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2016 DIGILAW 1069 (MAD)

Mahesh v. Sivanthi Gnanamuthu Nadar

2016-03-14

V.M.VELUMANI

body2016
ORDER : This Civil Revision Petition is filed, against the judgment and decree, dated 23.01.2014, made in O.S.No.823 of 2007 on the file of the Additional District Munsif Court, Tenkasi, and strike down the same. 2. The petitioner is the third party in the Suit in O.S.No.823 of 2007, which was filed by the respondents 1 to 3 against the respondents 4 to 6. According to the petitioner, the judgment and decree, dated 23.02.2014, made in O.S.No.823 of 2007 was obtained by the respondents 1 to 3 by playing fraud on the Court in collusion with respondents 4 to 6. No notice under Section 80 C.P.C. issued before the filing of the Suit. The respondents 4 to 6 did not conduct the Suit properly. The learned Judge failed to verify the description of the property in O.S.No.728 of 2005 covered with description of the property in O.S.No.823 of 2007. The relief of mandatory injunction sought for by the respondents 1 to 3 is not maintainable in civil proceedings. No Suit, can be filed, against the Government authority to sub divide and issue the patta. The relief sought for by the respondents 1 to 3 against the respondents 4 to 6 is not a civil right. The respondents not approached the Court with clean hands. The subject matter in O.S.No.823 of 2007 is the same as that of in O.S.No. 728 of 2005 and the issue is pending in S.A.No.15 of 2011, prayed for allowing this Civil Revision Petition. 3. The learned counsel for the respondents filed counter along with the vacate stay petition and it is submitted that the property in question belonged to the respondents 1 to 3 and they have inherited the same from their forefathers. When the dispute arose between the respondents 1 to 3, the first respondent filed O.S.No.620 of 2007 for partition, on the file of the learned Principal District Munsif, Tenkasi. Subsequently, a compromise decree was passed on 22.08.2007, by recording the compromise memo. Based on the compromise decree, the respondents 1 to 3 approached the respondents 4 to 6 for sub-division and issue of patta. The sixth respondent failed to exercise his right and failed to measure and sub-divide the property. Therefore, respondents 1 to 3 filed Suit in O.S.No.823 of 2007. The respondents 4 to 6 contested the Suit and after trial, Suit was decreed. The sixth respondent failed to exercise his right and failed to measure and sub-divide the property. Therefore, respondents 1 to 3 filed Suit in O.S.No.823 of 2007. The respondents 4 to 6 contested the Suit and after trial, Suit was decreed. The contentions raised by the petitioner were considered by the trial Court and then only decree was passed. The respondents 1 to 3 have not suppressed any material fact and did not obtain any decree by fraud. The petitioner was aware of the Suit filed by the respondents 1 to 3 and is claiming over the property was put forth by the respondents 4 to 6, which was considered by the learned Judge. The petitioner has no Locus standi to file the present Civil Revision Petition and the relief sought for in the petition is not maintainable. 4. The learned Government Advocate appearing for the respondents 4 to 6 submitted that it is not correct to state that the respondents 4 to 6 colluded with respondents 1 to 3 and did not contest the Suit properly. Respondents 4 to 6 filed written statement and defended the Suit. 5. The learned counsel for the petitioner relied on the following judgements. 1. J. Sivasubramanian and another v. N. Govindarajan and another, reported in 1998 (1) LW 372 is as follows: “9. After having heard learned counsel on both sides, I feel that this is a fit case where the Court is bound to invoke Article 227 of the Constitution of India and grant relief to the petitioners. 10. I would not have thought of interfering with the decree of the lower Court, but for the admission of the respondents themselves that petitioners are in possession, and, therefore, defendant (second respondent) wanted recovery of possession of the properties from them.” 2. K.K. Modi v. K.N. Modi and others reported in 1998 (3) SCC 573 is as follows: “44. One of the examples cited as an abuse of the process of court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts, amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court, especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of courts' discretion, whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.” 6. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for the respondents 1 to 3 and the learned Government Advocate appeared for the respondents 4 to 6 and perused the materials available on record. 7. The petitioner is seeking for an order to quash the judgment and decree, dated 23.01.2014, made in O.S. No. 823 of 2007. According to the petitioner, the decree obtained by the respondents 1 to 3 by playing fraud on Court. If that be so, remedy available to the petitioner is either file an appeal after obtaining leave from the appellate Court or take proper legal proceedings, to set aside the judgment and decree in question, which is said to be obtained by alleged fraud played by the respondents 1 to 3. The relief sought for in the Civil Revision Petition is not maintainable and the petitioner is not entitled to get such relief. The power of superintendence is a discretionary power and it has to be used sparingly in appropriate cases. In the present case, it is not a fit case to exercise the power of superintendence of this Court, under Article 227 of the Constitution of India. In the circumstances, the judgment relied on by the learned counsel for the petitioner, do not advance the case of the petitioner and is not applicable to the facts of the present case. In the present case, it is not a fit case to exercise the power of superintendence of this Court, under Article 227 of the Constitution of India. In the circumstances, the judgment relied on by the learned counsel for the petitioner, do not advance the case of the petitioner and is not applicable to the facts of the present case. Hence, this Civil Revision Petition is liable to be dismissed. 8. In the result, this Civil Revision Petition is dismissed. No Costs. Consequently, connected Miscellaneous Petitions are closed.