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2011 DIGILAW 2838 (MAD)

Pichandi v. Kannu

2011-06-17

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The unsuccessful plaintiff is the appellant. 2. The appellant/plaintiff filed a suit for declaration that the decree passed in O.S.No.1731 of 1979 wherein he was represented by Guardian, Hamsa Ammal is null and void and not binding on him and the auction of the property conducted in pursuance of the said decree O.S.No.731 of 1979 is also liable to be cancelled. 3. The case of the appellant/plaintiff was that the property belonged to one Kannan Chetty and it was his ancestral property and the plaintiff was his son and Kannan Chetty died in the year 1977 leaving the plaintiff as his only heir. The defendants 3 to 5 claimed to be the legal heirs of Kannan Chetty filed a suit in O.S.No.81 of 1978 on the file of the District Munsif Court, Thiruvannamalai, for partition and in that suit, it was contested by the defendants 3 to 5 that the 3rd defendant was the wife of Kannan Chetty and the defendants 4 and 5 were born to the 3rd defendant through Kannan Chetty and therefore, they are also the legal-heirs of Kannan Chetty along with the plaintiff and that suit O.S.No.81 of 1978 was decreed and the plaintiff filed appeal in A.S.No.13 of 1980 and that appeal was allowed in favour of the plaintiff and the defendants 3 to 5 filed second appeal in the High Court in S.A.No.1166 of 1981 and the same was pending at the time of filing of the suit. It was, therefore, stated that the defendants 3 to 5 were not the legal-heirs of Kannan Chetty and it was held that there was no marriage between Kannan Chetty and the 3rd defendant and the defendants 3 to 5 in collusion with the 1st defendant, made the 1st defendant to file the suit O.S.No.1731 of 1979 on the file of the District Munsif Court, Tiruvanamalai, against the plaintiff and the defendants 3 to 5 for recovery of money on the basis of the promissory note alleged to have been executed by Kannan Chetty and in the suit O.S.No.1731 of 1979, plaintiff was represented by the 3rd defendant and the suit was not contested and an ex-parte decree was passed and based on the ex-parte decree, the property was brought to sale in execution of the decree and the 2nd defendant purchased the property and as the plaintiff was not properly represented in O.S.No.1731 of 1979 and he was represented by the 3rd defendant, who was having adverse interest against the plaintiff as the plaintiff disputed the title of the 3rd defendant viz., the 2nd wife of Kannan Chetty and that was also upheld by the First Appellate Court in A.S.No.13 of 1980 holding that the 3rd defendant was not the wife of Kannan Chetty and therefore, the decree passed in O.S.No.1731 of 1979 against the plaintiff represented by the 3rd defendant is not binding on the plaintiff and therefore, the auction sale conducted in pursuant to the decree is also not binding on the plaintiff and the suit was filed within three years from the date of attaining majority and therefore, the plaintiff is entitled to decree as prayed for. 4. The defendants 1 and 2 contested the suit stating that the decree passed in O.S.No.1731 of 1979 is binding on the plaintiffs as they were represented by their step-mother and guardian viz., 3rd defendant and there was no collusion between the 1st defendant and the 3rd defendant and the 3rd defendant was not acting against the interest of the minor plaintiff and therefore, the sale is binding on the plaintiff. 5. 5. It was further contended that the plaintiff represented by his paternal uncle, filed a suit in O.S.No.591 of 1983 against the very same party viz., the defendants in the suit for the same relief and that suit was dismissed after contest on 16.11.1984 and without filing an appeal against the said decree, the present suit was filed for the same relief and therefore, the present suit is barred by res-judicata by reason of the judgment rendered in O.S.No.591 of 1983 and therefore, the suit is not maintainable. 6. The trial Court dismissed the suit holding that the plaintiff had already filed a suit in O.S.No.591 of 1983 represented by his paternal uncle and that suit was dismissed and for the same relief, a second suit was filed by the plaintiff after attaining majority and it is not maintainable and the decree passed in O.S.No.591 of 1983 operates as res-judicata and dismissed the suit. The Lower Appellate Court also confirmed the judgment and decree and against the same, this second appeal is filed. 7. The following substantial question of law was framed at the time of admission in the second appeal:- Whether the Lower Appellate Court was right in the view it took that the decision in O.S.No.591 of 1983 would operate as res-judicata? 8. It is submitted by the learned counsel appearing for the appellant, Mr.R.Subramanian that both the Courts below erred in holding that O.S.No.591 of 1983 operates as res-judicata and the present suit filed by the plaintiff/appellant is not maintainable without appreciating the provisions of Order 32 of Civil Procedure Code. 9. 8. It is submitted by the learned counsel appearing for the appellant, Mr.R.Subramanian that both the Courts below erred in holding that O.S.No.591 of 1983 operates as res-judicata and the present suit filed by the plaintiff/appellant is not maintainable without appreciating the provisions of Order 32 of Civil Procedure Code. 9. According to the learned counsel appearing for the appellant, Mr.R.Subramanian, admittedly O.S.No.81 of 1978 was filed by the defendants 1 to 3 against the appellant, represented by his paternal uncle, Chandran Chetty and in that suit O.S.No.81 of 1978, the defendants 3 to 5 claimed that they are also the legal-heirs of Kannan Chetty along with the plaintiff and claimed partition of the properties and that would prove that the 3rd defendant is having interest adverse to that of the plaintiff and in O.S.No.1731 of 1979 filed by the 1st defendant, the plaintiff was represented by the 3rd defendant and the plaintiff was the one of the defendants and as the 3rd defendant was already having adverse interest against the present plaintiff, she could not have properly represented the interest of the present plaintiff in O.S.No.1731 of 1979 and O.S.No.1731 of 1979 was decreed ex-parte and deliberately, the 3rd defendant did not contest the suit and that would also show collusion between the 3rd defendant and the 1 st defendant and the property was brought to sale in execution of the decree and as the present plaintiff was not properly represented by a guardian and the guardian viz., the 3rd defendant was having adverse interest against the plaintiff, the decree passed against the plaintiff in O.S.No.1731 of 1979 is binding on the plaintiff and therefore, the plaintiff is entitled to decree. 10. On the other hand, the learned counsel appearing for the respondents submitted that O.S.No.81 of 1978 was filed by the plaintiff, represented by his paternal uncle Chandran Chetty and though the plaintiff lost in the suit, the appeal filed by the plaintiff, represented by the paternal uncle Chandran Chetty, was allowed and the 2nd appeal was also prosecuted by the plaintiff represented by Chandran Chetty and the second appeal was also dismissed and that would prove that Chandran Chetty was not having any adverse interest against the plaintiff. 11. 11. It is further submitted that even assuming that in O.S.No.1731 of 1979, the plaintiff was represented by the 3rd defendant and she was having adverse interest against the plaintiff as she had filed a suit for partition against the interest of the plaintiff in O.S.No.81 of 1978, the plaintiff had already filed a suit, represented by his paternal uncle Chandran Chetty in O.S.No.591 of 1983 and in that suit, the same prayers now sought for were prayed for and the suit was dismissed after contest and against that suit, no appeal was filed and therefore, that decree passed in that suit operates as res-judicata and therefore, the present suit is not maintainable. 12. Heard both sides. 13. To appreciate the contention of both parties, we will have to see the provision of Order 32 of Civil Procedure Code. 14. As per Order 32 Rule 3A, no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had any interest in the subject-matter of the suit adverse to that of the minor,but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interest of the minor, that shall be a ground for setting aside the decree. Therefore, even though, the next friend or guardian was having adverse interest to that of the minor, that cannot be the reason for setting aside the said decree and in addition to that, the minor has to prove that prejudice has been caused to the interest of the minor by reason of the adverse interest. 15. In this case, as rightly contended by the learned counsel appearing for the respondents that in O.S.No.81 of 1978, the present plaintiff was represented by his paternal uncle, Chandran Chetty and the said suit was filed by the defendants 3 to 5 for partition and that suit was decreed and the first appeal was allowed and the suit filed by the defendants 3 to 5 was dismissed. Therefore, it can be concluded that the 3rd defendant having filed a suit against the plaintiff was having an interest adverse to that of the plaintiff. Therefore, it can be concluded that the 3rd defendant having filed a suit against the plaintiff was having an interest adverse to that of the plaintiff. But, that alone is not sufficient as per Order 32 Rule 3-A and in addition to that adverse interest, the minor has to prove that by reason of the adverse interest, prejudice has been caused against his interest. In the plaint or in evidence, nothing has been stated about the prejudice that was caused to the plaintiff by the act of the 3rd defendant, representing the plaintiff when he was a minor in O.S.No.1731 of 1979. It was only contended that such prejudice can be presumed by reason of the fact that the 3rd defendant did not contest the suit and remained ex-parte and therefore, prejudice can be presumed in favour of the plaintiff. 16. According to me, having regard to the fact that O.S.No.81 of 1978 was dismissed and the suit was filed by the 3rd defendant claiming partition in the property of the father of the plaintiff on the ground that she is the wife of the father of the plaintiff and that suit was dismissed in appeal and in that suit, the plaintiff was represented by his paternal uncle and the 3rd defendant did not prosecute the suit O.S.No.1731 of 1979 and allowed the suit to be decreed ex-parte and having regard to such circumstances, the argument of the learned counsel appearing for the appellant that the 3rd defendant was having an interest adverse to the plaintiff and by reason of the adverse interest, prejudice has been caused to the interest of the minor in the suit O.S.No.1731 of 1979 cannot be accepted. Nevertheless, the plaintiff filed the suit O.S.No.591 of 1983 represented by his paternal uncle, Chandran Chetty for the same relief as now prayed for in the suit and that suit was allowed to be dismissed after contest and thereafter, the present suit was filed by the plaintiff in his own capacity after attaining majority. Therefore, the question that arises for consideration is whether the earlier O.S.No.591 of 1983 will operate as res-judicata. 17. As per Order 32 Rule 12, a minor plaintiff or a minor not a party to a suit shall on attaining majority, elect whether he will proceed with the suit or application. Therefore, the question that arises for consideration is whether the earlier O.S.No.591 of 1983 will operate as res-judicata. 17. As per Order 32 Rule 12, a minor plaintiff or a minor not a party to a suit shall on attaining majority, elect whether he will proceed with the suit or application. Therefore, under Order 32 Rule 12, a minor after attaining majority shall elect whether to proceed with the suit or application. 18. In this case, when the plaintiff was a minor, he filed a suit O.S.No.591 of 1983 represented by his paternal uncle Chandran Chetty and in that suit, he prayed for declaration that the decree passed in O.S.No.1731 of 1979 is not binding on him and sale of the property in pursuance of the decree is null and void and that suit was dismissed on 16.11.1984. It is proved by the plaintiff that he was borne in the year 1966 and he attained majority in the year 1984 and at the time of the dismissal of the suit O.S.No.591 of 1983, he was a minor and became major later and thereafter, filed the present suit for the same relief. 19. It has to be remembered that O.S.No.81 of 1978 was contested by the present plaintiff, when he was a minor represented by his paternal uncle Chandran Chetty and ultimately, he won the case and the suit filed by the defendants 3 to 5 was dismissed and confirmed in the second appeal in S.A.No.1166 of 1981. The very same guardian Chandran Chetty, who is the paternal uncle of the plaintiff, filed a suit O.S.No.591 of 1983 praying for the same relief. Therefore, it cannot be contended that the said Chandran Chetty, who filed the suit, representing the minor next friend and guardian had any adverse interest to that of the plaintiff. Therefore, the suit was filed by a proper person representing the interest of the minor and the suit was dismissed on merit. 20. In the judgment reported in AIR 1957 Madras 395, in the case of Marudamuthu Khandar vs. AR.Arunachalam Chettiar and others, it was held as follows:- “The law is well settled that a minor is not bound by a decree in a suit against him if he is able to show that his guardian was guilty of gross negligence in the conduct thereof. It is obvious that in the absence of fraud or collusion, it may be considered to be not part of natural justice that the other side should be made to suffer by depriving it of the benefits of its decree, simply because the minor's guardian and lawyer, over whom it had no control, had been guilty of gross negligence in conducting the suit, appeal or execution proceedings. But, still, the principle has been applied to suits, and there is no valid reason why it should not be extended in suitable cases to execution proceedings and to appeals which ought to have been filed by the guardian in suits conducted by him. Thus the guardian's or his lawyer's negligence in not filing an appeal or execution proceedings can also be set up by the minor for setting them aside in suitable cases. The guardian is not bound to raise a false or untenable defence or persist in it having raised it. Thus where it was clear on facts that the guardian was a faithful guardian, who had fought the plaintiff's case unto death, and there was no fraud or collusion alleged as against him or the lawyer, who was admitted to be quite competent and that the guardian had placed all the facts within his knowledge before the lawyer. Held that neither the guardian nor his lawyer could be charged with negligence in the suit which was certainly beneficial to the minor, and also in not filing an appeal against it. 21. Further in the judgment reported in AIR 1971 Madras 273, in the case of Nabisha Begum vs. Arumuga Thewar and others, a Division Bench of this Court has held that a dismissal cannot nullify the preliminary decree already passed and a decree once passed by a competent court can be set aside only in appeal or other modes known to law. A suit which had already been decreed, cannot be dismissed thereby nullifying the decree. 22. In that case, the minor plaintiff filed a suit for partition and preliminary decree was passed and after attaining majority, he did not proceed with the suit and the suit was dismissed and in that circumstance, it was held that the preliminary decree does not become non est and a decree passed by a competent court can be set aside in appeal or other modes known to law. 23. 23. In this case, O.S.No.591 of 1983 was dismissed. Though, the plaintiff was minor at the time of filing of the suit, he was represented by his paternal uncle, Chandran Chetty. As stated supra, his paternal uncle was not having any interest adverse to that of the plaintiff. The dismissal of the suit O.S.No.591 of 1983 can be set aside only by way of filing an appeal or in the manner known to law. As per Order 32 Rule 3-A, a decree passed against a minor can be set aside only, when the minor was represented by a next friend or guardian, who is having interest adverse to that of the minor and by reason of the adverse interest, prejudice has been caused to the minor. 24. In this case, admittedly, no appeal was filed by the plaintiff, after attaining majority and no application was filed to set aside the decree passed in O.S.No.591 of 1983 by stating that Chandran Chetty, the paternal uncle, who represented the plaintiff, was having interest adverse to that of the plaintiff and that caused prejudice to him. 25. As stated supra, no such pleading was ever let in and having regard to the earlier conduct on the next-friend in properly contesting the suit O.S.No.81 of 1978 in favour of the plaintiff/appellant, it cannot be stated that the paternal uncle Chandran Chetty was having interest adverse to that of the plaintiff. Hence, the decree passed in O.S.No.591 of 1983 is binding on the plaintiff and in that suit, the plaintiff prayed for the very same relief that was prayed for in the present suit also and when the suit O.S.No.591 of 1983 was dismissed and without setting aside the same, in the present suit, the same prayer declaration is not maintainable and therefore, decree in O.S.No.591 of 1983 operates as res-judicata and the substantial question of law is answered against the appellant and the judgment and decree of the Fist Appellate Court is confirmed. 26. In the result, the second appeal fails and the accordingly, the same is dismissed. Consequently, connected CMP is closed. No costs.