Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3893 (MAD)

C. E. Sathyanarayana Reddi v. C. E. Sulochana

2012-09-14

P.JYOTHIMANI, R.SUBBIAH

body2012
Judgment :- P. JYOTHIMANI, J. The appellant, against whom the judgment was delivered by a Division Bench of this Court, in which one of us (RPSJ) is a party to the judgment dated 19.8.2009, has filed the present review. 2. The short facts are that the first respondent, who is the mother of the review applicant, has filed a suit in O.S.No.8620 of 1996 on the file of the Second Assistant Judge, City Civil Court, Madras praying for a mandatory injunction and to reconstruct the compound wall alleged to have been demolished by the applicant. In the said suit, it is not in dispute that various issues have been framed including the issue relating to the title and partition. Ultimately, the suit filed by the mother of the applicant, namely the first respondent, came to be decreed on 16.2.1999. It was against the said judgment and decree, the applicant filed an appeal in A.S. No.324 of 2000 and that came to be dismissed as settled out of Court on 11.12.2001, thereby the judgment and decree passed against the review applicant dated 16.2.1999 has become final. Later, the mother of the applicant, namely the first respondent filed another suit in C.S.No.719 of 2005 for recovery of possession, which suit is pending in this Court. 3. The applicant also filed C.S.No.129 of 2007 seeking a decree for partition of the property. In the said suit, the respondents herein filed an application for rejecting the suit under Order VII Rule 11 of the Civil Procedure Code on the ground that the issue has already been decided by the Civil Court in O.S.No.8620 of 1996 and that therefore, the same cannot be re-agitated by the applicant. On a reference to the judgment and decree passed in O.S.No.8620 of 1996, the learned Single Judge of this Court, by judgment dated 3.1.2008, rejected the suit by invoking powers under Order VII Rule 11 of the Civil Procedure Code holding that the suit is hit by the principles of res judicata. It was against the said judgment, the applicant filed O.S.A.No.355 of 2008 and the said appeal came to be dismissed on 19.8.2009, confirming the order of the learned Single Judge. It is against the said judgment, the present review has been filed by the appellant in the original side appeal. 4. It was against the said judgment, the applicant filed O.S.A.No.355 of 2008 and the said appeal came to be dismissed on 19.8.2009, confirming the order of the learned Single Judge. It is against the said judgment, the present review has been filed by the appellant in the original side appeal. 4. The main contention raised by the learned counsel for the applicant is that while it is true that in the earlier suit in O.S.No.8620 of 1996, which was only a suit for mandatory injunction, various issues were framed, in which the review applicant participated and obtained a decree against him, which has become final, nevertheless, the Trial Court had no such power to give a finding in matters, which are other than the issue involved in the suit and therefore, according to him, it should not be taken as a finding on merit. 5. In so far as it relates to title and partition is concerned, the learned counsel for the applicant would also rely upon the following decisions : (i) St.AleysiusAnglo Indian Higher Secondary School Vs. Association for Protection of Education { 1991 (1) LW 564 }; (ii) Ramji Rai and another Vs Jagdish Mallah (dead) through L.Rs and another ( AIR 2007 SC 900 ); and (iii) Ramasamy Moopanar Vs. Rathnammal { 1976 (2) MLJ 363 }, to substantiate his contention that the Court, in which a suit is filed, is entitled to restrict its finding only in respect of the issues involved in the case. 6. Per contra, Mr.A.Venkatesan, learned counsel for the respondents would rely upon the judgment in the case of SulochanaAmma Vs. Narayanan Nair (reported in AIR 1994 SC 152 ). 7. We are unable to accept the contention of the learned counsel for the applicant. In the case of review, unless the applicant shows an error apparent on the face of the record in the judgment, it is not for this Court to interfere. Narayanan Nair (reported in AIR 1994 SC 152 ). 7. We are unable to accept the contention of the learned counsel for the applicant. In the case of review, unless the applicant shows an error apparent on the face of the record in the judgment, it is not for this Court to interfere. More over, as held by the Division Bench in the original side appeal, even though a finding was given relating to the title, partition, etc., in which the applicant consciously participated and suffered a decree, in spite of an occasion for him to file an appeal and in fact, he has filed an appeal in A.S.No.324 of 2000 and withdrawn the same on 11.12.2001, the decree passed in O.S.No.8620 of 1996 in respect of all issues framed and decided in his presence is certainly binding on him and on the face of it, there is no error apparent for this Court to interfere. 8. In so far as it relates to the judgments relied upon by the learned counsel for the applicant, in the decision in AIR 2007 SC 900 (cited supra), it was held that in cases of suit for injunction, the Court should have confined itself on the facts and circumstances of the case only to the grounds raised. The relevant portion reads as follows : "In the case of A.L.V.R.Ct.Veerappa Chettiar Vs. Arunachalam Chetti and Others, AIR 1936 Madras 200, it has been held that mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction. There can be a suit only for an injunction. The present suit is only for an injunction. The present suit is only for permanent injunction and therefore, the Lower Appellate Court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground that the appellants have failed to show that they were in possession. This has been done but the declaration that the appellants are not the owners, was not necessary." 9. This has been done but the declaration that the appellants are not the owners, was not necessary." 9. M.Srinivasan,J(as his Lordship then was) in the decision in 1991 (1) LW 564 (cited supra), has held that in a case of permanent injunction wherein there was no prayer for declaration, when the Court has given a finding, the same was reversed in the following words : "The learned Judge has overlooked the fact that the prayer in the suit is for a declaration and permanent injunction and there is no prayer for a consequential decree for refund of the amount collected in excess. Hence, the prayer for refund in the interlocutory application travels beyond the scope of the suit. Learned Trial Judge has no jurisdiction to pass an order directing such a refund during the pendency of the suit when there is no prayer in the plaint itself." 10. That was also the view of V.Sethuraman,J(as his Lordship then was), in the decision reported in 1976 (2) MLJ 363 (cited supra). 11. Unfortunately, the above decisions are not applicable to the facts of this case. Those findings are of no help to the applicant. Having accepted the judgment in O.S.No.8620 of 1996, it is certainly not open to the applicant to go back. 12. As submitted by the learned counsel for the respondents, in the decision in AIR 1994 SC 152 (cited supra), the Supreme Court has held that even in a suit for injunction, when a specific issue was raised, which either directly or indirectly arose and a finding has been given, that finding is binding on the parties and it operates as a res judicata. The observation of the Supreme Court is as follows : "In a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata." 13. In view of the above, as we have already stated, there is no error apparent for this Court to interfere. 14. Therefore, the review application is dismissed. No costs.