Madras High Court
L.Chandrakumar vs S.Prema on 14 March, 2024
Author: R.Subramanian
Bench: R.Subramanian
OSA NOS.61 AND 95 OF 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.03.2024
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
OSA NOS.61 AND 95 OF 2022
AND
CMP NOS.4715 OF 2022, 4699, 4704 AND 26248 OF 2023
IN OSA NO.61 OF 2022
AND
CMP NO.26254 OF 2023 IN OSA NO.95 OF 2022
OSA NO.61 OF 2022
L.Chandrakumar ... Appellant
Vs.
1.S.Prema
2.L.Logammal ... Respondents
PRAYER: Appeal filed under Order XXXVI Rule 1 of Madras High Court
Original Side Rules read with Clause 15 of the Letters Patent 1865,
praying to set aside the judgment and decree dated 31.01.2022 passed by
this Court in C.S.No.677 of 2010.
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OSA NOS.61 AND 95 OF 2022
For Appellant : Mr.V.C.Janardhanan
For Respondent-1 : Mr.PL.Narayanan
for Mr.V.Praveen Kumar
For Respondent-2 : No appearance
OSA NO.95 OF 2022
1.Ramachandran
2.Mageswari
3.Kalidass
4.Murugan
5.Yasugy
6.Amuthavalli
7.Jayalatchumy
8.Kalaivani
9.Thanam ... Appellants
Vs.
1.Beeman
2.Chandrasekaran
3.Dr.Jawahar Nesan
4.S.Prema ... Respondents
PRAYER: Appeal filed under Order XXXVI Rule 1 of Madras High Court
Original Side Rules read with Clause 15 of the Letters Patent 1865,
praying to set aside the judgment and decree dated 31.01.2022 passed by
this Court in C.S.No.852 of 2009.
For Appellants : Mr.V.C.Janardhanan
For Respondents : Mr.PL.Narayanan
3 and 4 Senior Counsel
for Mr.Praveen Kumar
COMMON JUDGMENTR.S
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OSA NOS.61 AND 95 OF 2022
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
It is reported that the second respondent in OSA No.95 of
2002 is no more. It is seen from the records that the second respondent in
OSA No.95 of 2022 who figured as the second defendant in C.S.No.852 of
2009 remained exparte before the Trial Court. Hence, exercising power
under Order XXII Rule 4 Sub-rule 4 of Code of Civil Procedure, the
appellant is exempt from the necessity of substituting the legal
representatives of the second respondent in OSA No.95 of 2022.
2.Challenge in these appeals is to the common judgment of the
Hon'ble Single Judge dated 31.01.2022 rendered in C.S.No.677 of 2010
and C.S.No.852 of 2009.
3.The facts that are necessary for disposal of these appeals are
as follows:
3.1.The first suit namely C.S.No.852 of 2009 is a suit for
declaration of the plaintiffs title to the suit schedule property; declaration
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OSA NOS.61 AND 95 OF 2022
that the power of attorney dated 24.05.2006 executed by the first
defendant (father of the plaintiffs) in favour of the second and third
defendants as null and void; for a declaration that the sale deed dated
05.01.2007 executed by the defendants 2 and 3 as Power Agents of the
first defendant as null and void and not binding on the plaintiffs; and for a
consequential permanent injunction restraining the defendants from
interfering with the possession of the plaintiffs.
3.2.The case of the plaintiffs in the said suit viz., C.S.No.852
of 2009 was that the suit property was purchased by the first defendant in
the said suit in his name from and out of the moneys that were contributed
by the first plaintiff in the said suit and therefore, the property belongs to
the plaintiffs and the first defendant held it only for the benefit of the
plaintiffs.
3.3.Even during the pendency of the first suit in C.S.No.852
of 2009, the fourth defendant in C.S.No.852 of 2009 who had purchased
the property from the Power Agent of the first defendant in the said suit
had filed a suit for recovery of possession in C.S.No.677 of 2010 based on
the Sale Deed which was impugned in C.S.No.852 of 2009.
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OSA NOS.61 AND 95 OF 2022
3.4.Both the suits were tried together. As many as six issues
were framed in C.S.No.852 of 2009, while five issues were framed in
C.S.No.677 of 2010 and they are as follows:
C.S.No.852 of 2009 C.S.No.677 of 2010
1 Whether the plaintiffs are entitled for a Whether the plaintiff is entitled to get
declaration that the plaintiffs are the real recovery of possession of the suit
owners of the suit schedule property? schedule property from the defendants?
2 Whether the suit schedule property in Whether the suit is hit by Order II Rule
C.S.No.852 of 2009 is the self-acquired 2 of CPC?
property of the 1st defendant?
3 Whether the plaintiffs are entitled for Whether there is jural relationship of
declaration declaring the power of landlord and tenant between the
attorney dated 24.05.2006 executed by the plaintiff and defendants?
first defendant to and in favour of second
and third defendants as null and void?
4 Whether the plaintiffs are entitled for a As to what relief the plaintiff is entitled
declaration declaring the sale deed dated to?
05.01.2007 executed by the second and
third defendants in favour of the fourth
defendant registered as Document No.30
of 2007 as null and void?
5 Whether the plaintiffs are entitled for a
permanent injunction restraining the
defendants from in any way encumbering
or alienating the suit schedule property?
6 Whether the suit is hit by Order III Rule 2
CPC in view of the Power of Attorney
dated 03.3.2009 is admissible in evidence?
3.5.At trial, evidence was taken in C.S.No.852 of 2009. While
two witnesses were examined on the side of the plaintiffs as P.W.1 and
P.W.2, two witnesses were examined on the side of the defendants as
D.W.1 and D.W.2. Ex-P.1 to Ex-P.9 were marked on the side of the
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OSA NOS.61 AND 95 OF 2022
plaintiffs and Ex-D.1 to Ex-D.24 were marked on the side of the
defendants.
3.6.The Hon'ble Single Judge after extracting the pleadings,
issues and the arguments of the learned counsel for the parties, disposed of
the suits on 31.01.2022 in the following manner:
“Discussion and Decision
All the Issues in C.S.852 of 2009:
10.1 There is considerable merit in the argument of the
counsel for the fourth defendant in C.S.No.852 of 2009 (the
plaintiff in the connected C.S.677 of 2010). When the first
plaintiff in C.S.No.852 of 2009 contends that the first defendant
had not contributed the funds for the purchase of the suit
property under Ext.P8, and that he had advanced the sum, the
said fact has to be proved only by the first plaintiff in
C.S.No.852 of 2009. Secondly, here P.W.1 admits in her
evidence that she was barely 13 or 14 years and she had
conceded to her ignorance about the facts on the basis of which
the suit is laid. This apart there is utter silence as to what
happened to the sale consideration which the fourth defendant
had paid the power of attorney of the first defendant. The
plaintiffs who challenge the Power of Attorney executed by the
first defendant and the sale did not whisper anything about it.
When the core fact are not proved, the suit travels towards its
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OSA NOS.61 AND 95 OF 2022
dismissal.
All the issues in C.S.677 of 2010
11.1 Turning to the second part, inasmuch as the
defendants case was that the fourth defendant had succeeded in
C.S.No.852 of 2009, it necessarily should follow that the second
suit in C.S.No.677 of 2010 that she has laid has to be decided
in her favour. After all, the defendants in that suit have claimed
right to occupy only as a permissive owner. In other words, they
are mere licencees and they occupy the property only at the
wish of the licencor.
11.2 As to the plea of the defendants that the present suit
is hit by Order II Rule 2 CPC is concerned, the said plea is
misconceived since the plaintiff has withdrawn the earlier suit
to file a comprehensive suit for recovery of possession. It is
appropriate more so in the context of the fact that the first
defendant in C.S.No.677 of 2010 had successfully filed
O.S.No.2104 of 2007 earlier for bare injunction that her
possession shall not be disturbed except by due process of law
vide Ext.D18.
12. Conclusion :
A) C.S.No.852 of 2009 is dismissed with costs.
B) C.S.No.677 of 2010 is decreed and the defendants
are directed to delivery vacant possession of the 'B' schedule
property to the plaintiff within 30 days from today.”
4.Mr.V.C.Janardhanan, learned counsel appearing for the
appellants would contend that the judgment does not meet the
requirements of Order XX Rule 5 of Code of Civil Procedure inasmuch as
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OSA NOS.61 AND 95 OF 2022
it does not answer all the issues framed in the suits.
5.Mr.PL.Narayanan, learned Senior Counsel appearing for the
respondents is in an unenviable situation inasmuch as he is unable to
sustain the judgment of the Trial Court and is forced to concede that the
learned counsel for the appellant is right in his contention based on Order
XX Rule 5 of Code of Civil Procedure.
6.Mr.PL.Narayanan, learned Senior Counsel would however
submit that if a judgment is set aside on the ground that it does not comply
with the provisions of Order XX Rule 5 of Code of Civil Procedure, the
parties would not be entitled to lead further evidence and a decision has to
be arrived at on the basis of the evidence that is already available on
record.
7.This contention is taken by the learned counsel that the
issue relating to bar under Order II Rule 2 in mind, since the said issue has
been disposed of by the Hon'ble Judge on the ground that the pleadings in
earlier suit were not made part of the records in the subsequent suit.
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OSA NOS.61 AND 95 OF 2022
Mr.PL.Narayanan, would also rely on the judgment of the Hon'ble
Supreme Court in JAYANTILAL CHIMANLAL PATEL VS. VADILAL
PURUSHOTTAMDAS PATEL [2017 (13) SCC 409] to contend that while
remanding the matter for a decision on the issue relating to Order II Rule 2
of Code of Civil Procedure, the Hon'ble Supreme Court has held that the
High Court will dispose of the matter within the parameters of the
revisional jurisdiction and it has specifically prohibited any additional
evidence under Order 41 Rule 27 of the Code of Civil Procedure.
8.Mr.V.C.Janardhanan, learned counsel for the appellants
would submit that the remand in Jayantilal's case (cited supra) was to the
High Court exercising its revisional jurisdiction and therefore, the Hon'ble
Supreme Court held that additional evidence cannot be permitted. He
would draw our attention to the more recent judgment of the Hon'ble
Supreme Court in VURIMI PULLARAO VS. VEMARI VYANKATA
RADHARANI [2020 (14) SCC 110] where the Hon'ble Supreme Court
held that if the parties were aware of the pleadings in the earlier
proceedings, the non-production of the pleadings would not be fatal for a
decision for the issue under Order II Rule 2 of Code of Civil Procedure.
9.Be that as it may, we find that the appellants had in fact
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OSA NOS.61 AND 95 OF 2022
filed applications under Order 41 Rule 27 seeking leave to produce the
plaint in the earlier suit. Now that we are disposing of these appeals on the
ground that the impugned judgment is not in compliance with Order II
Rule 2 of Code of Civil Procedure and we are not considering those
applications.
10.In this factual backdrop, we find that it would not be in the
interest of justice to prohibit the appellants from producing the plaint
before the Trial Court. We therefore, allow these appeals, set side the
judgment and decree of the Hon'ble Single Judge and remit the matter to
the Hon'ble Single Judge for disposal in accordance with law. We make it
clear that the parties shall not be entitled to produce any further evidence
except the evidence that is sought to be placed before us by way of
Application No.4699 of 2024 in OSA No.61 of 2022. Since we are setting
aside the judgment and decree and remitted the matter for fresh disposal
within a period of four months from the date of receipt of a copy of this
order, we direct the court fee paid on the appeals to be refunded to the
appellants in terms of Section 67 of The Tamil Nadu Court Fees and Suits
Valuation Act, 1965. The parties are directed to bear their own costs in
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OSA NOS.61 AND 95 OF 2022
these appeals. It will be open to the appellants to file an application in
respect of the documents and the Hon'ble Single Judge will decide it in
accordance with law without being influenced by any of the observations
made above. Consequently, connected civil miscellaneous petitions are
closed.
[R.S.M., J.] [R.S.V., J.]
14.03.2024
Index : No
Internet : Yes
Neutral Citation : No
Speaking Order
TK
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OSA NOS.61 AND 95 OF 2022
R.SUBRAMANIAN, J.
AND R.SAKTHIVEL, J.
TK OSA NOS.61 AND 95 OF 2022 14.03.2024 12/12 https://www.mhc.tn.gov.in/judis