Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4590 (MAD)

Smt. P. Leelarathinam v. P. E. Srinivasan

2011-11-21

K.VENKATARAMAN

body2011
Judgment :- 1. The defendants 7 and 9 in O.S.No.12823 of 2010 before the learned V Additional Judge, City Civil Court, Chennai are before this Court in this revision. The plaintiffs 1 to 6 in the said suit are the respondents 1 to 6 herein. The defendants 1 to 6, 8 and 10 to 13 in the said suit are the respondents 7 to 17 in this revision. 2. The respondents 1 to 6 have laid the said suit for permanent injunction restraining the defendants 7 to 13 therein from alienating or encumbering the suit property in any manner. In the said suit, the petitioners being the defendants 7 and 9 have filed an application under Order 7 Rule 11 CPC to reject the plaint. The said application made in I.A.No.3409 of 2011 was dismissed by the above referred Court and the present Civil revision is directed against the said order. 3. The learned Senior Counsel appearing for the petitioners, ably assisted by the counsel on record contended that (a) The present suit is barred under Order 2 Rule 2 CPC (b) It is barred by limitation (c) There is no cause of action and (d) It is a clear abuse of process of law. 4. On the other hand, it is contended on behalf of the respondents that (a) The suit is not barred under Order 2 Rule 2 CPC (b) It is not barred by limitation (c) Even if it is contended that it is barred by law or limitation, the same can be tested only at the time of the trial and the plaintiffs cannot be thrown out at the threshold. (d) The earlier suit filed by the plaintiffs in C.S.No.1018 of 2007 was withdrawn with liberty to file a fresh suit and hence, the present suit is not barred by law. 5. I have carefully considered the submissions made by the learned Senior Counsel appearing for the petitioners and the learned counsel appearing for the respondents 1 to 6. 6. The short background of the matter is set out hereunder: (a) One Vijayaragavalu Naidu was owning several properties. He had a wife by name Chellammal and she died issueless. One Ramathilagamma claimed that she is the second wife of the said Vijayaragavalu Naidu. 6. The short background of the matter is set out hereunder: (a) One Vijayaragavalu Naidu was owning several properties. He had a wife by name Chellammal and she died issueless. One Ramathilagamma claimed that she is the second wife of the said Vijayaragavalu Naidu. The sister son of Vijayaragavalu Naidu, one Audiseshu Naidu laid the suit in C.S.No.558 of 1948 against the said Ramathilagamma and the same was decreed. The further suit that has been filed by Ramathilagamma in C.S.No.320 of 1948 alleging that she is the second wife of Vijayaragavalu Naidu and that he has executed a will in her favour was held against her and her suit was dismissed. (b) The said Ramathilagamma filed two appeals in O.S.A.No.11 and 12 of 1950. Pending the appeals, Ramathilagamma died and her daughter Krishnammal filed an application to implead herself as party. Later the matter was compromised between Audiseshu Naidu and Krishnammal. In the said compromise memo, not only Krishnammal, but also her sons, who are the plaintiffs 1 and 6 and also her deceased son P.E.Rajendran, father of the plaintiffs 2 to 5 have also signed. (c) Thereafter, the suit in O.S.No.1018 of 2007 was filed by the respondents 1, 3 to 6 and the widow of one Rajendran. The said suit was filed for permanent injunction restraining the defendants 7 to 13 therein from alienating the suit property. In the said suit, an endorsement was made by the learned counsel for the plaintiffs in the following manner: "Suit may be dismissed as withdrawn with liberty to file a fresh suit." (d) There upon by order dated 02.07.2008, this Court has passed the following order: "In view of the endorsement made by the counsel for the plaintiffs, the Civil Suit is dismissed as withdrawn with liberty to file a fresh suit, if the plaintiffs have rights to do so. Connected Applications are closed. No costs." (e) Alleging that liberty has been given to the respondents 1 to 6 herein, the present suit in O.S.No.12823 of 2010 was filed. 7. As rightly pointed out by the learned Senior Counsel appearing for the petitioners, the pleadings in the present suit are verbatim of the pleadings raised in the earlier suit in C.S.No.1018 of 2007. No costs." (e) Alleging that liberty has been given to the respondents 1 to 6 herein, the present suit in O.S.No.12823 of 2010 was filed. 7. As rightly pointed out by the learned Senior Counsel appearing for the petitioners, the pleadings in the present suit are verbatim of the pleadings raised in the earlier suit in C.S.No.1018 of 2007. Even the cause of action and the relief that has been sought for by the respondents 1 to 6 herein are verbatim the same as set out in the earlier suit. 8. Now, coming to the contention raised by either of the parties, let me first deal with the issue that has been raised, namely, whether this Court has granted leave to the respondents 1 to 6 to lay a fresh suit. 9. As pointed out earlier, the counsel appearing for the respondents 1 to 6 herein has made an endorsement to dismiss the suit as withdrawn with a liberty to file a fresh suit. No reason whatsoever has been stated by the counsel, as to why the said suit is sought to be withdrawn. Under Order 23 Rule 1 CPC, a suit could be withdrawn seeking liberty to file a fresh suit, if there are some formal defects and if the Court is satisfied that sufficient grounds exist for allowing the plaintiff to institute a fresh suit. In the case on hand, the respondents 1 to 6 have not sought permission to withdraw the suit with liberty to file a fresh suit giving any reasons thereon. That apart, the respondents 1 to 6 have not filed any application under Order 23 Rule 1 CPC. When no reason has been stated by the respondents 1 to 6 herein to withdraw the suit seeking liberty to file a fresh suit, in my considered view, the respondents 1 to 6 cannot be permitted to lay a suit later for the very same relief, giving the same particulars as was set out in the earlier suit. 10. That apart, though the respondents 1 to 6 have sought permission to withdraw the suit, with a liberty to file a fresh suit, this Court was cautious enough in saying that if the plaintiffs have got any right to do so, they can do so. 10. That apart, though the respondents 1 to 6 have sought permission to withdraw the suit, with a liberty to file a fresh suit, this Court was cautious enough in saying that if the plaintiffs have got any right to do so, they can do so. The order passed thereunder is again usefully extracted here under: "In view of the endorsement made by the counsel for the plaintiffs, the Civil Suit is dismissed as withdrawn with liberty to file a fresh suit, if the plaintiffs have rights to do so. Connected Applications are closed. No costs." 11. The said order would disclose that this Court has not given any liberty to the respondents 1 to 6 to file a fresh suit on the same cause of action. Thus, in my considered view the respondents 1 to 6 cannot lay the present suit, as though this Court in the earlier suit has lend its arm to file a subsequent suit. This point is held against the respondents 1 to 6. 12. The next issue that has to be considered is whether the respondents 1 to 6 can maintain the present suit, in view of the compromise decree that came to be passed in O.S.A.No.11 and 12 of 1950. The said suit, as stated already was laid by Ramathilagamma alleging that she is the second wife of Vijayaragavalu Naidu and that he has executed a will in her favour. The said suit in C.S.No.320 of 1948 was jointly tried along with the suit filed by one Audiseshu Naidu, who is the sister son of Vijayaragavalu Naidu. The said suit was made by him in C.S.No.558 of 1948. The suit filed by Audiseshu Naidu was decreed and the suit filed by Ramathilagamma was dismissed. Later, two appeals were filed by Ramathilagamma in O.S.A.No.11 and 12 of 1950. Pending appeals Ramathilagamma died and Krishnammal, the daughter of Ramathilagamma, alone filed an application to implead herself as legal representative and the same was allowed. The said appeals were compromised between the parties. The signatories to the compromise decree was not only Krishnammal but also P.E.Srinivasan and P.E.Krishnamurthy, the first and sixth plaintiff and also the widow of one Rajendran, the second plaintiff in the suit. Thus, Krishnammal, Srinivasan, Rajendran and others who were the parties to the compromise decree cannot question the compromise at a later stage. The signatories to the compromise decree was not only Krishnammal but also P.E.Srinivasan and P.E.Krishnamurthy, the first and sixth plaintiff and also the widow of one Rajendran, the second plaintiff in the suit. Thus, Krishnammal, Srinivasan, Rajendran and others who were the parties to the compromise decree cannot question the compromise at a later stage. That apart, as already pointed out, the suit has not been filed by the respondents 1 to 6 to set aside the compromise decree alleging that it is null and void and not binding on them. 13. In such circumstances, I am of the considered view that the persons who were parties to the compromise decree can no longer maintain the suit for bare injunction. That apart, the plaintiffs 3, 4 and 5, namely the respondents 3, 4 and 5 herein who have stepped into the shoes of Krishnammal and other plaintiffs referred to above, can no longer question the compromise decree and in fact as stated already the present suit is only for injunction and they do not question about the compromise decree entered into between the parties referred to earlier. 14. In view of the above stated position, I am of the considered view that the present suit is not only barred by Res Judicata but also a clear abuse of process of law. 15. No doubt, a suit cannot be thrown out at the threshold and the parties have to be driven to contest the suit on merits after full fledged trial. That does not mean, the suits that has been filed of this nature has to go on to see the final day. That apart, the matter will not end on the final day of the judgment and decree made in the suit. The matter could be prosecuted endlessly upto Supreme Court. If it is established by the petitioners that the suit filed by the respondents 1 to 6 is a clear abuse of process of law, for the reasons set out earlier, I am of the considered view that the suit that has been filed by the respondents 1 to 6 has to be thrown out even at the inception. The facts set out earlier would disclose that the respondents 1 to 6 are prosecuting the matter endlessly without allowing the other side to see the end of the day. 16. The facts set out earlier would disclose that the respondents 1 to 6 are prosecuting the matter endlessly without allowing the other side to see the end of the day. 16. The learned counsel appearing for the respondents 1 to 6 drawn my attention to the judgment reported in (2008) 12 Supreme Court Cases 661, Kamal and Others vs. K.T.Eshwarasa and Others. That is the case where the preliminary decree was passed in a suit and that the final decree was not passed. That apart the very same properties were not the subject matter in the earlier suit. In those circumstances, the Honble Apex Court has held that the power under Order 7 Rule 11 CPC is limited and that for the applicability of the said provision, it has to be shown that the suit is barred under any law and such question can be drawn from the averments made in the plaint and the same cannot be questioned at the stage of the proceedings under Order 7 Rule 11 CPC. Hence, the said decision will not come to the rescue of the respondents 1 to 6. Further more, even the Honble Apex Court in the said decision has held that for the applicability of the said provision it has to be seen whether the suit is barred by law or not, and the averments made in the plaint has to be seen in toto. In the present case on hand, I have clearly held that the present suit is a clear abuse of process of law and also barred by law. Hence, in my considered view the said judgment will not come to the rescue of the respondents 1 to 6. 17. The other judgment relied on by the learned counsel appearing for the respondents 1 to 6 is reported in 2008 (1) TNLJ 278 (Civil), Rangaraj and Others vs. P.R.Hemachandra Babu. It would be useful to extract paragraph 9 of the said judgment to show that the said judgment may not come to the rescue of the respondents 1 to 6. "9. Learned counsel appearing for the respondent-plaintiff has submitted that no documents have been marked, many of which have been relied on by the plaintiff. Even the judgment and decree passed in one or other suit has not been laid and nobody has proved such a decree. "9. Learned counsel appearing for the respondent-plaintiff has submitted that no documents have been marked, many of which have been relied on by the plaintiff. Even the judgment and decree passed in one or other suit has not been laid and nobody has proved such a decree. It was also contended that the earlier suit being limited only in respect of three rooms of the property in question, whereas the present suit relates to the entire suit property, and therefore, it cannot be held to be barred by "res-judicata". The facts of the present case is on entirely different footing. 18. Yet another decision relied on by the learned counsel appearing for the respondents 1 to 6 is reported in AIR 2007 KERALA 12, The Secretary, K.S.E.B and Another v. M.V.Abraham and Another. That is the case where the earlier suit filed by the parties were allowed to be withdrawn. The earlier suit was for injunction and the later suit was based on the later cause of action. The High Court of Kerala in the said decision has held that the subsequent suit is not hit under Order 7 Rule 11 CPC. Hence, the said judgment also may not come to the rescue of the respondents 1 to 6. 19. Summing up the entire discussions made above and the finding arrived at by me, I am of the considered view that the subsequent suit filed by the respondents is barred by law and is a clear abuse of process of law. No man could be allowed to re-agitate the matter again and again, which will cause undue hardship to the person who faces such music. The same cannot be permitted and it should be put an end at one point of time or the other. 20. Considering the above aspects, I am of the considered view that the order of the learned V Additional Judge, City Civil Court, Chennai, dated 11.04.2011, made in I.A.No.3409 of 2011 in O.S.No.12823 of 2010 is liable to be set aside and accordingly set aside. 21. In fine, the Civil Revision Petition stands allowed. However, no order as to costs.