Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 1885 (MAD)

Kandasamy Naicker v. Paulraj (Died)

2018-06-18

M.SUNDAR

body2018
JUDGMENT : 1. This litigation commenced one score and one year ago when one Paulraj, filed a suit against his maternal uncle for a small piece of immovable property admeasuring 2.4 cents or thereabouts. To be precise, the suit being O.S.No.128 of 1997 was launched on 07.02.1997, on the file of the Additional District Munsif Court, Tuticorin, which shall hereinafter be referred to as 'trial Court', for the sake of brevity, clarity and convenience. 2. As mentioned supra, the extent of land is 2.4 cents or thereabouts and is comprised in Survey No.297, in Mullakadu Village, in Ward No.1 of Muthiayapuram Panchayat in Tuticorin Taluk in Chidambaranar District. There is no dispute that there is a small superstructure in the form of a hut thereon. To be noted, the decree of the trial Court does not mention about this superstructure, but both learned Counsel before me, on instructions, confirmed that the plaint schedule property includes a small superstructure in the form of a hut thereon. 3. Therefore, the aforesaid land admeasuring to an extent of 2.4 cents together with the small superstructure in the form of a hut thereon, shall hereinafter be referred to as 'suit property'. 4. Paulraj, who launched the aforesaid suit shall hereinafter be referred to as 'plaintiff' and his maternal uncle Kandasamy Naicker, against whom the aforesaid suit was launched shall hereinafter be referred to as 'defendant'. This course is adopted for the sake of convenience and clarity. 5. A perusal of the four geographical boundaries of the land qua suit property reveals that three boundaries are properties owned by plaintiff ie., northern, southern and western boundaries. The eastern boundary is admittedly, a poramboke land. In other words, eastern boundary is a land that belongs to Government. 6. There was also a prior suit between the two parties, about which I shall refer to in the latter part of this order. Before I do that, it is to be noted that there was a decree in the prior suit between the two parties and that decree has been marked as Ex.A.1, in the trial Court in the aforesaid proceedings, out of which the instant second appeal arises. Ex.A.1 is a sketch, which gives a bird's eye view of the suit property. A scanned image of the same is as follows: 7. Suffice to say that CHDE in the sketch supra, is the suit property. 8. Ex.A.1 is a sketch, which gives a bird's eye view of the suit property. A scanned image of the same is as follows: 7. Suffice to say that CHDE in the sketch supra, is the suit property. 8. The suit ie., O.S.No.128 of 1997 was filed for recovery of possession. After full contest, the suit was dismissed, in and by a judgment and decree dated 25.08.1998, made by the trial Court, inter alia, on the ground that the suit is hit by order II Rule 2 of Code of Civil Procedure, 1908 ['CPC' for brevity]. 9. In the light of the order this Court proposes to pass today, it may not be necessary to dwell into other aspects which the trial Court has gone into and which was also carried in appeal. 10. Let us now have a look at the basis on which the Order II Rule 2 plea was predicated. 11. As mentioned supra, there was an earlier suit between the same parties and that suit is O.S.No.230 of 1988, on the file of the District Munsif Court, Tuticorin. This suit was also filed by the plaintiff ie., Paulraj. 12. This suit was also filed against 'defendant' ie., Kandasamy Naicker (Paulraj's maternal uncle). This suit shall hereinafter be referred to as 'earlier suit', for the sake of convenience and clarity. 13. Earlier suit was filed inter alia with prayers for declaration of title and for injunction qua possession. In the earlier suit, there were three schedules of properties. It may not be necessary to go into those schedules of properties. Suffice to say that after full contest, the earlier suit was decreed with regard to the declaration of title prayer alone vide judgment dated 10.04.1991. The prayer with regard to injunction qua possession was negatived. It is submitted before this Court today that this decree was carried in appeal and confirmed. In other words, the decree for declaration of title qua the three schedules of properties in the earlier suit is operating. 14. In the present suit (suit out of which the instant second appeal arises), it was the case of the defendant that the property set out as Schedule No.3 in the earlier suit is the suit property herein. In other words, the decree for declaration of title qua the three schedules of properties in the earlier suit is operating. 14. In the present suit (suit out of which the instant second appeal arises), it was the case of the defendant that the property set out as Schedule No.3 in the earlier suit is the suit property herein. Plaintiff, having filed a suit with regard to the suit property with prayers for declaration of title and consequential injunction qua suit property ought to have sought for recovery of possession also is defendant's say. On this basis, the defence predicated on Order II Rule 2 was set up. This is articulated in paragraph No.7 of the written statement filed by the defendant and the same reads as follows: “7.According to Order 2 Rule 2 of Civil Procedure Code this plaintiff is not entitled to split the cause of action when the plaintiff omits the portion of claim which he is entitled to make one of relief in respect of cause of action in O.S.No.230/88. Now he is not entitled to sue for a part of claim so omitted. Hence, on that score alone, the suit has to be dismissed.” 15. Though, a specific plea pertaining to Order II Rule 2 CPC has been taken and has been articulated / pleaded clearly by the defendant in the written statement, an issue was not framed by the trial Court. 16. Trial Court framed four issues and the same has been set out in paragraph No.4 of the judgment of the trial Court. Those four issues are as follows: “Any Other Language” 17. A perusal of the aforesaid issues leaves no doubt in one's mind that an issue pertaining to order II Rule 2 CPC has not been framed. 18. Notwithstanding an issue not being framed, as mentioned supra, trial Court non-suited the plaintiff inter-alia by holding that the suit is hit by Order II Rule 2 CPC. This is articulated by the trial Court in paragraph No.9 of its judgment. Those portions of paragraph 9, which are relevant are as follows: “Any Other Language” [Underlining made by Court to supply emphasis and highlight] 19. Aggrieved, plaintiff carried the matter by way of regular first appeal under Section 96 of CPC. This is articulated by the trial Court in paragraph No.9 of its judgment. Those portions of paragraph 9, which are relevant are as follows: “Any Other Language” [Underlining made by Court to supply emphasis and highlight] 19. Aggrieved, plaintiff carried the matter by way of regular first appeal under Section 96 of CPC. This regular first appeal is A.S.No.62 of 1999, on the file of the Principal District Judge's Court, Tuticorin, which shall hereinafter be referred to as 'first appellate Court' for the sake of convenience and clarity. 20. After full contest, the first appellate Court allowed the appeal. In other words, the first appellate Court reversed the aforesaid judgment of the trial Court. While reversing the aforesaid judgment of the trial Court, the first appellate Court dislodged the finding returned by the trial Court with regard to order II Rule 2 CPC, on two main grounds. One ground is that there is no plea in the written statement with regard to Order II Rule 2 CPC. The other ground is, no issue has been framed with regard to Order II Rule 2 CPC, by the trial Court. This is articulated in paragraph No.14 of the judgment of the appellate Court and those portions of the judgment of the first appellate Court in paragraph No.14, in this regard are as follows: “The learned counsel for the appellant argued no issue for order 2 Rule 2 and infact there was no plea also in the written statement. Further he submitted that the previous suit was filed leaving this suit property and if this property also was included order 2 Rule 2 would be a bar. He filed the suit since on the basis of gift deed by 3rd party, respondent tried to interfere and filed this suit leaving this property and so he argued that the finding of the lower court is not correct. On the contrary the learned counsel for the respondent argued that in both O.S.230/88 and in A.S.192/91 the respondent failed and the appellant have got declaratory decree and in that suit the present schedule is shown as 3rd schedule but the recovery of possession was not claimed there in that suit. ..... ........ On the contrary the learned counsel for the respondent argued that in both O.S.230/88 and in A.S.192/91 the respondent failed and the appellant have got declaratory decree and in that suit the present schedule is shown as 3rd schedule but the recovery of possession was not claimed there in that suit. ..... ........ Though the learned Counsel for the respondent argued about the bar of Order 2 Rule 2 CPC there is no plea for Order 2 R 2 nor any issue any amount of argument or evidence will be of no use. The lower court has given the finding in respect of order 2 Rule 2 on the basis of the arguments laid on the side of the respondent which cannot be sustainable under law. So this point is found against the respondent and in favour of the appellant. 21. With regard to the ground that there is no plea, it is obviously and clearly incorrect, as the defendant has in fact raised this in written statement and articulated the same very clearly in paragraph No.7 of the written statement, which has been extracted supra. 22. When such is the position, it leaves us with only one issue and that is whether the trial Court was correct in returning a finding with regard to Order II Rule 2 CPC, without framing an issue on the same. 23. Before I proceed further, it may be necessary to mention that this second appeal was admitted on 18.07.2001, on the following substantial question of law: “When the plaintiff himself has come forward with a plea that the occupation, which was originally permissive in nature, was treated as an occupation on the basis of a contract of tenancy, is not a notice, as contemplated under Section 106 of the Transfer of Property Act a condition precedent for filing a suit to recover possession? 24. 24. However, to be noted, in the memorandum of grounds of appeal, the appellant, as protagonist qua this second appeal has raised a question pertaining to Order II Rule 2 CPC and that is Question No. C under the caption substantial question of law, which reads as follows: “C. Whether the Lower Appellate Court is right in rejecting the question of law under order 2 rule 2 i.e. order 2 rule 2 would be a bar when the suit property was not included in the previous suit, on the ground that there was no plea or issue, when particularly the courts below had given findings with regard to the same.” 25. In the hearing today, Mr.Narendra Vasan, learned Counsel for the appellant submitted that the aforesaid question 'c' touching upon Order II Rule 2 CPC, may please be formulated and added as an additional substantial question of law. 26. From the narrative supra, it will be clear that the aforesaid question 'c' definitely arises out of the pleadings and out of the findings returned in the Courts below. It does qualify as a substantial question of law, in the light of the elucidative principles laid down by the Hon'ble Supreme Court in Chunilal V.Mehta's case, as to what a substantial question of law is. Chunilal V.Mehta's case is a Constitution Bench judgment reported in AIR 1962 SC 1314 . To be noted, Chunilal V.Mehta's case approved a Full Bench judgment of this High Court ie., Madras High Court in Rimmalapudi Subba Rao's case reported in AIR 1959 Madras 969. 27. This continues to be good law, as it has been followed in Santosh Hazari's case reported in (2001) 3 SCC 179 , and in Malan Bi's case reported in (2016) 10 SCC 315 , which was rendered by the Hon'ble Supreme Court as recently as 03.10.2016. 28. After hearing progressed for some time, it came to light that the sole pivotal issue in this entire litigation is Order II Rule 2 CPC. 29. With regard to the other substantial question of law touching upon Section 106 of the Transfer of Property Act, considering the position that jural relationship between the parties has not been established to be lessor lessee relationship, a notice of termination of lease under Section 106 may not arise and therefore, that substantial question of law does not arise in this second appeal. I accept the argument of Mr.Meenakshi Sundaram (exercising his right under Sub-Section 5 of Section 100 CPC) that the aforesaid first substantial question of law, touching upon Section 106 of Transfer of Property Act, does not arise in the instant case. On a demurer even if it arises it cannot but be answered in the negative as jural relationship of lessor lessee has not been established. 30. With regard to the second substantial question of law, touching upon Order II Rule 2 CPC, Mr.Meenakshi Sundaram, learned Counsel for plaintiff (respondent before me) submitted that unless an issue is framed, the parties cannot let in evidence on an aspect of the matter. It is his specific and emphatic submission that if the trial Court had framed an issue with regard to Order II Rule 2 CPC, the plaintiff would have let in evidence and demonstrated that the suit is not hit by Order II Rule 2 CPC. 31. Per contra, Mr.Narendra Vasan, learned Counsel submits that the defendant would also have been able to let in evidence to demonstrate that the suit is in fact hit by Order II Rule 2 CPC. 32. From the rival submissions, one factor that emerges clearly is that it was imperative that the trial Court had framed an issue with regard to Order II Rule 2 CPC and it is necessary that evidence should have been let in, in this regard. To this extent, the first appellate Court was correct in holding that the trial Court ought not to have answered the issue pertaining to Order II Rule 2 CPC and returned a finding pertaining to the same without actually framing an issue. However, what is to be noted is, having said this, nothing prevented the first appellate Court from giving an opportunity to the parties to let in evidence by framing an issue in this regard, as such a course is not alien to first appellate Court, as it is the last Court of facts. 33. Be that as it may, the first appellate Court had not done so, though a specific point in this regard had been set out for consideration in the appeal. This is point No.4. 33. Be that as it may, the first appellate Court had not done so, though a specific point in this regard had been set out for consideration in the appeal. This is point No.4. The points for consideration in the appeal have been set out in paragraph No.10 of the judgment of the first appellate Court and I deem it appropriate to extract the same, which reads as follows: “10.Points for consideration in this appeal are, 1. Whether I.A.259/2000 deserves to be allowed? 2. Whether the appeal deserves to be allowed regarding the issue that the identity of the property is not correct? 3. Whether the suit of the appellant is bad for non-joinder of notice u/s. 106 T.P. Act of for want of revocation of permission? 4. Whether the suit is hit by Order 2 R 2 CPC? 5. Whether the appeal deserves to be allowed?? [Underlining made by Court to supply emphasis and highlight]. 34. Therefore, when the appellate Court has clearly set out Order II Rule 2 CPC, as a point for consideration, it could have well been dealt with by formulating the same as an issue and evidence could have been let in the first appellate Court. 35. In the light of the narrative supra, it unfurls and comes to light that this is a fit case for remand under Rule 23-A of Order XLI of CPC as the Courts below have passed judgments and decrees which are not on a preliminary point. Therefore, Rule 23-A of Order XLI will apply. To be noted, all the provisions / rules under Order XLI CPC shall apply to appeals and appellate decrees. Therefore, there is no dispute or doubt that aforesaid Order XLI Rule 23-A, applies to a second appeal in the light of Order XLII Rule 1 CPC. 36. As mentioned supra, the first appellate Court, being the last Court of facts exercising powers under Section 96 CPC, has the power to frame an issue and direct the parties to let in evidence on the same. 37. Considering the 'distance' the litigation has travelled ironically in contradistinction to 'proximity' of the relationship between the parties, this Court deems it appropriate to remand the matter to the first appellate Court instead of remanding it to the trial Court. 38. There is one more reason as to why such a course is adopted. 37. Considering the 'distance' the litigation has travelled ironically in contradistinction to 'proximity' of the relationship between the parties, this Court deems it appropriate to remand the matter to the first appellate Court instead of remanding it to the trial Court. 38. There is one more reason as to why such a course is adopted. That reason is, all other findings returned by the first appellate Court deserve to be confirmed and there is no scope for interfering with the same in this second appeal owing to discussion supra. 39. I answer the second substantial question of law by holding that Order II Rule 2 CPC, certainly is the pivotal point / fulcrum in this lis and it has to be decided but by letting in evidence. 40. In the light of the aforesaid answer to the second substantial question of law and in the light of the narrative and discussion supra, this Court remands this matter back to the first appellate Court ie., the Principal District Judge's Court, Tuticorin, with the following directions: *Remand is only on one point ie., Order II Rule 2 CPC. *Point No.4, set out by the first appellate Court for consideration, which reads as follows: “4.Whether the suit is hit by Order 2 R 2 CPC” shall now be an issue framed by the first appellate Court. *The aforesaid issue shall be the lone issue before the first appellate Court and the first appellate Court shall not go into any other aspect of the matter. *All other findings returned by the first appellate Court are confirmed and therefore, shall be held to be conclusive. *Evidence shall be let in by the parties only on the aforesaid lone issue. *Considering the length of time as well as the proximity of the relationship of the parties, or in other words, distance which the litigation has travelled and the proximity of the parties, the first appellate Court shall decide the aforesaid issue as expeditiously as possible and in any event within three months from the date of receipt of a copy of this order. *As per Rule 26-A of Order XLI CPC, this Court fixes 23.07.2018 (Monday) as the date for appearance of parties before the Court to which this matter is remanded ie., the Principal District Judge's Court, Tuticorin. *This point of remand shall be heard as A.S.No.62 of 1999 itself. *As per Rule 26-A of Order XLI CPC, this Court fixes 23.07.2018 (Monday) as the date for appearance of parties before the Court to which this matter is remanded ie., the Principal District Judge's Court, Tuticorin. *This point of remand shall be heard as A.S.No.62 of 1999 itself. *Copy of this order shall be issued by the Registry of this Court on 25.06.2018 and all the records received from the Courts below shall be sent to the said Principal District Judge's Court, Tuticorin, as expeditiously as possible and in any event in such a manner that it reaches the said Court on or before 09.07.2018. 41. Before parting with this case, one aspect is highlighted. It will come to light that appellant, as protagonist herein, had proposed four questions in the memorandum of grounds of second appeal as according to the appellant (at that point of time), all the four questions qualify as substantial questions of law. However, when the second appeal was admitted on 18.07.2001, this Court admitted the second appeal, only on one of the four questions of law. 42. Pointing this out, Mr.Meenakshi Sundaram, learned Counsel for the respondent in this second appeal submitted that when a second appeal is admitted and notice is issued to the respondent, it may be necessary to also set out the exact substantial question/s of law on which the second appeal has been admitted by this Court. To buttress this submission of his, learned Counsel placed reliance on a recent judgment of the Hon'ble Supreme Court dated 19.02.2018, reported in (2018) 4 SCC 562 . This is Surat Singh (Dead) Vs. Siri Bhagwan case. Learned counsel drew my attention to paragraphs 19 and 20 of the said judgment, which reads as follows: “19.In our considered opinion, the manner and the procedure adopted by the High Court while allowing the second appeal are against the procedure laid down in Section 100. Section 100 of the Code reads as under: “100.Second appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 20. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is ‘satisfied’ that the case involves a ‘substantial question of law’. Sub-section (3) makes it obligatory upon the appellant to precisely state in memo of appeal the ‘substantial question of law’ involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the High Court.” [Underlining made by Court, to supply emphasis and highlight]. 43. Pressing into service the aforesaid recent judgment of the Hon'ble Supreme Court, learned Counsel submits that it is necessary that the Registry of this Court sends to the respondent, the memo of appeal along with the substantial question/s of law formulated by the High Court ie., substantial question/s of law on which the Second Appeal is admitted. 43. Pressing into service the aforesaid recent judgment of the Hon'ble Supreme Court, learned Counsel submits that it is necessary that the Registry of this Court sends to the respondent, the memo of appeal along with the substantial question/s of law formulated by the High Court ie., substantial question/s of law on which the Second Appeal is admitted. In this regard, it is pointed out that the Rule that is operating now is Rule 16 of Order IV of the Appellate Side Rules of this Court, which reads as follows: “O.4 R.16:- Every memorandum of appeal against an order, appellate decree or appellate order shall be accompanied by - (1) as many clear authenticate copies on plain paper of the memorandum of grounds of appeal as there are respondents to be served, together with another such copy for the Court record; (2) the particulars for service of such notices on the respondents set out in Form No.2 of the schedule to these rules; (3) the fees prescribed for service of such notices on the respondents; and (4) such other papers as re referred to in Order XLII and XLIII of the code? [said Rule 2 has been underlined to supply emphasis]. 44. Sub-Rule 2 of Rule 16 of Order IV of the Appellate Side Rules takes us to Form No.2. 45. Form No.2 says that it is a form for Order IV Rule 6. It does not specifically mention Rule 16. However, as Sub-Rule 2 of Rule 16 specifically mentions Form No.2, it follows that Form No.2, is the form in which notice is to be sent to the respondent, when this Court admits a second appeal and issues notice. 46. This Court is also informed that this is the procedure in vogue now, ie., procedure of sending notice in Form No.2. There is no specific column in Form No.2, which talks about substantial question/s of law on which the second appeal is admitted. It is absolutely necessary for the respondent and the counsel whom the respondent instructs to know the exact substantial question/s of law on which a second appeal has been admitted and that substantial question/s of law on which notice has been issued by the Court, so as to make effective representation in the second appeal. It is also necessary for the respondent to exercise his / her rights under Sub-Section 5 of Section 100 CPC. 47. It is also necessary for the respondent to exercise his / her rights under Sub-Section 5 of Section 100 CPC. 47. Sub-Section 5 of Section 100 CPC gives right to a respondent in a second appeal to argue at the hearing of an appeal that the case does not involve the substantial question/s of law, which has been raised by the appellant and which has been formulated by the Court for admission. This is more so, as the respondent will not be before the Court at the time of admission of the second appeal with the exception of cases where the respondent lodges a caveat. 48. Therefore, it may be necessary in days to follow for Registry of this Court to clearly mention the substantial question of law / questions of law, which have been formulated and on which the second appeal has been admitted while sending notice in Form No.2 under Order IV Rule 16, Sub-Rule 2 of the Appellate Side Rules of this Court. This will be in tune with the principle laid down by Hon'ble Supreme Court in Surat Singh's case ie., (2018) 4 SCC 562 . Such a course would help parties focus on the core issue, more so, in the light of the limited and narrow scope of Section 100 CPC, wherein the entire matter is decided on substantial question of law. 49. Second Appeal is disposed of on above terms. Parties to bear their respective costs.