Madras High Court
Ranjith Ammal vs Sivasubramanian on 18 February, 2010
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/02/2010 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL (MD)No.1436 of 1995 AND CIVIL MISCELLANEOUS PETITION No.15258 of 1995 Ranjith Ammal .. Appellant/Defendant Vs Sivasubramanian .. Respondent/Defendant Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 08.09.1995 passed in Appeal Suit No.117 of 1991 by the Sub Court, Tuticorin reversing the Judgment and decree dated 21.06.1990 passed in Original Suit No.710 of 1987 by the Principal District Munsif Court, Tuticorin. !For Appellant ... Mr.A.R.M.Ramesh. ^For Respondent ... Mr.R.Vijayakumar :JUDGMENT
Challenge in this second appeal is to the Judgment and decree dated 08.09.1995 passed in Appeal Suit No.117 of 1991 by the Sub Court, Tuticorin.
2. The respondent herein as plaintiff has instituted Original Suit No.710 of 1997 on the file of the Principal District Munsif Court, Tuticorin for the reliefs of declaration and perpetual injunction, wherein the present appellant has been shown as defendant.
3. It is averred in the plaint that the plaintiff has purchased the suit property under a registered sale deed dated 24.02.1983 from one Paul Thangaraj and he purchased the same under a registered sale deed dated 10.10.1962 and his predecessor-in-title has purchased the same under a registered sale deed dated 19.11.1952. The Government has granted patta for the suit property. From the date of purchase, the plaintiff has been in possession and enjoyment of the same. The defendant is the eastern owner of the property and since she tried to disturb the peaceful possession and enjoyment of the plaintiff over the suit property by way of denying his title, the present suit has been instituted for the reliefs sought for in the plaint.
4. In the written statement filed on the side of the defendant, it is averred that with regard to the suit property already Original Suit No.16 of 1983 has been instituted by the alleged predecessor-in-title of the plaintiff and the same has been dismissed and therefore the present is barred under law. It is false to say that the predecessors-in-title of the plaintiff have purchased the suit property and it is also equally false to say that the plaintiff has purchased the same. The defendant is the owner of the suit property and she is in possession and enjoyment of the same and there is no merit in the suit and the same deserves dismissal.
5. On the basis of the claims and counterclaims made on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.117 of 1991 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and consequently decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the defendant as appellant.
7. At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration:
(a) When an earlier suit is dismissed for default, whether the transferee of the original plaintiff also is barred from bringing a fresh suit as per the Order IX Rule 9 C.P.C.?
(b) When the transferee pendente lite can file a fresh suit after the dismissal of the earlier suit?
8. The learned counsel appearing for the appellant/defendant has attacked the Judgment and decree passed by the first appellate Court mainly on the following grounds:
(a) In respect of the present suit property already Original Suit No.16 of 1983 has been instituted by the alleged predecessor-in-title of the plaintiff for the reliefs of declaration and perpetual injunction and the same has been dismissed for default and subsequently the present suit has been filed by the plaintiff and therefore the present suit is barred under the provisions mentioned in Order IX, Rule 9 of the Code of Civil Procedure, 1908.
(b) Neither the plaintiff nor his alleged predecessor-in-title has had any title over the suit property and therefore the Judgment and decree passed by the first appellate Court are liable to be interfered with.
9. The learned counsel appearing for the respondent/plaintiff has also equally contended that even though the predecessor-in-title of the plaintiff has instituted Original Suit No.16 of 1983 and the same has been dismissed for default. The cause of action in the present suit is entirely different and therefore the present suit is not hit by the provisions of Order IX, Rule 9 of the Code of Civil Procedure, 1908 and the present suit is legally maintainable and the trial Court without considering the nature of the present suit has erroneously dismissed the suit. But the first appellate Court after analysing the crux of the matter, which involves in the present suit, has rightly decreed the suit and therefore the Judgment and decree passed by the first appellate Court are perfectly correct and the same do not warrant interference.
10. On the basis of the rival submissions made by either counsel, the Court has to look into the first and foremost substantial question of law framed in the present second appeal.
11. The first and foremost substantial question of law framed in the present second appeal is as to whether the present suit is barred in view of the dismissal of the earlier suit filed in Original Suit No.16 of 1983 as per the provision of Order IX, Rule 9 of the Code of Civil Procedure, 1908.
12. Order IX, Rule 9 of the Code of Civil Procedure, 1908 reads as follows:
"Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party".
13. From the close reading of the provision of Order IX, Rule 9 of the Code of Civil Procedure, 1908 it is made clear that if any suit is dismissed under Order IX, Rule 8, the concerned plaintiff is precluded from bringing a fresh suit on the same cause of action.
14. The Judgment passed in Original Suit No.16 of 1983 has been marked as Ex.B1. It is an admitted fact that the predecessor-in-title of the plaintiff has filed Original Suit No.16 of 1983 for the reliefs of declaration and perpetual injunction against the present defendant. In the plaint filed in Original Suit No.16 of 1983, the same set of facts have been averred as averred in the present plaint. Original Suit No.16 of 1983 has been dismissed for default under Order IX, Rule 8 of the Civil Procedure Code, 1908. It has already been pointed that if any dismissal is made under Order IX, Rule 8 of the Code of Civil Procedure, 1908, a fresh suit on the same cause of action is barred. In the present suit, the same set of reliefs have been sought for in the plaint as claimed in Original Suit No.16 of 1983. Further the present plaintiff has also traced out his title as his predecessor-in-title has traced out his title to the suit property in Original Suit No.16 of 1983. Under the said circumstances, there is no incertitude in coming to a conclusion that in both the suits cause of action is one and the same. Simply the date of cause of action is different in both the suits, the Court cannot come to a conclusion that the present suit is not barred under Order IX, Rule 9 of the Code of Civil Procedure, 1908.
15. The learned counsel appearing for the respondent/plaintiff has also made a feckless attempt by arguing that the present suit has been instituted by the plaintiff only after purchasing the suit property and therefore the bar created under Order IX, Rule 9 of the Code of Civil Procedure, 1908 is not applicable to the present case.
16. The learned counsel appearing for the appellant/defendant has befittingly drawn the attention of this court to the decision of the Hon'ble Apex Court in Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd and others reported in AIR 1965 Supreme Court 295, wherein the Hon'ble Apex Court has held as follows:
"Beyond the absence in Order IX Rule 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant the argument, that Rule IX which speaks of the plaintiff being precluded from bringing a fresh suit creates merely a personal bar against the plaintiff in the first suit. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his right to that property and confer on the transferee a right which he was precluded by law from asserting. The word plaintiff in the rule should therefore in order that the bar may be effective include his assigns and legal representatives".
17. From the close perusal of the decision mentioned supra, it is needless to say that Order IX, Rule 9 of the Code of Civil Procedure, 1908 can also be invoked against the legal representatives or assignees of the plaintiff, who filed earlier suit.
18. In the instant case, the present plaintiff has claimed title to the suit property only through the plaintiff found in Original Suit No.16 of 1983. Therefore as per the dictum passed by the Hon'ble Apex Court in Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd and others reported in AIR 1965 Supreme Court 295, it is needless to say that the entire arguments advanced by the learned counsel appearing for the respondent/plaintiff is not legally tenable.
19. It has already been stated in many places that the present suit is clearly barred under Order IX, Rule 9 of the Code of Civil Procedure, 1908 in view of the dismissal of the suit filed in Original Suit No.16 of 1983 under Order IX, Rule 8 of the said Code. Therefore the first substantial question of law formulated in the present second appeal is decided in favour of the appellant/defendant. Since the first substantial question of law is decided in favour of the appellant/defendant, the second substantial question of law formulated in the present appeal need not be decided.
20. The trial Court after considering the legal point involved in the present suit has rightly dismissed the suit. But the first appellate Court has erroneously come to a conclusion that the present suit is not barred under Order IX, Rule 9 of the Code of Civil Procedure, 1908 in view of the dismissal of the suit filed in Original Suit No.16 of 1983 under Order IX, Rule 8 of the said Code. In view of the foregoing enunciation of both the factual and legal aspects, the conclusion arrived at by the first appellate court is erroneous and the same is liable to be set aside.
21. In fine, this second appeal is allowed without costs. The Judgment and decree passed in Appeal Suit No.117 of 1991 by the Sub Court, Tuticorin are set aside and the Judgment and decree passed in Original Suit No.710 of 1987 by the Principal District Munsif Court, Tuticorin are restored. Consequently, connected Miscellaneous Petition is closed.
smn To
1.The Subordinate Judge, Tuticorin.
2.The Principal District Munsif, Tuticorin.