Madras High Court
Unknown vs M.M.Naina Exports (P) Ltd on 27 September, 2012
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2012
CORAM
THE HONOURABLE Mrs. JUSTICE S.VIMALA
Second Appeal No.1266 of 2001
K.M.Mohamed Noohu Sahib & Co.,
Rep. By its Proprietor,
Mr. Allapitchai (deceased)
Mohammed Noohu
(Mohammed Noohu brought
on record as
LR of the deceased
Allapitchai (proprietor)
vide order of court,
dated 03.07.2012
made in
CMP Nos.1632 & 1633 of 2009
in
Second Appeal No.1266 of 2001) ... Appellant / plaintiff
Vs.
1. M.M.Naina Exports (P) Ltd.,
Rep. By its Director
Mr. J.A.Tajudeen .. R-1 / third party / Appellant before the first appellate court
2. Kaja Miyan Wakf Estate,
Rep. By its Executive,
Muthavalli,
Mr. K.A.Khalique .. second respondent
Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the decree and judgment passed in A.S.No.108 of 1997 on 22.06.2001 by the II Additional City Civil Court by confirming the judgment and decree in O.S.No.10233 of 1992, dated 10.06.1996 on the file of the IV Assistant City Civil Court, Chennai.
For Appellant : Mr. G.Veerapathiran
For Respondents : Mr. V.Lakshminarayanan, for
Mr. V.Raghavachari, for R-1
No Appearance, for R-2
- - -
J U D G M E N T
"The real problem for a litigant starts only after obtaining a decree" is the popular saying which highlights perennial problem for a litigant. Here is the case, where the litigation continuous even after delivery having been recorded on 11.11.1992 and execution petition having been terminated on the same day.
2. Re-litigation, has been held to be an abuse of process of the court and contrary to justice and public policy. The sacred place court, i.e., the court the place which ensures life, liberty, equality and fraternity must be used for a genuine and rightful cause. In case of misuse/abuse/improper use, the court has to throw out the case summarily, so that people should not entertain the belief that court is a place to wreck vengeance or a place to make people to come to terms. This case is an example where the process of the court has been abused.
3. The plaintiff / first respondent / appellant, who is K.M.Mohamed Noohu Sahib and Co., represented by its Proprietor, Mr.Allapitchai, respectively, before the IV Assistant City Civil Court at Madras, in O.S.No.10233 of 1992 / II Additional City Civil Court at Madras, in A.S.No.108 of 1997 and appellant before this Court in S.A.No.1266 of 2001, is the tenant of the suit property.
4. The first respondent herein, M.M.Naina Exports (P) Ltd., rep. by its Director, Mr.J.A.Tajudeen, who was not a party in the suit and the third party to the proceeding is the appellant before the first appellate court as the purchaser of the suit property, pending litigation.
5. The second respondent herein, Kaja Miyan Wakf Estate, rep. by its Executive Muthavalli, Mr.K.A.Khalique, is the defendant before the trial court and the second respondent before the first appellate court, is the original owner / the landlord of the suit property.
6. The parties are referred to as per the nomenclature assigned to them in the trial court. The first respondent herein, who was not a party in the suit, is referred to as third party.
7. The suit property is situated at Door No.110, Linghi Chetty Street, Chennai, covering an extent of 2276 sq.ft., out of which built up portion was 776 sq.ft., and the rest was the vacant site. The suit property is the portion of the building in the downstairs of the premises at No.110, Linghi Chetty Street, Chennai.
8. The second respondent was the owner of the entire extent of the suit property. The plaintiff's father became a tenant under the defendant and he was permitted to put up a superstructure over 1500 sq.ft., Due to dispute between the plaintiff and the defendant, the landlord / defendant filed Eviction Proceedings in RCOP No.5349 of 1982 on the file of Rent Controller, Chennai, in which eviction was ordered on 18.04.1984. The Rent Control Appeal in RCA No.833 of 1985 filed by the plaintiff was dismissed on 26.09.1986 and CRP No.987 of 1985 filed by the defendant was dismissed on 14.08.1991. Finally, Special Leave Petition was also filed, which also came to be dismissed. Thereafter, the defendant filed E.P.No.649 of 1992 for delivery of the suit property and took delivery of the same.
9. The Execution Proceedings were challenged on the ground that, (a)delivery was taken without bringing the present decree holder on record and (b)without serving notice to the tenant / plaintiff.
10. When the suit was filed against one Kaja Miyan Wakf Estate, Represented by its Executive Muthavalli, K.A.Khalique, as the sole defendant, the defendant was set exparte and therefore an exparte decree came to be passed on 10.06.1996.
10.1. A perusal of the judgment in O.S.No.10233 of 1992 would go to show that it cannot be termed as a judgment in real sense of the word, as it is devoid of reasoning. Reason is the soul for the judgment. Therefore, when the judgment is rendered without giving reasons, it is not the judgment at all. Just because the defendant remained exparte, the court is not expected to decree the suit as prayed for. The court is expected to critically examine the pleadings, documents and evidence and to deliver the judgment on merits.
11. The third party, who is the first respondent herein, filed an application for leave to appeal in CMP No.623 of 1996 and the leave was granted on the ground that the appellant is the aggrieved person. In the appeal, the following points were framed for consideration:-
1. Whether the appeal by the third party is maintainable?
2. Whether the suit as framed by the plaintiff is maintainable?
3. Whether the judgment and decree of the trial court have to be set-aside?
12. So far as the first issue is concerned, the contention was that the appellant is not an aggrieved person and even assuming that the appellant is an aggrieved person, still as on the date of deciding the appeal, the appellant has neither legal right nor moral right, as he sold the property to one Sabeena Thameem, therefore the leave originally granted to file the appeal, even though he was a third party, has to be revoked.
12.1. The contention of the third party was that, (a) Tamil Nadu Wakf Board divested the property of its Wakf character and declared the properties to be that of beneficiaries of the original Wakf and that in the family partition, in the family of the beneficiaries, the suit properties fell to the share of Moshina Beevi and Hussaina Beevi, (b) On the date of decree, i.e., on 10.06.1996, Moshina Beevi and Hussaina Beevi are the real owners of the properties and not the Wakf Board and (c) he is a purchaser from the lawful owner viz., Moshina Beevi and Hussaina Beevi (Sale deed, dated 29.03.1994) 12.2. Whether this contention is acceptable is the issue to be considered. Whether a person who sell the property during the pendency of the litigation can be said to be an aggrieved person so as to enable him to continue the case is the issue decided in AIR 1976 SC 578 (Jasbhai Motibhai Desai v. Roshan Kumar Hazi Bashir Amhed and Ors.), wherein it has been held as follows:-
"... The expression "aggrieved person" denotes an elastic and to an extent an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent` of the statute of which contravention is alleged the specific circumstances of the case, the nature and extent of the prejudice or injury suffered by him. English courts have sometimes put a restricted and sometimes a wide construction on the expression, "aggrieved person".
12.3. Viewed in this context, the appellant in A.S.No.108 of 1997 is an aggrieved person. Even otherwise, though he has parted with the property by selling the same, still he could be bound by the covenant in the sale deed and he would be bound to indemnify the vendee from the rival claims over the title or possession. The decision reported in 1989 MLJ 193 (Syed Shafee and another v. Asmath Basha and another) relied on by the other side has been distinguished by the first appellate court. Therefore, the finding that even though the appellant had sold the property during the pendency of the appeal, still he is entitled to maintain the appeal deserves to be confirmed.
13. So far as the second issue is concerned, the main contention was that the plaintiff should have availed the remedy provided under Section 47 CPC and other provisions of Order 21 CPC and should not have approached the civil court. It was held that the remedy of the tenant was only to have recourse to Section 47 CPC and the suit was not maintainable. It was also held that the suit is bad for non-joinder of necessary parties.
14. So far as the third issue is concerned, based upon the findings arrived at on issue Nos.1 and 2, it was held that the suit was not sustainable and the judgment is liable to be set-aside. In CMP No.486 of 2001 documents filed by the appellant were permitted to be marked as Exs.B-1 to B-11, which are the proceedings relating to RCOP, RCA, proceedings of the Wakf Board, copy of the sale deed executed by Moshina Beevi and Hussaina Beevi in favour of M.M.Naina Exports (P) Ltd., and finally the copy of the sale deed executed by M.M.Naina Exports (P) Ltd., in favour of Safeena Thammem. Appeal in A.S.No.108 of 1997 thus came to be allowed and thus the decree and judgment of the trial court in O.S.No.10233 of 1992 was set-aside.
15. Aggrieved over the judgment and decree passed in A.S.No.108 of 1997, reversing the exparte decree passed in O.S.No.10233 of 1992 leading to dismissal of the suit, is under challenge in this second appeal by the tenant.
16. The second appeal was admitted on the following substantial questions of law and arguments were advanced only on issue Nos.1, 2 and 4:-
"1. Whether first respondent is an aggrieved person and has any right to agitate the question, the decree passed of the trial court dated 10/6/1996 by reason of the alienation of the suit property. On 4/4/1997 which the lower court was not called upon to decide but yet the lower Appellate Court simply without justification allowed filing of additional evidence?
2. Whether the lower appellate court without taking note the coming into existence Ex B 11, wherein the third party, first respondent, inspite of the appeal was preferred in October 1996 is entitled to continue the appeal especially not taken care to mention the lispending?
3. Whether the lower Appellate Court has any jurisdiction to formulate points for consideration without any plea either in Memorandum of Grounds or any written statement?
4. Whether the lower Appellate court findings that the suit was barred under Section 47 CPC will apply to the facts and circumstances of the case?"
17. In order to appreciate the contentions raised in the second appeal, the following dates and events are essential:-
------------------------------------------------------------
Sl. Date Events
No.
------------------------------------------------------------
1 From 1952 The appellant in the second appeal
became the tenant of the vacant land
measuring 1 ground 163 sq.ft.,
------------------------------------------------------------
2 24.01.1982 Petition for Eviction filed by Kaja Mian
Wakf Estate, Represented by its
Executive Muthawalli, K.A.Jaleel.
------------------------------------------------------------
3 18.04.1984 Petition allowed by the 11th Judge Court
of Small Causes
------------------------------------------------------------
4 21.06.1986 Tamil Nadu Wakf divested the character
of the Wakf of the suit property by an
order dated 21.06.1986 and the said
property was allotted to (i) Moshina
Beevi and (ii) Hussaina Beevi.
------------------------------------------------------------
5 '12.02.1992 E.P.No.649 of 1992 filed by Kaja Mian
Wakf Estate, Rep. By its Executive
Muthawalli, K.A.Jaleel. But, the
verification was signed by one
K.A.Khalique.
------------------------------------------------------------
6 '11.11.1992 Delivery ordered and possession taken
and delivery recorded in E.P.No.649 of
1992 and on the same day E.P. Closed.
------------------------------------------------------------
7 16.11.1992 Plaint filed by the Appellant herein in
O.S.No.10233/1992 K.M.Mohamed Noohu
Sahib & Co., Rep. By its proprietor -
Alla Pitchai for the following relief:-
a) directing the defendant to deliver
possession of the entire building of
premises No.110, Linghi Chetty Street,
Chennai 600 001, described in the
schedule taken by illegal manner in
E.P.649/1992 in R.C.O.P.5349 of 1982 on
the file of 12th Judge, Small Causes
Court, Madras, without bringing the
present Muthawalli on record by the
defendant.
b) For a permanent injunction
restraining the defendant, his agents,
servants from demolishing the tenancy
portion No.110, Linghi Chetty Street,
Chennai 600 001 described in the
schedule.
------------------------------------------------------------
8 28.03.1994 The said Monisha Beevi and Hussaina
Beevi sold suit property to the third
party / appellant, by name, M.M.Naina
Exports Pvt. Ltd.,
------------------------------------------------------------
9 10.06.1996 The above suit 10233 of 1992 was decreed
for redelivery.
------------------------------------------------------------
10 13.11.1996 A.S.No.108 of 1997 filed by one Third
party / appellant by name M.N.Naina
Exports P. Ltd., Rep. By its Director
J.A.Tajudeen, purchaser from Monisha
Beevi and Hussaina Beevi.
------------------------------------------------------------
11 04.04.1997 The said M.M.Naina Exports Pvt. Ltd.,
again sold the suit property to Safena
Thameem. Therefore, as on today the
appellant / third party in the first
appeal and the first respondent in the
second appeal is not the owner of the
suit property.
------------------------------------------------------------
12 22.06.2001 The above third party appeal A.S.No.108
of 1997 was allowed and lower court
decree set-aside.
------------------------------------------------------------
18. The first contention of the learned counsel for the appellant is that the petition for eviction was filed by the Kaja Miyan Wakf Estate, Represented by its Executive Muthavalli, K.A.Khalique, but E.P.No.649 of 1992, even though filed by Executive Muthavalli, K.A.Jaleel, it was signed by one K.A.Khalique and therefore the execution proceedings are invalid.
18.1. This contention cannot be accepted for the simple reason that the landlord is not a private individual but it is a Wakf Estate, which is a Representative Body. When the Wakf Estate is represented by Muthavalli, naturally by efflux of time, the Muthavallis are bound to change and when the execution petition was filed, the person-in-charge as Muthavalli, at that point of time, might have signed it. Therefore the contention that Execution Petition was filed by somebody else other than the decree holder is not correct. It is apparently incorrect even on the face of the record.
19. The submission of the learned counsel for the purchaser / first respondent is on three folds:-
(i) The property has been sold only on 28.03.1994 by Moshina Beevi and Hussaina Beevi. The property has been conveyed to them on 21.06.1986, not through sale or any other mode of transfer, in favour of Moshina Beevi and Hussaina Beevi, but by divesting the Wakf character of the property in favour of the beneficiaries.
(ii) The second contention is that even assuming that the execution petition ought to have been filed only by the devolutionary of the interest namely Moshina Beevi and Hussaina Beevi and not by the Wakf Estate, this contention ought to have been raised by way of petition under Section 47 CPC and not by way of separate suit.
(iii) The third contention is that the third party appellant had already sold the property to Safena Thameem, therefore as on today as the third party appellant has no right in the property, the second appeal is not maintainable.
20. The learned counsel for the first respondent contended that, (i) the filing of the second appeal is an abuse of process of court; (ii) the court has got power to stop such proceedings summarily; (iii) re-litigation should be discouraged; (iv) the execution, discharge, satisfaction relating to decree ought to be raised only before the executing court and not by way of separate suit. Mainly contending that right from filing of the suit up to the second appeal amounts to playing fraud upon the court and that the plaintiff must be thrown out summarily the following decisions are relied upon:-
Fraud:-
(i) AIR 1994 SUPREME COURT 853 (S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. And Others). In this decision, it has been held as follows:-
"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
....
7. ... The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
(ii) AIR 1992 KARNATAKA 208 (Gat Nagamma, W/o. Gat Thimmayya v. Hardar Bahubali and Others). In this decision, it has been held as follows:-
"5.Under what circumstances an objection as to the validity of the decree could be raised for the first time in execution, has been made clear in Vasudcv Dhanjibhai Modi v. Rajabhai Abdul Rehman, , by observing thus (at pages 1476 & 1477) :
"When a decree which is a nullity, for instance where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to iis validity may be raised in an execution proceeding if the objection appears on the face of the record : where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
So, an objection to a decree being without jurisdiction or nullity could be raised in the execution proceeding for the first time and if raised the executing Court which otherwise cannot go behind the decree is competent to entertain such an objection when the objection appears on the face of the record that the decree is passed without jurisdiction."
(iii) AIR 1998 SC 1297 (K.K.Modi v. K.N.Modi & Ors.). In this decision, it has been held as follows:-
"Under Order 6 Rule 16, the Court may, at any state of he proceeding, order to b e struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure. (15th Edition, Volume II, page 1179 note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of he process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of he process of Court on the basis of what is stated in the plaint.
The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court" thus:
"This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation........ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
One of the examples cited as an abuse of the process of court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which h as already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and t he court from being wasted. Undoubtedly, it is a matter of courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding. In the case of Greenhalgh v. Mallard [19147 (2) AER 255] the e-court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court, held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexation and an abuse of the process of court."
(iV) 1963 AIR 1279 : 1964 SCR (1) 270 (Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd., & Ors). In this decision, it has been held as follows:-
"O.6 R.4 of the Code of Civil Procedure provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading : if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particular, which give adequate notice -to the other side of the case intended to be set up.
In Bharat Dharma Syndicate v. Harish Chandra (1), the Privy Council emphasized the necessity of particulars in the following terms :
Their Lordships desire to call attention to the great difficulty which is occasioned both to persons charged with fraud or other improper conduct, and to the tribunal which are called upon to 'decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific details of those charges. In the present' case, the petitioner ought not to have been allowed to proceed with his petition and seek to prove fraud, unless and until he had, upon such terms as the Court thought fit to impose, amended his petition -by including therein full particulars of the allegations which he intended to prove, Such cases as the present will be much simplified if this practice is strictly observed and insisted upon by the Court, even if, as in the present case, no objection is taken on behalf of the parties who are interested in disproving the accusations."
20.1. With regard to the proposition that the suit is not maintainable and the remedy is to raise the issue only before the executing court, the following decision is relied upon:-
(i) AIR 1990 GAUHATI 90 (Smt. Bhabani Dasya and Others v. Tulsi Ram Keot (deceased by L.Rs.) and others). In this decision, it has been held as follows:-
"Civil Procedure Code (5 of 1908), S.47, O.21, R.90 and R.92 (3) Sale in execution of decree. Allegation of irregularity and fraud relating to sale. Remedy of judgment-debtor. Proper remedy is by application under O.21, R.90. Separate suit is barred under Section 47."
20.2. Contending that the appeal filed by a third party in the sense that who is not a party to the suit, the following decisions are relied upon, which are directly on the point:-
(i) (1953) 1 MLJ 410 (Smt. K.Ponnalagu Ammal v. The State of Madras, Represented by the Secretary to the Revenue Department, Madras and Others). In this decision, it has been held as follows:-
"16. Mr. Venkatasubramania Aiyar for the appellant relied on the decision in -- 'Province of Bombay v. W. I. Automobile Association', AIR 1949 Bom 141 (O) and the English practice on which that decision is based. In the Bombay case Chagla C. J. and Bhagwati J. held that a person not a party to a suit may prefer an appeal if he is affected by the order of the trial Court provided he obtained leave from the Court of appeal. The learned Chief Justice observed, as follows:
"The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of appeal; therefore-whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the court of appeal may in its discretion allow him to prefer an appeal."
....
19. Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. We can give as an instance the case where an Official Receiver impugnes an alienation by the insolvent and sues to set it aside and fails. If he does not appeal the decision of the trial Court would be final and binding not only on him but also on all the creditors. In such a case, if the Official Receiver does riot choose to file an appeal an aggrieved creditor should ordinarily be given leave to appeal if he shows a prima facie case against the order sought to be appealed. A more or less similar test has been applied to cases where a successful party has been allowed to file an appeal against an adverse finding. (Vide--'AIR 1924 Mad 689' (J) and -- '62 Cal 701 (K).)"
(ii) (2001) 6 Supreme Court Cases 534 (DHURANDHAR PRASAD SINGH V. JAI PRAKASH UNIVERSITY AND OTHERS). In this decision, it has been held as follows:-
"7. Under Rule 10, Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by their Lordships of the Judicial Committee in Moti Lal v. Karab-ud-Din [1898] 25 Cal.179, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum [1851-59] 7 M.I.A. 323, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings."
21. The decisions quoted above answers the contentions raised in the second appeal by the plaintiff / appellant. The execution, satisfaction and discharge relating to the decree ought to have been raised only before the Executing Court and not by way of separate suit. In fact, the trial court ought to have rejected the plaint. That has not been done.
22. Normally, winning persons cross the obstacles, overcome difficulties and thus have reasons to celebrate the success. Only in dieting where people win while losing. But it cannot be so in litigation. In litigation, the losing party feel the pleasure by compelling the otherside to be dragged to the court. The winning party, without being able to taste the fruits of the decree, is constrained to run after pillar to post by losing time, energy and money to get a finality to the litigation. Thus, the opposite of what is expected of the result of success is happening, because of the unscrupulous litigants wanting to misuse and abuse the process of the Court. This symptom is against the faith of the people, which they have reposed in the judicial system. Therefore, the factors, which help the party either to defeat or delay justice, needs research.
23. Re-litigation has been consistently discouraged by the courts and it should have been avoided. Termination of EP is not a ground to contend that suit is maintainable and that Section 47 application cannot be a remedy. This proposition is incorrect. The tenant ought to have raised those issues, which were raised in the suit only before the executing court as it relates to execution, discharge and satisfaction of the decree. The appeal has no merits.
24. In the result, the second appeal is dismissed with costs throughout. The decree for re-delivery passed in O.S.No.10233 of 1992 is set-aside. The decree passed in A.S.No.108 of 1997, setting aside the lower court decree is confirmed.
srk To
1. II Additional City Civil Court, Chennai
2. IV Assistant City Civil Court, Chennai