Madras High Court
Rangaraj And Ors. vs P.R. Hemachandra Babu on 22 January, 2008
Equivalent citations: (2008)2MLJ1031
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, M. Venugopal
JUDGMENT S.J. Mukhopadhaya, J.
1. The appellants, (appellants 1 to 3 being represented by their Power of Attorney Agent), who are the defendants 1,3,4 and 9 to 13 in the suit, have preferred this appeal against the order dated 5.3.2007 passed in Application No. 3932 of 2006 in C.S. No. 586 of 2006 on the Original Side of this Court.
By the said order, the learned single Judge, while dismissing Application No. 2828 of 2006 preferred by the plaintiff (the respondent herein) to stay the operation of all further proceedings, rejected the Application No. 3932 of 2006 preferred by the defendants 1,3,4 and 9 to 13 to (the appellants herein) dismiss the entirety of the proceedings in C.S. No. 586 of 2006 as being barred by "res-judicata" under Section 11 of the Code of Civil Procedure (for short, CPC), read with Section 12 CPC, as also on the ground that the suit is barred by limitation.
2. The contesting respondent who was the plaintiff, preferred the suit C.S. No. 586 of 2006 on the Original Side of this Court for the judgment and decree, declaring the Will dated 8.12.1957 executed by the plaintiff's father P.V. Ramasamy Naidu, probated on 9.3.1967 in T.O.S. No. 3 of 1965 by this Court, as valid and genuine, with a further prayer for declaring that the plaintiff/executor is the owner of the property in question, after complying with the conditions stipulated in the Will by the testator and also for declaring that the defendants 9 to 13 are not entitled to the benefits to the terms and conditions as contained in the Will dated 8.12.1957.
3. The appellants herein, who are the defendants 1,3,4 and 9 to 13 entered appearance and filed Application No. 3932 of 2006 under Sections 11 and 12 CPC to dismiss the entire proceedings in C.S. No. 586 of 2006 as being barred by res-judicata and also barred by limitation.
4. Learned Counsel appearing for the appellants submitted that earlier, the respondent-plaintiff and Anr. filed O.S. No. 9540 of 1987 for possession of the suit schedule property from his brother Mr. P.R. Janarthanam, the heir (father) of the defendants 9 to 13, and the suit was dismissed on 30.12.1989, holding that the plaintiff is not the owner of the property mentioned therein; Appeal in A.S. No. 307 of 1990 preferred by the plaintiffs (in O.S. No. 9540 of 1987) against the said decree, was also dismissed on 29.9.1992, followed by the dismissal of Second Appeal No. 1538 of 1993, preferred by the plaintiffs, on 11.4.2003 and the dismissal of the Special Leave Petition in Special Leave to Appeal (Civil) No. 17371 of 2003, on 26.9.2003, by the Supreme Court at the stage of admission as was preferred by the plaintiffs.
It was further informed that the father of the defendants 9 to 13, namely (late) P.R. Janarthanam, earlier filed the suit for partition in O.S. No. 5031 of 1996, which was decreed on 21.1.2004 and no appeal having been preferred against the preliminary decree, it has reached the finality. It was submitted that the right, title, interest and the name of the plaintiff having been already decided in the proceeding aforesaid, the present suit is barred by "res-judicata" and "limitation".
5. On the other hand, according to the learned Counsel appearing on behalf of the respondent-plaintiff, the Will having been probated by this Court in T.O.S. No. 3 of 1965, on 9.3.1967, the plaintiff is entitled to the relief as prayed for and the suit is required to be decided on merits.
6. Both the learned Counsel appearing for the parties placed reliance on one or other judgments passed by the High Court(s) and the Supreme Court.
7. We have heard the learned Counsel appearing for the parties and noticed the rival submissions.
8. The only question required to be determined in this appeal is that whether in the facts and circumstances and in view of the fact that the suit was dismissed in O.S. No. 9540 of 1987 and the preliminary decree was passed in O.S. No. 5031 of 1996, the present suit is barred by "res-judicata" and "limitation".
9. Learned Counsel appearing for the respondent-plaintiff has submitted that no documents have been marked, many of which have been relied on by the plaintiff. Even the judgment and decree passed in one or other suit has not been laid and nobody has proved such a decree. It was also contended that the earlier suit being limited only in respect of three rooms of the property in question, whereas the present suit relates to the entire suit property, and therefore, it cannot be held to be barred by "res-judicata".
10. A plaint can be rejected under Order 7, Rule 11 CPC in certain cases; under Clause (d) of Rule 11 (Order 7) CPC, if the suit appears from such statement in the plaint to be barred by any law, it is open for the defendant to pray for rejection of the plaint.
11. The defendants 1,3,4 and 9 to 13 have filed application under Sections 11 and 12 CPC i.e. on the ground that it is barred by "res-judicata" and "limitation".
12. In the decision (S.S. Khanna v. F.J. Dillon), the Supreme Court held that the jurisdiction to try the issues of law apart from the issues of fact, may be exercised only where in the opinion of the Court that the whole suit may be disposed of on the issue of law alone and the Code confer no jurisdiction upon the Court to try the suit on merely issues of laws and facts, i.e. mixed issues as preliminary issues and normally, all the issues should be tried by the Court and that failure to do so may result in a lopsided trial of the suit.
13. In the decision (Ramdayal Umraomal v. Pannalal Jagannathji), a Full Bench of the Madhya Pradesh High Court was of the opinion that an issue relating to jurisdiction can be tried as a preliminary issue, only if it can be disposed of without recording any evidence; where the issue relating to jurisdiction is mixed question of law and fact, requiring recording of evidence, the same cannot be tried as a preliminary issue.
14. This Court in the decision reported in 1995 (1) CTC 266 (M. Sadaksharavel v. State Bank of India, Coimbatore), held that the plea of limitation is a mixed question of fact and law and not merely issue of law.
15. In (Laljivora v. Srividya), this Court held that only two categories of issues can be decided as preliminary issues, namely the jurisdiction of the Court or the bar of the suit created by any law for the time being in force.
16. In the present case, as pointed out and noticed by the learned single Judge that the plaintiff has raised the question of fact and the issue involved is a mixed question of law and fact, we are in agreement with the learned single Judge that such issue cannot be determined as a preliminary issue, which can be determined at the time of trial along with the other issues.
17. In the circumstances, we are not inclined to interfere with the impugned order passed by the learned single Judge in Application No. 3932 of 2006 in C.S. No. 586 of 2006, dated 5.3.2007. There being no merits, the appeal is dismissed. But there shall be no order as to costs. The Miscellaneous Petition is closed.