Madras High Court
Lakshmi vs Prasanna Mani on 14 March, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14 /3/2011
CORAM
THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN
C.R.P.No.4311 of 2010
1. Lakshmi
2. Sarojini
3. K. Rajasekar
4. Karthikeyan
5. K. Muralidharan
6. K. Sakundathala
7. Manikandan
8. Veni
9. R. Natarajan ... Petitioners
Vs
1. Prasanna Mani
2. RR Ever Green Developers
(India) Pvt Ltd
rep. By is Managing Director
Mr. Rajkumar
Tirupur Town 641 603. ... Respondents
Petition filed under Article 227 of the Constitution of India against the plaint in O.S.No.281 of 2010 on the file of the Principal District Judge, Coimbatore and to stick out the plaint.
For petitioners ... Mr.Muthukumaraswamy,
Senior Counsel
for Mr.K.Kalyanasundaram
For respondents ... Mr.S.Parthasarathy
Senior Counsel
for M/s. Sarvabhauman Associates
Mr.K.S.Kaviarasu for R.2.
- - - - -
O R D E R
The present Civil Revision Petition is filed to strike out the plaint in O.S.No.281 of 2010 on the file of the Principal District Judge, Coimbatore.
2. The first defendant in the said suit has filed the present Civil Revision Petition.
3. The short facts which requires for the disposal of the present Civil Revision Petition are set out here under:-
One Nachimuthu Chettiar was the owner of the joint family properties in S.F.No.514 at Sulur Village. He had a son and five daughters. One of the daughters, filed a suit in O.S.No.201 of 1982 against her father, brother Tirumalaisamy and other daughters. A preliminary decree was passed on 22/3/1982.
4. The first respondent herein who was the plaintiff in O.S.No.281 of 2010 which is sought to be struck of in this revision, has filed an application in I.A.No.399 of 1996 along with her purchasers to implead them as parties to the suit in O.S.No.201 of 1982. Her claim was that she is the wife of late Tirumalaisamy. The said application was dismissed by an order dated 13/6/1997 by the learned District Munsif, Coimbatore District. A revision has been filed against the said order in CRP (NPD) No.2146 of 1999 and the same was also dismissed on 31/7/2003. A Special Leave Petition filed against the order made in Civil Revision Petition has also seen the same fate. The said Special Leave Petition was dismissed on 2/12/2003. Thereafter, final decree was made in O.S.No.201 of 1982 on 23/12/2004.
5. Thereafter, the first respondent herein has filed the suit in O.S.No.281 of 2010 before the learned Principal District Judge, Coimbatore, for declaration that she is the wife of late Tirumalaisami; for partition and separate possession of the suit property; directing the defendants thereon to pay a sum of Rs.36,000/- or in alternative, past maintenance and future maintenance and charge on the property for the due payment of maintenance. The said suit is sought to be struck off by the first defendant in the said suit.
6. The learned Senior Counsel appearing for the petitioners contended that
(i). When already it has been decided in I.A.No.399 of 1996 that the first respondent/plaintiff has not established that she is the wife of late Tirumalaisami and the same was confirmed in the revision before this Court and also by the Apex Court, the first respondent herein cannot file a suit to declare herself as the wife of the said Tirumalaisami and for other consequential relief.
(ii). When the first respondent has already sold the property to the third parties, who have also filed an application to implead themselves as parties, cannot maintain the suit for partition and separate possession once again.
(iii). When already preliminary decree was passed in respect of the suit properties on 22/3/1982 and a final decree on 23/12/2004, the first respondent cannot once again relitigate the matter.
(iv). The suit filed by the first respondent is a clear abuse of process of law and hence the same is liable to be dismissed.
7. On the other hand, the learned Senior Counsel appearing for the first respondent and the learned Counsel appearing for the second respondent contended that
(i). The application in I.A.No.399 of 1996 filed by the first respondent along with her purchasers was dismissed on the ground that the first respondent has not established by some acceptable documents that she is the widow of Tirumalaisami and the same was confirmed by the High Court of Madras as well as the Honourable Apex Court. The said finding rendered in an application cannot operate as res judicata in the present suit.
(ii). The first respondent now armed with certain documents to establish that she is the widow of Tirumalaisami and hence the said suit has been filed by her.
(iii). The suit filed by the first respondent cannot be thrown out at the inception. It requires a detailed trial.
(iv). The question of limitation is a mixed question of fact and law which cannot be agitated by filing a revision to strike off the plaint.
8. On the basis of the above contentions, it has to be decided "whether the revision filed by the petitioners to strike off the plaint has to be acceded to or rejected."
9. It is not disputed that the property was originally owned by Nachimuthu Chettiar and he had a son by name Tirumalaisami and five daughters. One of the daughter by name Vasuki had filed the suit against her father, brother and sisters for partition and separate possession. The preliminary decree was passed on 22/3/1984. In the said suit, the said Tirumalaisami examined himself as D.W.1 and he deposed that he is not married.
10. The said N. Vasuki has filed an application in I.A.No.373 of 2004 for passing final decree. The final decree was passed on 23/12/2004. Thus, in the suit filed by one of the sister of Tirumalaisamy, she has obtained a decree of partition and separate possession and a final decree was passed in pursuant to the preliminary decree.
11. In the meanwhile, the first respondent after the demise of Tirumalaisami claiming to be his wife within ten days i.e., on 14/12/1999 (when Tirumalaisami died on 4/10/1991), sold her share to three persons. Later, an application was filed in I.A.No.399 of 1996 by her and the purchasers claiming that the first respondent is the legally wedded wife of Tirumalaisami and the same was dismissed on 13/6/1997. The English version of the partition portion of the order made thereunder is extracted hereunder.
"In the main case, Tirumalaisami has been examined as R.W.1. In his evidence, he deposed that, since, he was not married, he sent a notice to his sister, stating that they can divide and take the properties. On the strength of his statement, it is clear that the submission made by other side was true. But the second respondent has not produced any material documents to prove that he is the legal representative of Tirumalaisami and to prove his marriage. Hence, he is not entitled to the share in the property of Tirumalaisami. Hence the petitioners 2 to 5 are not entitled for the same."
12. Along with her alienees, the first respondent has filed the revision before this Court in C.R.P.No.2146 of 1999 and the same came to be dismissed on 31/7/2003. It would be useful to extract the order made thereunder.
"The first petitioner in this revision petition claims to be the wife of Thirumalaiswamy. In the affidavit filed in support of the application before the lower court, the first petitioner, viz., Prasannammal, except claiming that she is the wife of Thirumalaiswamy, has not whispered anything, that is to say as to when and where the marriage was celebrated. Alternatively, she is not claiming to be the wife or Thirumalaiswamy by her living with him for a very long period as husband and wife and the soceity also accepting them and treating them so. That apart, I.A. No.399/96, which was filed in 1991, was disposed of in 1997. It is not known as to why the 1st petitioner herein did not let in oral and documentary evidence to substantiate her claim. In these circumstances, the trial court is perfectly right in dismissing the said application.
4. There is yet another aspect which this Court is inclined to point out.
Before this Court, a petition is filed to receive some additional documents in evidence. Even in the affidavit filed in support of the said petition, no details have been furnished about the marriage. It is not known as to where the marriage was celebrated, whether in a house or in Temple, so also who are all attended the marriage.
The petitioners have filed two documents viz., a ration card and a legal heir certificate issued by the Tahsildar. As far as the ration card is concerned, it is a document which was well within the possession of the petitioners even at the time of filing of the I.A. No reason has been furnished for non-production of the ration card before the trial court. That apart, the ration card relates to the period from 1988 to 1992. certainly, that ration card will not help the petitioners.
The other document is a legal heir certificate issued by the Tahsildar, which is dated 9.11.1991. Even at the time of filing of the I.A. This document was very much available with the petitioners. The I.A. Was disposed of only in 1997. The reasons given by the learned counsel for non-production of this document before the trial court are totally unacceptable. That apart, on the basis of that document, it cannot be concluded that the 1st petitioners is the wife of the late Thirumalaiswamy."
Thereafter, Special Leave Petition was also dismissed by the Honourable Apex Court on 2/12/2003.
13. Thus, it has been categorically held in the above proceedings that the first respondent herein has not established that she is the widow of the said Tirumalaisami. After the orders made thereunder, which was extracted above, the first respondent has filed the suit in O.S.No.281 of 2010 on the file of the Principal District Judge, Coimbatore, claiming that she is the legally wedded wife of the said Tirumalaisami. The relief that have been claimed by her is extracted hereunder.
"The plaintiff therefore pray that the Honourable Court may be pleased to grant decree.
A(1) declaring a valid and subsisting marriage between the plaintiff and Thirumalaisamy on 24.05.1985.
A(2) grants a decree declaring the 7/12th share of plaintiff in the suit property and directing the diffision of the suit property as above into 12 shares and alloting 7 such shares to plaintiff.
B(1) grant a decree directing such of the defendants as are liable to pay Rs.36000/- in the alternative as past maintenances and at Rs.36000/- per annum as future maintenances from date of suit.
B(2) and grant a charge on the suit property for the due payment of maintenances.
c. grant costs of suit d. and grant such further or other reliefs and thus render justice."
14. The question that arises for consideration is that "Whether the first respondent herein could still maintain the suit after the orders referred to above was made?"
15. The learned Senior Counsel appearing for the first respondent relied on the decision in BHOGADI KANNABABU AND OTHERS Vs. VUGGINA PYDAMMA AND OTHERS reported in (2006) 3 M.L.J. 105 (S.C.). Paragraph 9 of the said judgment is usefully extracted hereunder.
"9. So far as the first submission of the learned counsel for the appellants is concerned, it is on record that the application for impleadment was allowed by the High Court which was affirmed by this Court by rejecting a Special Leave Petition, which relates to impleadment of respondent Nos. 2 and 3 in the revision case. In an application for impleadment under Order 1 Rule 10 of the Code of Civil Procedure, the only question that needs to be decided is whether the presence of the applicant before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the proceedings. Therefore, according to the learned counsel for the appellants, even if the respondent Nos. 2 and 3 were added as parties, but by such addition it cannot be said that they were also entitled to succeed to the properties in question of late Suryanarayana and therefore entitled to evict the appellants."
16. By citing the said decision, the learned Senior Counsel appearing for the first respondent submitted that in an application filed by the first respondent under Order 1 Rule 10 of the Code of Civil Procedure, the only question that could be decided and was decided is that whether the first respondent herein along with her alienees have to be impleaded or not. But I am unable to accept the said contention advanced by the learned Senior Counsel appearing for the first respondent. In the said application, not only it has been decided that the first respondent and her alienees are not the necessary parties but also it has been held that the first respondent has not established that she is the widow of Tirumalaisami.
17. The other decisions that were relied on by the learned counsel appearing for the first respondent are:-
(i). KRISHNAKUMAR Vs. N. GOVERDHANA NAIDU AND ANOTHER reported in AIR 1975 MADRAS 174 &
(ii). KONERIDOSS Vs. N. SUBBIAH NAIDU AND OTHERS reported in AIR 1975 MADRAS 124.
(iii). MUNIAPPA NADAR AND OTHERS Vs. K.V.DORAIPANDI NADAR AND ANOTHER reported in AIR 1988 MADRAS 117.
a. In the first decision, it has been held by this Court that "Any recognition of right given by a Court in such a proceeding will not confer rights on the recognised representative in the estate or property of the deceased person nor will such a finding operate as res judicata."
b. In the second decision, "the question as to who is the legal representative of plaintiff or defendant, on decision does not operate as res judicata in the subsequent suit."
c. In the third decision, it has been held that the enquiry made under Order 22 Rule 5 CPC is summary in character and is not an appealable order. Any adjudication arrived at in the course of such enquiry cannot operate as res judicata.
There cannot be any quarrel over the said proposition. However, in the case on hand, not only the application filed by the first respondent along with her alienee describing herself as the legal representative of Tirumalaisami was dismissed, but the same was also confirmed by this Court as well as by the Honourable Apex Court. Thus, a clear finding has been rendered that the first respondent herein is not a legal representative of Tirumalaisami. In such circumstances, the first respondent cannot plead that the decision made in the application will not operate as res judicata. Even assuming that the same will not operate as res judicata, I am of the considered view that the first respondent herein cannot maintain the suit for the reasons to be stated here under.
18. It has to be seen that one of the sisters of Tirumalaisami has filed the suit for partition and separate possession. Preliminary decree and a final decree was passed on 22/3/1984 and 23/12/2004 respectively. Thus, the rights of the parties have been settled in those proceedings. While so, the first respondent herein cannot reopen the issue again and seek for partition and separate possession of the properties. That too, after the dismissal of her application to implead herself as party claiming that she is the widow of Tirumalaisamy.
19. Yet another factor that has to be considered is that the first respondent claim that she is the widow of Tirumalaisami was finally rejected by the Honourable Apex Court by its order dated 2/12/2003. The first respondent thereafter has filed the present suit in O.S.No.281 of 2010 before the Principal District Judge, Coimbatore, after 7 1/2 years, claiming that she is the widow of Tirumalaisami and also claiming partition and separate possession. That apart, after alienating the property within ten days from the death of Tirumalaisami.
20. The learned Senior Counsel appearing for the petitioner contended that the present suit is a clear abuse of process of law and he relied on the decision in K.K.MODI Vs. K.N.MODI AND OTHERS reported in (1998) 3 S.C.C. 573. Paragraphs 43 and 44 of the said judgment is usefully extracted hereunder.
"43. 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."
44. 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 the 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."
21. The other decision that has been cited by the learned Senior Counsel appearing for the petitioner is RANIPET MUNICIPALITY, rep. BY ITS COMMISSIONER AND SPECIAL OFFICER, RANIPET Vs. M.SHAMSHEERKHAN reported in (1998) 1 C.T.C 66. Paragraph 9 of the said judgment is usefully extracted hereunder.
"9. It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is 'abuse of the process of the Court'? Of course, for the term 'abuse of the process of the Court' the Code of Civil Procedure has not given any definition. A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
(1) Gaining an unfair advantage by the use of a rule of procedure.
(2) Contempt of the authority of the Court by a party or stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received.
(5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions.
(9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose and intent.
(11) Institution of a suit by a puppet plaintiff.
(12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc. (See The Code of Civil Procedure - A.I.R. Commentary to Section 151, C.P.C.) The above are only some of the instances, where a party may be said to be guilty of committing abuse of the process of Court."
22. In the said decision, the illustration and incenses where, "a party to a litigation is said to be guilty of abuse of the process of the Court" was enumerated.
23. In yet another decision that was reported in 2003 4 CTC 347 (K.K.SWAMINATHAN Vs. SRINIVASAGAM), paragraph Nos. 27 and 30 are usefully extracted hereunder:-
"27. One of the most abuse of process of the Court is re-litigation. It is an abuse of process of the Court and contrary to justice to re-litigate the same issue, which has already been tried and decided earlier against him. If the same issue is sought to be re-agitated by frivolous and vexatious suits, it is not as if the Court is powerless to stop the proceedings when it is brought to its notice. O.S.No.2473 of 1996 is sheer abuse of process of the Court re-agitating the same issue, in my view, should not be allowed to continue.
30. In cases of this nature, it is not as if the court is powerless or its hands are tied merely because the matter comes to the notice of the Court in the revisional Jurisdiction under Sec.115 CPC. The investiture of power u/s 115, CPC is of superintendence and visitorial..... Not fettered to deal with such situations. Where there is clear abuse of process of Court, the Court has to view such conduct seriously and the same is to be halted to save precious time of the public and the Court being wasted. In the recent decision of the Supreme Court reported in K.K. Modi Vs K N Modi, 1998 (3) SCC 573 elaborately considering the abuse of process of the Court. The Supreme Court has held that the Court has power to stop such frivolous and vexatious proceedings. The Supreme Court has only cautioned that such power is to be exercised with circumspection. It is necessary to refer to the observations of the Supreme Court, which are very much relevant for our purpose."
24. Yet another decision that was pointed out by the learned Senior Counsel appearing for the petitioner is TAMIL NADU HANDLOOM WEAVERS CO-OPERATIVE SOCIETY, rep. BY ITS MANAGING DIRECTOR, 350 PANTHEON ROAD, EGMORE, CHENNAI 8 Vs. S.R.EJAZ, rep. BY HIS POWER AGENT MURALIDHAR T.BALANI reported in (2009) 5 L.W 79. Paragraph Nos.34, 49, 56 and 57 are usefully extracted hereunder:-
"34.The statutory provision as contained in Section 11 CPC bars the jurisdiction of a Court to try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title and has been heard and finally decided by such Court. As per Explanation IV to Section 11 CPC, any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Therefore, the second suit is barred not only on the ground that the issue raised in the said suit was directly in issue in the former suit between the parties or their predecessor-in-interest but also on the ground of a deeming fiction. The explanation IV to Section 11 of CPC was inserted with a specific purpose, to put an end to the litigation once for all. In the absence of such a provision, the parties would file suits after suits with new grounds. There should be finality to litigation. The principles of constructive res judicata would be applicable in such cases. In case parties are permitted to initiate re-litigation, it would have the effect of unsettling matters which were settled earlier.
49.In Kishore Kumar Khaitan v. Praveen Kumar Singh, 2006(2) SCALE 304 = (2006) 3 SCC 312) the Supreme Court indicated the extent of jurisdiction under Article 227 of the Constitution of India thus:
"13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
56. .... when the subsequent suit was found to be a vexatious suit initiated to circumvent the binding decree passed earlier as well as to defeat the directions issued by the Supreme Court, there is no point in directing the petitioner to approach the trial Court with an application to reject the plaint.
57. The present suit is clearly vexatious and the attempt is nothing but re-litigation. The respondent has scant respect towards the Court and the rule of law. His attempt is to continue in possession at any cost. The learned Trial Judge should have rejected the plaint at the earliest opportunity and at least after filing counter by the revision petitioner, opposing the plea raised in the suit as well as in the interlocutory application."
25. The above decisions will clearly establish that no party can be allowed to relitigate the matter.
26. The intention of the first respondent is only to reagitate the very same matter already concluded. It is a clear case of abuse of the process of the Court. Reagitation may or may not be barred as res judicata. If it is sought to be made, it is nothing but an abuse of the process of the Court. Frivolous and vexatious proceedings also amount to abuse of the process of the Court especially where the proceedings are absolutely frivolous. The Courts are not helpless in stopping such proceeding summarily at the earliest point of time.
27. The learned counsel appearing for the first respondent citing a decision in M/s. CRESCENT PETROLEUM LTD., Vs. M.V."MONCHEGORSK" AND ANOTHER reported in AIR 2000 BOMBAY 161, contended that the plaint can be rejected only if it does not discloses cause of action and that it has to be exercised utmost caution and only when the Court is absolutely sure that the plaintiff is not having a arguable case at all.
28. He also relied on 2005 7 SCC 510 ((POPAT AND KOTECHA PROPERTY Vs. STATE BANK OF INDIA STAFF ASSOCIATION). In the said decision, it has been held that "In case of disputed question , the plaint cannot be rejected under Order 7 Rule 11 of CPC."
29. By relying yet another decision in BALASARIA CONSTRUCTION (P) LTD Vs. HANUMAN SEA TRUST AND OTHERS reported in (2006) 5 SUPREME COURT CASES 658, the learned Senior Counsel appearing for the first respondent contended that the suit cannot be dismissed as barred by limitation without proper pleadings, framing of issues and taking evidence. The question of limitation is a mixed of question of law and fact.
30. The present revision has been filed by the petitioners to strike off the pleadings in the suit claiming that it is an abuse of process of law and claiming that already, the claim of the first respondent herein was settled in the previous proceedings. The petitioner has not filed any application under Order 7 Rule 11 of the Code of Civil Procedure. Only if an application under Order 7 Rule 11 of C.P.C., is filed, the grounds narrated therein have to be raised rejecting the plaint. In the case on hand, as stated already, the grounds raised by the petitioner is entirely on a different footing.
31. In view of the above facts and circumstances, I am of the considered view that the suit filed by the first respondent in O.S.No.281 of 2010 before the Principal District Judge, Coimbatore is a clear abuse of process of law for the reasons set out earlier.
32. In fine, the Civil Revision Petition stands allowed. No costs.
mvs.
To The Principal District Judge, Coimbatore