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2024 DIGILAW 1850 (MAD)

B. Gopinath v. J. Neelavathi

2024-08-06

R.KALAIMATHI

body2024
ORDER : R. KALAIMATHI, J. This Civil Revision Petition is filed by the Plaintiff in O.S.No.5411 of 2019 on the file of IV Assistant Judge, City Civil Court, Chennai, to set aside the order dated 04.08.2023 passed in I.A.No.5 of 2022 in O.S.No.5411 of 2019 as mentioned supra. 2. Heard Mr.S.Sadasharam, learned counsel appearing for the petitioner and Mr.C.S.Kiran, learned counsel appearing for the respondents. 3. The grievance of the petitioner is that the 1 st respondent had filed a suit in O.S.No.3539 of 2019 against the present petitioner for the relief of declaration that the plaintiff is entitled to half share in the property described in A-schedule and to pass preliminary decree directing the defendant to render accounts relating to the sale of B- Schedule property. In which, the present petitioner filed an application in I.A.No.2 of 2019 under Order VII Rule 11 CPC, wherein, the trial Court upon consideration, allowed the said application on the ground of (i) limitation as well as observed that (ii) there is a bar to seek for the relief under Section 34 of Specific Relief Act and chose to allow the petition. 4. Thereafter, the present petitioner filed a suit against the said Neelavathi and others in O.S.No.5411 of 2019 on the file of IV Assistant City Civil Court, Chennai for the relief of issuance of direction to the defendants to deliver the vacant possession of entire first floor of the suit property and put the plaintiff into possession of the same and to pay future damages at the rate of Rs.25,000/- per month from the date of Plaint till date of delivery of vacant possession of the entire first floor of the suit property. 5. In this suit, counter claim is filed by the said Neelavathi and others. The prayer portion in the counter claim is culled out and given hereunder: ''(a) Declaration declaring the 1 st Defendant is the Co-Owner of the suit schedule property and consequently Permanent Injunction restraining the Plaintiff, his men, agents, servants or anyone claiming under them from entering, alienating or encumbering and from interfering with the peaceful possession and enjoyment of the Property mentioned in the suit schedule; (b) Direct the plaintiff to render true and correct accounts of sale proceeds of Sale Deed Document No.4730 of 2010 dated 09.12.2010 registered at SRO Purasawalkam.'' 6. Mr.S.Sadasharam, learned counsel for the petitioner would strenuously contend that for the same property, at the behest of the present petitioner, an application under Order VII Rule 11 CPC, in I.A. No.2 of 2019 in O.S.No.3539 of 2019 on the file of XVIII Additional City Civil Court, Chennai was filed and allowed consequently. The plaint was rejected. When that be the case, now the 1 st defendant namely, Neelavathi and others are not permitted to put-forth the same claim by way of counter claim. 7. The present revision petitioner filed an application under Order VIII Rule 6(c) of CPC for exclusion of counter claim in I.A.No.5 of 2022 and the same was dismissed. Aggrieved, the plaintiff herein has preferred this Civil Revision Petition. 8. Contending contra, Mr.C.S.Kiran, learned counsel appearing for the respondents would strenuously contend that the 1 st defendant herein namely Neelavathi's plaint was rejected as per the order passed in I.A.No.2 of 2019 in O.S.No.3539 of 2019 on the file of XVIII Additional City Civil Court, Chennai, filed under Order VII Rule 11 CPC. In the given circumstances, the principles of res-judicata cannot operate and her rights were not finally determined and the same can be determined, upon the trial of the suit. To buttress his arguments, reliance was placed on the following judgment: Srihari Hanumandas Totala v. Hemant Vithal Kamat and others reported in (2021) 9 SCC 99 . 9. The earlier suit was rejected as per the order passed under Order VII Rule 11 CPC in I.A.No.2 of 2019 in O.S.No.3539 of 2019 on the file of XVIII Additional City Civil Court, Chennai. In order to apply the principles of res-judicata, the issues should have been tried between same parties and finally should have been decided by such Court. 10. When the issue was not finally decided in the earlier suit in O.S.No.3539 of 2019, I am of the considered view that the respondents can maintain the counter claim and therefore, the impugned order does not suffer from any perversity. 11. In the result, this Civil Revision Petition stands dismissed. Consequently, connected Civil Miscellaneous Petition is also closed. There is no order as to costs.