Madras High Court
K.Viswanathan vs R.Appavoo Chettiar on 8 April, 2010
Bench: V. Ramasubramanian, D. Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/04/2010 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN Appeal Suit (MD) No.524 of 1996 and Appeal Suit (MD) No.657 of 1997 A.S.No.524/1996 1.K.Viswanathan 2.Karuppanna Chettiar .. Appellants 1 & 2/Defendants vs 1.R.Appavoo Chettiar 2.Angamuthu Chettiar 3.R.P.Sundaram 4.M.Appavoo Chettiar 5.M.Venkataraman 6.S.Palanisamy 7.S.Mohan .. Respondents/Plaintiffs A.S.No.657/1997 1.Appavoo Chettiar 2.Angamuthu Chettiar 3.R.P.Sundaram 4.M.Appavoo Chettiar 5.M.Venkataraman 6.S.Palanisamy 7.S.Mohan .. Appellants 1 to 7/Plaintiffs 1 to 7 vs 1.K.Viswanathan 2.Karuppanna Chettiar .. Respondents 1 & 2/Defendants 1 & 2 These Appeals are filed under Section 96 CPC against the judgment and decree dated 25.4.1996 made in O.S.No.368 of 1991 on the file of the Subordinate Judge of Karur. !For Appellants in A.S.524/96 and for Respondents in A.S.657/97 ... Mr.S.Parthasarathy, Senior Counsel For Appellants in A.S. 657/97 ... Mr.S.M.Loganathan ^For Respondents in A.S.524/96 ... Mr.D.Rajendran :COMMON JUDGMENT
V. RAMASUBRAMANIAN, J.
A suit in O.S.No.368 of 1991 was filed under Section 92 CPC, seeking the framing of a Scheme in respect of a Trust known as 'Karur Vanniya Chettiar Public Charitable Trust' and for various other reliefs, on the file of the Sub Court, Karur, by a group of seven persons, claiming to be the members of Board of Trustees. When the suit was pending, the first defendant in the aforesaid suit, filed a suit in O.S.No.270 of 1992 against the plaintiffs in the first suit, seeking a decree of permanent injunction, restraining the defendants therein from interfering with the administration of the aforesaid Trust.
2. Simultaneously, the plaintiffs 1 and 2 in the first suit viz., O.S. No.368 of 1991 also filed another suit in O.S.No.271 of 1992, seeking a decree of permanent injunction, against the first defendant in the previous suit. Again, the plaintiffs in the first suit also filed another suit in O.S.No.217 of 1993 against the defendants in the earliest suit, seeking a decree of permanent injunction, restraining the defendants therein, from altering the physical features of the suit properties. Closely on the heals of the aforesaid suit, the first defendant in the earliest suit moved a suit in O.S.No.218 of 1993 against the plaintiffs in the earliest suit, seeking a decree of permanent injunction, restraining the defendants therein from interfering with the Management of the Kalyana Mandapam belonging to the Trust.
3. All the above five suits were tried together by the Sub Court and ultimately, by a common judgment and decree, dated 25.4.1996, the Sub Court framed a Scheme for the administration of the Trust by passing a decree in O.S.No.368 of 1991. But the trial court dismissed all the other four suits.
4. Aggrieved by the Scheme so framed, the defendants in O.S.No.368 of 1991 have come up with the appeal A.S.No.524 of 1996. Similarly, the plaintiffs in O.S.No.368 of 1991 have come up A.S.No.657 of 1997, on the short ground that while framing the Scheme, the Trial Court ought to have removed the defendants from the Trusteeship. No appeals have been filed by any of the parties, as against the dismissal of the other four suits.
5. We have heard Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellants in A.S.No.524 of 1996 and the respondents in A.S.No.657 of 1997, Mr.D.Rajendran, learned counsel appearing for the respondents in A.S.No.524 of 1996 and Mr.S.M.Loganathan, learned counsel appearing for the appellant in A.S.No.657 of 1997.
6. Factual details of the dispute between the parties may not be of relevance any longer in view of the fact that five suits were tried together and disposed of by a common judgment, but the parties have chosen to come up with the appeals against the judgment in one suit only. Therefore the present appeals, in our view, may be barred by res judicata.
7. In order to appreciate the bar of res judicata, it may be necessary to have a look at the prayers made and the issues framed in all the five suits. They are presented in the form of a Tabular Statement as follows:-
Suit No. Relief Prayed For Issues Framed O.S.No.
368 of 1991 To frame a Scheme to set right 1. Whether the plaintiffs are entitled the Management of Karur Vaniya to have a Scheme framed for the Chettiar Public Charitable Trust, management of the under Section 92 CPC. Trust property ?
2.Whether the first defendant is liable to hand over the books, accounts, receipts and other papers of the Trust, to the plaintiffs ?
3. Whether the first defendant is responsible for maintenance of accounts ?
4. Whether the first defendant is responsible for the omissions and commissions of the Trust ?
5. Whether the first defendant has to be removed from the administration of the Trust ?
6. Whether the suit is wrongly instituted ?
7. Whether the suit is instituted by the elected representatives ?
8. To what reliefs the plaintiffs are entitled to ?
O.S.No.270 of 1992 For a Permanent Injunction, 1. Whether the suit Trust is a restraining the defendants Public Charitable Trust ? from interfering with the administration of the Trust. 2. Whether this Court has a jurisdiction to entertain the suit ?
3. Whether the claim of the plaintiff that he has the right to administer the Trust is true ? or Whether it would go by majority view ?
4. Whether the plaintiff is entitled to the reliefs as prayed for in the suit ?
5. To what other reliefs the plaintiff is entitled to ?
O.S.No.271 of 1992 For a Permanent Injunction, 1. Whether the suit Trust is restraining the defendants a Public Charitable Trust ? from interfering with the peaceful management of the 2. Whether this Court has jurisdiction Trust property. to entertain the suit ?
3. Whether the claim of the plaintiff that he has the right to administer the Trust is right ?
4. Whether it is correct to say that the defendant alone has a right to manage the Trust Board ?
5. Whether the plaintiff is entitled to the relief as prayed for ?
6. To what other reliefs the plaintiff is entitled to ?
O.S.No.217 of 1993 For a Permanent Injunction, 1. Whether the plaintiffs are entitled restraining the defendants to the relief of permanent injunction as from peaceful enjoyment prayed for in the suit ?
of the Trust property by the plaintiffs cannot be changed without the permission of the Trustees. 2. Whether it is correct to say that the defendants did not make any changes in the buildings of the Kalyana Mandapam ?
3. To what other reliefs the plaintiffs are entitled to ?
O.S.No.218 of 1993 For a Permanent Injunction 1. Whether the plaintiff is entitled restraining the defendants to the relief of permanent injunction as to interfere with the prayed for in the suit ?
changes made by the plaintiffs in the kitchen room of the 2. Whether the plaintiff has constructed Kalyana Mandapam. a kitchen room in the Kalyana Mandapam, without the consent of the defendants ?
3.To what other reliefs the plaintiff is entitled to ?
8. The trial Court first took up (i) Issue Nos.1 to 4 and 7 in O.S.No.368 of 1991 (ii) Issue Nos.1 and 3 in O.S.No.270 of 1992 and (ii) Issue Nos.1, 3 and 4 in O.S.No.271 of 1992, together for consideration. On these issues, the trial Court held in paragraph-92 of its judgment -
(i) that R.Appavoo Chettiar and others, who are the plaintiffs in O.S. No.368 of 1991 have a right to seek the framing of a Scheme for the proper administration of the Trust;
(ii) that though the first defendant in O.S.No.368 of 1991 was found liable to hand over to the plaintiffs, the books, accounts, receipts and other documents relating to the Trust, it is upto the Board which takes over hereafter to examine the records filed into Court by the parties, since it is claimed by the first defendant that all those records had been filed into Court;
(iii) that as per the Deed of Trust and the evidence let in, the defendants are liable to render accounts;
(iv) that the first defendant was responsible for not convening the meetings of the Board, not submitting accounts to the other Trustees, not maintaining the accounts properly on time, not remitting the income into Bank and retaining the same on hand and not providing any space for the opinion of the other Trustees and consequently there is a necessity to form a new Board for the management of the Trust;
(v) that the first defendant K.Viswanathan may continue to be the Chairman of the Board of Trustees till a new management is elected, in view of his past contribution to the Trust before and after the creation of the Trust;
(vi) that K.Viswanathan has a right to continue to be a Trustee, but he will be bound by the decision of the majority of Trustees to be elected in pursuance of the Scheme;
(vii) that the suit O.S.No.368 of 1991 had been properly instituted under Section 92 for framing a Scheme;
(viii) that the Trust in question is a Public Charitable Trust;
(ix) that K.Viswanathan who has instituted the suit O.S.No.270 of 1992, describing himself as the Chairman of the Trust, cannot claim to be the permanent Chairman;
(x) that the Trust has to be administered only in accordance with the views of the majority of the members of the Board of Trustees; and
(xi) that the Secretary and Trustee Angamuthu Chettiar has no right to administer the Trust independently.
9. The trial Court then took up for consideration issue No.2 in O.S. No.217 of 1993 and issue No.2 in O.S.No.218 of 1993. These issues related to the construction of a kitchen in the Kalyana Mandapam owned by the Trust. On these issues, the trial Court held in paragraph-93 of its judgment that no finding was necessary, in view of its finding on various issues in O.S. No.368 of 1991.
10. The trial Court then took up the issue of jurisdiction, framed as issue No.6 in O.S.No.368 of 1991, issue No.2 in O.S.No.270 of 1992 and issue No.2 in O.S.No.271 of 1992. In paragraph-94 of its judgment, the trial Court held that it had jurisdiction to entertain the suit.
11. After grouping the various issues arising in various suits, on the basis of a common thread and recording the findings as aforesaid, the trial Court then took up the remaining issues framed in all the 5 suits, which related to the reliefs prayed for in each of them and the entitlement of the plaintiffs in those suits to any reliefs. In paragraph-95 of its judgment, the trial Court held that a Scheme had to be framed for the proper administration of the Trust. The trial Court also framed a Scheme in paragraph-97 of its judgment for its future administration. The Scheme so framed provided for the constitution of a Board of Trustees, their election etc. At the same time, the trial Court held that though K.Viswanathan was found to have acted in a dictatorial manner, he was not found to be guilty of any misfeasance or malfeasance or misappropriation of funds. Therefore, the trial Court held that he was not liable to be removed from the trusteeship, though he cannot continue as its Chairman.
12. Consequently, the trial Court dismissed O.S.No.270 of 1992, holding that the reliefs sought for by Mr.K.Viswanathan in that suit cannot be granted, in view of the Scheme framed in O.S.No.368 of 1991. For the same reasons, the trial Court dismissed O.S.No.271 of 1992 also. In so far as the other two suits O.S.Nos.217 of 1993 and 218 of 1993 are concerned, the Court held that the prayer for permanent injunction made in those two suits, do not survive, in view of the Scheme framed.
13. The net effect of the common judgment of the trial Court in all the 5 suits, is (i) that a Scheme for the proper administration of the Trust was framed; and (ii) that the prayer for removal of K.Viswanathan from the trusteeship, was negatived, even while rejecting the claim of K.Viswanathan to be entitled to continue as Chairman.
14. Therefore K.Viswanathan has come up with one appeal, aggrieved by the very framing of the Scheme under Section 92 CPC. The rival group has come up with another appeal, agreeing with the Scheme framed, but disagreeing with the finding of the trial Court on the question of removal of K.Viswanathan from the trusteeship.
15. In the background of the above facts, let us now take up the two appeals on hand, one after another.
16. A.S.No.524 of 1996 is by K.Viswanathan and Karuppanna Chettiar, who were defendants in O.S.No.368 of 1991. But K.Viswanathan was also the plaintiff in O.S.No.270 of 1992, in which he described himself as the Chairman of the Trust in question. He had claimed a decree of permanent injunction in his suit O.S.No.270 of 1992, to restrain the defendants therein, who were the plaintiffs in the Scheme suit, from interfering with his right of management. This K.Viswanathan was also the sole defendant in O.S.No.271 of 1992, filed by two other Trustees, as representing the Trust, seeking a permanent injunction against K.Viswanathan. Similarly, K.Viswanathan was the first defendant in O.S.No.217 of 1993, wherein the rival camp sought a similar injunction. Another suit in O.S.No.218 of 1993 was instituted by Mr.K.Viswanathan, as the Chairman of the Trust against the rival group seeking a permanent injunction.
17. Thus the parties to the proceedings, the reliefs sought for and the issues that arose for consideration, were inextricably intertwined. This is why, the trial Court grouped the issues arising in all the suits into 4 or 5 categories and rendered common findings. In such circumstances, the failure of K.Viswanathan to file appeals against the decrees passed against him in all other suits, would certainly operate as res judicata, in so far as his present appeal against the Scheme decree framed in O.S.No.368 of 1991 is concerned. Hence his appeal A.S.No.524 of 1996 is liable to be dismissed.
18. Karuppanna Chettiar who is the second appellant in A.S.No.524 of 1996, was the second defendant in O.S.No.368 of 1991. He was not a party to O.S.Nos.271 of 1992 and 218 of 1993. But he was the fourth defendant in O.S.No.270 of 1992 filed by the first appellant K.Viswanathan himself. He was also the second defendant in O.S.No.217 of 1993. Therefore, what applies to K.Viswanathan, applies equally to Karuppanna Chettiar, the second appellant in A.S.No.524 of 1996. Hence, A.S.No.524 of 1996 is liable to be dismissed.
19. Coming to the other appeal A.S.No.657 of 1997, filed by the rival group, they are not, as stated above, aggrieved by the Scheme decree granted in O.S.No.368 of 1991. Their grievance is limited to the extent that the trial Court refused to remove K.Viswanathan from trusteeship.
20. But the claim made by K.Viswanathan to manage and administer the Trust, in his own right, was one of the issues framed in O.S.No.270 of 1992. It was also one of the issues framed in O.S.No.271 of 1992. This rival camp had also sought decrees of permanent injunction against K.Viswanathan in their own suits, all of which have been dismissed. Therefore, the rival group also should have challenged the decrees in which, the right of K.Viswanathan was adjudicated, as one of the issues. Their failure to do so, makes even their appeal A.S.No.657 of 1997, liable for dismissal on the same ground of res judicata.
21. In Lonankutty vs. Thomman {1976 (3) SCC 528}, two suits were filed in the trial Court, one by the appellant and the other by the respondent. Both suits were partially decreed by the trial Court. Each party aggrieved by both the decrees, filed two appeals each. Thus there were 4 appeals arising from 2 suits. The District Court dismissed all the appeals. As against the common judgment of the District Court, one of the parties filed one Second Appeal in the High Court, which actually arose out of the dismissal of the appellant's suit. Therefore, the Supreme Court held that the decision of the District Court rendered in the appeal arising out of the respondent's suit, became final and conclusive and hence it could not be set at naught in the Second Appeal arising out of the appellant's suit. It was held in paragraph-22 therein that the failure of the respondents to challenge the decision of the District Court in so far as it pertained to their suits, attracted the application of Section 11, since the decision of the District Court on issues arising in the respondent's suit operated as res judicata, due to the non filing of the appeal.
22. It was held by the Supreme Court in Premier Tyres Limited vs. Kerala State Road Transport Corporation {1993 Supp. II SCC 146}, that the effect of non filing of an appeal against a judgment and decree, is that it becomes final. The finality of finding recorded in the connected suit due to non filing of appeal would preclude the Court from proceeding with the appeal in the other suit.
23. Ram Prakash vs. Charan Kaur {1997 (9) SCC 543}, arose out of a case where the petitioner as well as the respondent had filed civil suits against each other claiming damages. Both the suits were dismissed by the trial Court. The respondent filed an appeal against the dismissal of his suit and the same was allowed. When the petitioner filed a second appeal against the decree of the Appellate Court, without challenging the dismissal of his suit, the High Court rejected the second appeal as having been barred by res judicata. While affirming the said decision, the Supreme Court held that since the finding of the Appellate Court had attained finality in one suit, it cannot be gone into in another appeal.
24. We do not think that it is necessary to multiply the case law on the point, as it is fairly well settled. Therefore, we hold that both the appeals are liable to be dismissed on the ground of res judicata. Accordingly both the appeals are dismissed. However, there will be no order as to costs, since the appeals are between the same parties as against each other.
To The Subordinate Judge, Karur.