1 and B-2. Exhibit C-1 Court document was also marked. .d. Ultimately, the trial Court dismissed the suit holding that the suit was barred in view of the earlier proceedings. .e. Challenging and impugning the judgment and decree of the trial Court, appeal was filed by the unsuccessful plaintiff for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. .f. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the plaintiff has preferred this second appeal on various grounds and also suggesting the following substantial questions of law: 1. Whether the Courts below ought to have construed that the permission granted to the plaintiff was only to withdraw the suit O.S. No. 393 of 1995 and file a fresh suit on the same cause of action under Order 23 Rule 1(4) of CPC? 2. Whether the Courts below ought to have construed that the permission granted to the plaintiff was only to withdraw the suit O.S. No. 393 of 1995 and file a fresh suit on the same cause of action under Order 23 Rule 1(4) of CPC? 2. Whether the Courts below have erred in holding that O.S. No. 6 of 2001 on the file of the District Munsif, Dharapuram barred by res judicata? 3. Whether the Courts below have erred in not giving findings on other issues in the suit? (extracted as such) 5. At the time of admitting the second appeal, my learned predecessor framed the following substantial question of law Whether the Courts below have committed an error of law in holding that O.S. No. 6 of 2001 on the file of District Munsif Court, Dharapuram, is barred by res judicata? (extracted as such) 6. Heard the learned counsel for the appellant/plaintiff. 7. The learned counsel for the appeJIant/ piaintiff drawing the attention of this Court to the records available, would develop his argument to the effect that both the Courts below fell into error in construing the earlier order dated 17.11.2000 passed by the first appellate Court in I.A. No. 197 of 2000 in A.S. No. 34 of 1998 as though in the previous proceedings, the then appellate Court simply permitted the plaintiff herein to file a fresh appeal and not a fresh suit. Because of that error, both the Courts below dismissed the present suit of the plaintiff and the matter is required to be adjudged on merits. 8. The nitty gritty, the gist and kernel of the relevant facts, absolutely necessary for the disposal of this second appea would run thus: The earlier suit O.S. No. 393 of 1995 was filed by the same plaintiff herein for declaring his title over the suit property and for injunction. The said suit filed before the District Munsif Court, Dharapuram was dismissed after full trial as against which, appeal was filed in A.S. No. 34 of 1998 before the Sub Court, Dharapuram. During the pendency of the said appeal, I.A. No. 197 of 2000 was filed seeking permission to withdraw the suit so as to file a fresh suit under the same cause of action, in view of the fact that pendente lite, the defendants trespassed into a portion of the suit property and put up certain structures. During the pendency of the said appeal, I.A. No. 197 of 2000 was filed seeking permission to withdraw the suit so as to file a fresh suit under the same cause of action, in view of the fact that pendente lite, the defendants trespassed into a portion of the suit property and put up certain structures. As such, the plaintiff was constrained to file such an application. It appears, the then appellate Court passed the said order dated 17.11.2000 using the words as though the plaintiff/appellant was permitted to withdraw the appeal with liberty to file a fresh appeal on the same cause of action. The plaintiff correctly construed it as a permission given to him to file a fresh suit. Accordingly, the present suit O.S. No. 6 of 2001 was filed in the District Munsif Court Dharapuram as against which alone the present second appeal has arisen, seeking the reliefs of declaration of title, injunction and mandatory injunction to remove the superstructure in a portion of the suit property. The trial Court framed issues as well as additional issues. One of the additional issues was relating to res judicata. After entertaining evidence, so to say, the evidence of the plaintiff and the defendants, , the trial Court, ultimately held that the suit was barred by res judicata. As per the trial Court, the appellate Court in A.S. No. 34 of 1998, granted only the permission to file a fresh appeal on the same cause of action and not a fresh suit on the same cause of action. As against such trial Court‘s order, A.S. No. 41 of 2004 was filed before the Sub Court, Dharapuram, which Court simply confirmed the judgment and decree of the trial Court as though the present suit is barred by res judicata. Being aggrieved by and dissatisfied with the same, the present second appeal has been filed. 9. At the outset itself, I would like to point out that the scope of Order 23 of C.P.C should necessarily be taken into consideration. No where under Order 23 of C.P.C it is contemplated that an appeal could be withdrawn with liberty to file a fresh appeal. 9. At the outset itself, I would like to point out that the scope of Order 23 of C.P.C should necessarily be taken into consideration. No where under Order 23 of C.P.C it is contemplated that an appeal could be withdrawn with liberty to file a fresh appeal. I am at a loss to understand as to how even by phantasmagorical thoughts, the defendants could plead before the Court legally that the purport of the earlier order dated 17.11.2000 passed in A.S. No. 34 of 1998 should be construed as one for withdrawal of the appeal so as to file a fresh appeal on the same cause of action. Even, for argument sake, it is taken that earlier the appellate Court thought fit not to grant permission to the plaintiff to file any fresh suit on the same cause of action, then after dismissal of the I.A. the then appellate Court should have decided the appeal on merits and rendered its verdict. But, that was not done so. Hence, it is nothing but giving colour to the order dated 17.11.2000 passed by the then appellate Court in A.S. No. 34 of 1998, which both the Courts below presently should not have entertained. In fact, the defendants tried their level best to make a mountain out of a mole hill, so to say, a mere typographical error as a legal obstacle and take advantage of the same. 10. The learned counsel for the appellant herein would appropriately and appositely, correctly and convincingly, would argue that in the previous proceedings, before the appellate Court, the matter was not decided finally and since, pendente lite there was some change in the cause of action, the plaintiff thought fit to withdraw the earlier suit and file a comprehensive suit as contained in the present O.S. No. 6 of 2001 and accordingly, the present suit was filed. Instead of deciding the present suit on merits, the Courts below, simply dismissed it on the ground of res judicata. 11. I am of the considered view that Section 11 of the Code of Civil Procedure embodies the maxims (i) res judicata pro veritaie accipitur - A matter adjudged is taken for truth. Instead of deciding the present suit on merits, the Courts below, simply dismissed it on the ground of res judicata. 11. I am of the considered view that Section 11 of the Code of Civil Procedure embodies the maxims (i) res judicata pro veritaie accipitur - A matter adjudged is taken for truth. A matter decided or passed upon by a Court of competent jurisdiction is received as evidence of truth and (ii) Nemo debet bis vexari pro una et eadem causa – (No man ought to be twice troubled or harassed (if it appear to the Court that it is ) for one and the same cause. No man can be sued a second time for the same cause of action, if once judgment has been rendered. No man can be held to bail a second time at the suit of the same plaintiff for the same cause of action) and the Courts below misapplied Section 11 of the Code of Civil Procedure. 12. Even for argument sake, it is taken that the trial Court in O.S. No. 393 of 1995 dismissed the suit on merits, the appellate Court before which the genuineness of the decision was challenged did not render its decision on merits and it only gave permission to file fresh proceedings. In such a case, ushering in the concept res judicata is next to impossibility and due to misconception, without au fait with law and au courant with facts, simply both the Courts below misdirected themselves and decided the lis, warranting interference 13. Accordingly, the substantial question of law is decided to the effect that both the Courts below committed error in holding that O.S. No. 6 of 2001 on the file of District Munsif Court, Dharapuram is barred by res judicata. 14. Hence, I am of the view that the judgments and decrees of both the Courts below should be set aside and the matter shouid be remitted back to the lower Court for deciding the case on merits. Accordingly, it is ordered that within a period of four months from the date of receipt of a copy of this order, the matter shall be disposed of on merits after giving due opportunity to both sides to adduce further oral and documentary evidence. Both the parties shall appear before the trial Court, namely the District Munsif Court. Dharapuram on 4.7.2011. 15. Both the parties shall appear before the trial Court, namely the District Munsif Court. Dharapuram on 4.7.2011. 15. This second appeal is disposed of accordingly. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.