Madras High Court
G.Alagarsamy vs R.Seenivasan on 29 February, 2012
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/02/2012 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA (MD) No.489 of 2009 and MP(MD)No.1 of 2009 G.Alagarsamy .. Appellant/Appellant/ Plaintiff Vs. R.Seenivasan .. Respondent/Respondent/ Defendant Second Appeal filed under section 100 of CPC against the Judgment and decree dated 08.01.2007 passed in Appeal Suit No.19 of 2005 by the Sub Court, Periyakulam confirming the Judgment and decree dated 02.09.2004 passed in Original Suit No.153 of 2000 by the District Munsif Court, Periyakulam. !For Appellant ... Mr.P.Muthuvijayapandian ^For Respondent ... Mr.K.Appadurai :JUDGMENT
The concurrent Judgments and decrees passed in Original Suit No.153 of 2000 by the District Munsif Court, Periyakulam and in Appeal Suit No.19 of 2005 by the Sub Court, Periyakulam are being challenged in the present Second Appeal.
2. The appellant herein as plaintiff has instituted Original Suit No.153 of 2000 on the file of the trial Court for the relief of perpetual injunction, wherein the present respondent has been shown as sole defendant.
3. In the plaint it is averred that the suit property is originally belonged to the father of the defendant by name Ramachandran Naickar and he purchased the same under a registered sale deed dated 02.02.1963. The said Ramachandran Naickar has executed a settlement deed dated 17.06.1986 in favour of his wife viz. Seeniammal and the same has come into effect. The plaintiff has purchased the suit property from the said Seeniammal under a registered sale deed dated 25.02.1999 and thus the plaintiff has become absolute owner of the suit property. In the suit property the defendant is not having any manner of right, title and interest and now the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint.
4. In the written statement filed on the side of the defendant it is averred that in respect of the suit property already Original Suit No.328 of 1994 has been instituted, wherein an executable decree has been obtained. The alleged vendor of the plaintiff by name Seeniammal has instituted Original Suit No.384 of 1995 and the same has been dismissed for default. It is false to say that the suit property is the absolute property of the father of the defendant. The suit property is the joint family property and therefore, the father of the defendant has had no right to execute any settlement deed in favour of the mother of the defendant by name Seeniammal and there is no merit in the suit and the same deserves to be dismissed.
5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing 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.19 of 2005 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 dismissed the Appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the plaintiff as appellant.
7. At the time of admitting the present Second Appeal the following substantial questions of law have been settled for consideration:
"(i) Whether both the Courts below are wrong in holding that the settlement deed in favour of the plaintiff vendor has not acted upon?
(ii) Whether the Judgments of the lower Courts are correct in dismissed the suit and appeal without considering plaintiff/appellant is in possession of the property?
8. Before contemplating the rival submissions made on either side, the Court has to narrate the rival pleadings put forth on either side and also the description of suit property. It is an admitted fact that the suit property is comprised in Survey No.2645/1 and its total extent is 80 cents. The suit property is an extent of 2025 square feet.
9. In the plaint it is averred that the suit property is the separate property of Ramachandran Naickar and he purchased the same under a registered sale deed dated 02.02.1963 and subsequently he settled the same in favour of his wife by name Seeniammal under a settlement deed dated 17.06.1986 and the plaintiff has purchased the same under a registered sale deed dated 25.02.1999 and thus, the plaintiff has become absolute owner of the suit property.
10. The defence put forth on the side of the defendant is that already a suit has been instituted for the relief of permanent injunction by the defendant as plaintiff, wherein an executable decree has been passed and subsequently the alleged predecessor in title of the plaintiff viz., Seeniammal has filed a similar suit and the same has been dismissed for default and further the suit property is a joint family property and therefore the father of the defendant viz. Ramachandra Naickar has had no right to execute any settlement deed in favour of mother of the defendant and therefore, the present suit deserves to be dismissed.
11. The Courts below after considering the available evidence on record have non-suited the plaintiff. In the present Second Appeal, apart from the substantial questions of law settled already, the Court has to analyse the legal position to the effect as to whether the present suit is barred under Order IX Rule 9 of the Code of Civil Procedure, 1908, in view of the institution of the suit in Original Suit No.384 of 1995 by the alleged vendor of the plaintiff viz., Seeniammal and its subsequent dismissal for default.
12. It is an admitted fact that the vendor of the plaintiff by name Seeniammal as plaintiff has instituted Original Suit No.384 of 1995 on the file of the District Munsif Court, Periyakulam for the relief of perpetual injunction against two persons namely Jayaprakash and the present defendant. The said suit has been dismissed for default.
13. The learned counsel appearing for the appellant/plaintiff has strenuously contended that Original Suit No.384 of 1995 has been instituted by the predecessor in title of the plaintiff for the identical relief in the year 1995 and the plaintiff has purchased the suit property by virtue of the sale deed dated 25.02.1999 and since then he is in possession and enjoyment of the same and since the defendant has made arrangements to disturb the peaceful possession and enjoyment of the plaintiff, the present suit has been instituted and therefore, the dismissal of Original Suit No.384 of 1995 for default would not be a bar to maintain the present suit and therefore, the present suit is legally maintainable. But the Courts below without considering the merit of the case of the plaintiff have erroneously non-suited him and therefore, the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with.
14. At this juncture, the Court has to look into Order IX Rule 9 of the code of Civil Procedure, 1908 and the same 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".
15. 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.
16. The decree passed in Original Suit No.384 of 1995 has been marked as Ex.B10. Admittedly Original Suit No.384 of 1995 has been instituted for identical relief by the predecessor in title of the plaintiff against the present defendant and other and the same has been dismissed for default. At this stage, a nice legal question arises "as to whether the bar created under Order IX Rule 9 of the Code of Civil Procedure, 1908 would also be applicable to assignee or transferee of plaintiff who instituted earlier suit and dismissed for default.
17. For the purpose of analysing the above legal aspect, it would be more useful to look into the decision reported in AIR 1965 Supreme Court 295 (Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd and others), 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".
18. From the close reading 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 or transferees of the plaintiff, who filed earlier suit.
19. In the instant case, the present plaintiff has claimed right, title and interest to the suit property only through the plaintiff who instituted Original Suit No.384 of 1995. Therefore, as per the dictum passed by the Honourable Apex Court in Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd and others (AIR 1965 Supreme Court 295) it is needless to say that the entire argument advanced by the learned counsel appearing for the appellant /plaintiff is not legally tenable.
20. It has already been pointed out that if a suit is dismissed for default under Order IX Rule 8 of the Code of Civil Procedure, 1908, under Order IX Rule 9 of the said Code, the plaintiff is precluded from instituting a fresh suit. As per the decision of the Honourable Apex Court referred to earlier, the bar created under Order IX Rule 9 of the Code of Civil Procedure, 1908 is also applicable to the assignee or transferee or legal representatives of the plaintiffs who instituted earlier suit which has been dismissed for default. The decision of the Honourable Apex Court referred to supra has been followed by this Court in Ranjith Ammal Vs. Sivasubramanian reported in (2010 (2) CTC 631).
21. In the instant case, it is an admitted fact that for identical relief, the predecessor in title of the plaintiff viz., Seeniammal has instituted Original Suit No.384 of 1995 against the present defendant and other and the same has been dismissed for default. Since the plaintiff has claimed right, title and interest over the suit property through the said Seeniammal and since the suit instituted by her for identical relief has already been dismissed for default and since the bar created under Order IX Rule 9 of the Code of Civil Procedure, 1908 is also applicable to the present plaintiff, the present suit is not legally maintainable. Since the present suit is not legally maintainable, the rival contentions raised on either side, need not be decided and the substantial questions of law formulated in the present Second Appeal are not at all relevant for the purpose of deciding the real legal point which involved in the present case and altogether the present Second Appeal deserves to be dismissed.
22. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost. The concurrent Judgments and decrees passed by the Courts below are confirmed. Connected Miscellaneous Petition is also dismissed.
mj To
1.The Sub Court, Periyakulam
2.The District Munsif Court, Periyakulam