Madras High Court
S.R.Selvaraj vs Krishna Rathi Ammal on 1 October, 2012
Author: T. Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 01.10.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.1458 of 2007 and CRP NPD No.3952 of 2008 and MP Nos.1/07, 1 to 3/08 & 1/11 1. S.R.Selvaraj 2. S.Suresh Kumar 3. S.Ravirathnam 4. S.Rajarathinam 5. Kudiarasu Devi ... Appellants in Second Appeal / Petrs. in CRP. vs. 1. Krishna Rathi Ammal 2. Santhanalakshmi Ammal 3. S.Ashokan 4. Jayalakshmi Ganesan 5. S.Veeraraghavan 6. S.Natarajan 7. S.Ganpathy ... Respondents in both Second Appeal & CRP. Second Appeal filed under Section 100 CPC as against the judgment and decree, dated 06.03.2007, passed by the V Additional Judge, City Civil Court at Chennai, in A.S. No.707 of 2006, confirming the judgment and decree, dated 21.07.2006, passed by the VII Assistant Judge, City Civil Court, Chennai, in O.S. No.6992 of 2001. Civil Revision Petition (NPD) filed under Article 227 of the Constitution of India to set aside the order dated 06.03.2007 passed in CMP No.77 of 2007 in A.S. No.707 of 2006 on the file of the V Additional City Civil Court, Chennai. For Appellants/Petrs. in SA / CRP : Mr.K.M.Vijayan, Sr. Counsel for Ms.R.T.Shyamala For R1 & R2 in both the cases : Mr.T.Dhanasekaran For R3 to R7 in : Mr.D.Sadhasivan both the cases COMMON JUDGMENT
The present Second Appeal and the Civil Revision Petition were directed to be listed before this Court as 'specially ordered cases' along with Writ Petition No.26002 of 2001 filed by respondents-3 to 7 in the Second Appeal as against the impugned order dated 15.12.2001 passed by the R.D.O., Chengalpattu. During the pendency of the said Writ Petition, it seems that R3 to R7 in the Second Appeal/petitioners in the W.P. filed Revision before the authority concerned. Therefore, for proper disposal of the pending revision petition, the Writ Petition is ordered to be de-linked and consequently, the interconnected Second Appeal and the CRP are taken up for joint hearing and now, disposed of by this Common Judgment.
2. The unsuccessful plaintiffs before both the courts below have brought this Second Appeal, challenging the Judgment and decree, dated 06.03.2007, passed by the V Additional Judge, City Civil Court, Chennai, in A.S. No.707 of 2006 on 06.03.2007, in and by which, the judgment and decree, dated 21.07.2006, passed by the VII Assistant Judge, City Civil Court, Chennai, refusing to grant an order of permanent injunction in favour of the plaintiffs/appellants herein, restraining the defendants and their men and agents from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the suit property situated at No.145, New No.134, Neelankarai Village, Saidapet Taluk, bearing survey No.84/1A measuring an extent of 1 acre and 50 cents, came to confirmed.
3. Brief facts which ultimately led to the filing of the present Second Appeal are given as under:-
i) The plaintiffs, in their plaint filed before the trial court, claimed that they purchased the property in Survey No.84/1-A, Door No.3/545, East Coast Road (ECR), Neelankarai, to an extent of 1.50 acres in Tambaram Taluk, Chengalpattu District, from defendants-1 and 2 under registered sale deed dated 15.09.2000 and subsequently, they were also put into possession thereof. Further, temporary shed was put up therein and also, a Watchman was posted to look after the property and to safeguard their interests. The plaintiffs came to understand that their vendors/defendants-1 and 2, joining hands with defendants-3 to 7, were trying to dispossess the plaintiffs for the reasons best known to them based on some subsequent alleged agreements, and reacting to such act, a police complaint was lodged with C-9 Police Station, ECR, Neelankarai, Chennai-41, against the defendants, but, the police were reluctant to take any action to stop the illegal attempts by the defendants. Therefore, ultimately, they were constrained to file the suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property described in the plaint schedule.
ii) A brief written statement was filed by defendants-1 and 2 by stating that the suit is not maintainable both on law and facts. It was further stated that the first defendant is a joint owner along with the 2nd defendant by virtue of a deed of compromise. While so, the first defendant sold and handed over possession of the suit property on the date of execution of the sale deed dated 15.09.2000. According to them, when the 1st defendant was made as a vendor and the 2nd defendant as a confirming party in the sale deed in favour of the plaintiffs, the allegation made cannot be sustained and hence, the suit is liable to be dismissed.
iii) A detailed written statement was filed by the Power Agent-one A.R.Suresh on behalf of defendants-3 to 7. It is stated that the suit is not maintainable since the plaintiffs base their claim through a fabricated and unregistered document alleged to have been executed during the pendency of a litigation. The property situated at Door No.3/545, ECR, Neelankarai village, forms part of larger extent of land in S.No.84 and in paimash Nos.166, 167, 168/A and 170/A of a total extent of 20 acres and 85 cents, originally belonged to one Bombay Company Limited, who had purchased the same in a Court auction Sale. The father of D-3 to D-7 G.Subramania Iyer, who was working as Chief Controller of Aerodromes at Chennai, purchased an extent of 96 acres 49 cents in S. No.84 and 91/295 along with his friend one Anantha Narayanan through registered Sale Deeds dated 10.12.1943 and 26.03.1945 vide document Nos.3130/43 and 550/45 respectively. They enjoyed their respective purchased items of properties with absolute ownership by paying tax to the Government and the patta also stood in their name. Subsequently, one of the joint owners-Anantha Narayanan had relinquished his share and interest in the properties in favour of G.Subramania Iyer/father of D3 to D7 by registered released deed dated 07.11.1960 in Document No.2779/1960; hence, the father of D3 to D7 became the absolute owner of the suit property and other properties. After some time, Subramania Iyer sold about 94.57 acres of land out of the total extent of 96.48 acres he purchased in 1943 through various registered sale deeds dated 01.06.1961, 27.04.1966, 27.03.1974, 25.01.1975 and 28.06.1975 after retaining 1 acre & 91 cents in Survey No.84 which was subsequently subdivided as S.No.84/1. The sale deed dated 28.06.1975 is self-explanatory for the reason that the father of D3 to D7 Subramania Iyer made a specific recital therein that he retained a portion of the property after sale and, as such, after the demise of their father and mother, defendants-3 to 7 are enjoying the said property as co-owners and patta also stands in their father's name. While so, persons who have no connection whatsoever to the property nor to the family of D-3 to D-7 fabricated documents in respect of the suit property and applied for effecting transfer of patta for the suit property in their name. On coming to know of such attempts from the V.A.O., D3 to D7 put up a pucca compound wall, posted a Watchman and gave objections to the Tahsildar not to consider any application for transfer of patta in respect of the suit property. The Tahsildar, after conducting enquiry, passed orders to retain the patta in the name of these defendants as joint holders. In the meantime, D3 to D7 filed a suit for permanent injunction against D-1 and D-2 in O.S. No.481 of 2001 before the District Munsif Court, Alandur, and obtained an order of interim injunction in I.A. No.2115 of 2001 on 27.09.2001. In spite of these developments, on coming to know from reliable sources that Defendants-1 and 2 have created some forged documents styled as 'sale deed' by undervaluing the property for a sum of Rs.20 lakhs as that of an agricultural land and presented the said document for registration, D-3 to D-7 placed their objections before the Sub Registrar, Neelankarai, with a requisition not to entertain any document for registration. But, the request of these defendants was refused by the Sub-Registrar, ignoring the fact that defendants-1 and 2 deliberately undervalued the suit property worth about more than Rs.3 crores for Rs.20 lakhs. These defendants are in possession of the property and the plaintiffs have never been in possession of any inch of the property as alleged; hence, no cause of action arises for filing the suit by the plaintiffs. Further, the suit filed by the plaintiffs for injunction is not maintainable when their title is specifically denied and also, it is barred under the provisions of the CPC as no sufficient court fee was paid in respect of the property worth about more than Rs.2 crores. Hence, D-3 to D-7 prayed for dismissal of the suit.
iv) The trial court, with reference to the following issues framed by it for consideration, " a) whether the plaintiffs are in possession and enjoyed the suit property?
b) whether the suit for permanent injunction without the prayer for declaration is maintainable?
c) whether the plaintiffs are entitled for permanent injunction as prayed for?
d) to what relief plaintiffs are entitled?
and also an additional issue,
e) whether this court has jurisdiction to try the suit?", at the first instance, in the light of the oral and documentary evidence adduced on either side, answered the additional issue on jurisdiction in favour of the plaintiffs by pointing out that the suit was rightly filed in the place where one of the defendants ordinarily resides. On the veracity of purchase by the plaintiffs, it was categorically observed that when the plaintiffs claimed that they purchased the suit property by paying sale consideration of Rs.20 lakhs, for the notice issued to them by D3 to D7 under Exs.B97 to B100, requiring them to prove the alleged payment by producing the documents mentioned viz., Banks Statements of the plaintiffs in T.N. Mercantile Bank for the relevant period, original counter foils of the cheques, I.T. Returns, etc, so as to find out as to whether the plaintiffs have in fact purchased the property by paying the sale consideration, plaintiffs-1 and 2 themselves admitted before court, in their cross examination, that they did not produce the relevant documents as sought to be produced by D3 to D7. By holding that the plaintiffs have not proved the payment of Rs.20 lakhs towards the sale consideration as found in Ex.A1; that, in the proof affidavit, nothing was mentioned about the sale consideration; and that no piece of evidence was adduced to believe the case of the plaintiffs regarding the sale transaction, the trial court came to the conclusion that the plaintiffs miserably failed to prove payment of consideration and that Ex.A1 being sham and nominal, it does not confer any title in favour of the plaintiffs. It was also found that the plaintiffs did not produce any kist receipt for the period from the date of their purchase to the date of filing of the suit to prove their possession in the suit property. Also, the trial court observed that when there was a clear dispute raised by D3 to D7 on the title of the plaintiffs over the suit property, the suit for permanent injunction alone filed by the plaintiff cannot be legally maintained. Ultimately, by Judgment and decree dated 21.07.2006, the suit was dismissed.
v) Aggrieved by the same, the plaintiffs moved the appeal in A.S. No.707 of 2006 and the learned first appellate Judge, after deep deliberation, agreeing with the findings and conclusion reached by the trial court, dismissed the Appeal by Judgment dated 06.03.2007.
As against the concurrent findings of the courts below, the present Second Appeal has been filed.
4. At the time of admission, this Court framed the following substantial questions of law for consideration:-
" i) Whether the Court below was right in holding that the suit for bare injunction is not maintainable without the prayer for declaration of title?
ii) Whether the findings of the Court below regarding the title and possession of defendants 3 to 7 is sustainable in view of the order passed in O.S. No.481 of 2001?
iii) Whether the finding of the Court below is right in holding that the respondent 3 to 7 are resisted by the interim injunction when he is not the true owner?
When the matter was taken up for hearing, Mr.K.M.Vijayan, learned Senior Counsel appearing for the appellants/plaintiffs requested this Court to frame 3 more substantial questions of law for proper and effective disposal of the appeal and for such request, Mr.D.Sadhasivan, learned counsel appearing for respondents 3 to 7/D3 to D7 expressed his no objection, whereupon, finding substance in the request of the learned senior counsel, this Court exercising the power conferred under Section 100 (3) and (4) CPC., framed the following three more substantial questions of law:-
"iv) Whether the impugned judgment and decree in the Second Appeal No.1458/2007 can be looked into as the subsequent suit is overlooking the bar imposed under Section 10 of C.P.C.?
v) Whether the withdrawal of the suit in O.S. No.481/2001 after passing the impugned judgment and decree will enable the respondents to contest the present Second Appeal?
vi) Whether the principles of res-judicata as contemplated under Section 11 of CPC. will apply against R3 to R7 herein?"
5. While addressing his arguments on the first two substantial questions of law, Mr.K.M.Vijayan, learned senior counsel for the appellants, submitted that the courts below have wrongly held against the plaintiffs/appellants that the suit for injunction is not maintainable without a prayer for declaration of title. He pointed out that respondents-3 to 7 herein/D3 to D7 in the suit, without even impleading the appellants, filed a suit in O.S.No.481 of 2001 before the District Munsif, Alandur, as against RR-1 and 2/D1 and D2 alone, who are vendors of the plaintiffs/appellants herein, seeking for grant of bare injunction in respect of the very same suit property prior to filing of the suit in O.S. No.6992/01-subject matter of the present Second Appeal. Even the ex-parte injunction granted to R3 to R7 herein/plaintiffs in the said suit-OS No.481 of 2001 was subsequently vacated, whereupon, the aggrieved plaintiffs/R3 to R7 herein filed an appeal in CMA No.21 of 2002 before the Sub Court, which was also dismissed on 06.10.2005, negativing the case of R3 to R7 herein/plaintiffs in O.S. No.481 of 2001. CPR PD Nos.1020 and 1021 of 2007 filed against the order passed in CMA No.21 of 2002 were also dismissed by orders dated 05.06.2007. Therefore, respondents-3 to 7 herein have been found to be not entitled for injunction in respect of the suit property even against R1 and R2/vendors of the plaintiffs-appellants herein. By pointing out the above aspects, learned Senior Counsel would state that when the case of respondents-3 to 7 for bare injunction was already concluded against them, the suit filed by the plaintiffs/appellants should have been decreed with further direction to the parties to approach the competent court by filing separate suit for declaration of title. According to him, since both the courts below did not appreciate the above mentioned vital aspects, their ultimate concurrent findings absolutely deserve interference at the hands of this Court.
Mr.T.Dhanasekaran, learned counsel appearing for R1 and R2 herein, adopted the arguments advanced by the learned Senior Counsel for the appellants on all the issues.
6. Per contra, Mr.D.Sadhasivan, learned counsel appearing for respondents-3 to 7, submitted that when the appellants herein/plaintiffs filed the suit in question with a prayer for bare injunction, legally, they are bound to discharge their obligation by substantiating through acceptable evidence that actually, the sale transaction was effected on due payment of the consideration and consequently, they continued to be in possession as on the date of the suit. Unfortunately, when the plaintiffs/appellants have miserably failed to prove their possession, merely because of some minor discrepancies in the case of the defendant, it does not follow that the plaintiffs should be granted the decree for permanent injunction. More over, while answering the case of the plaintiffs, when the trial court, after tracing out the title and ownership in respect of the suit property, reached the correct conclusion on fact that the plaintiffs/appellants have not produced any document to prove valid execution of the sale deed after payment of sale consideration, such clear finding that the plaintiffs have not traced their title to the suit property except producing Ex.A1, which was held to be a sham and nominal document, cannot be so lightly ignored and interfered with based on the feeble argument of the learned Senior Counsel. According to him, when the clear-cut finding of the trial court was affirmed by the lower appellate court in its exhaustive order by further assigning strong reasons to completely discard the vague case of the appellants, this Court, sitting under the limited jurisdiction conferred under Section 100 CPC, may not disturb the concurrent findings based on sound reasoning and logical conclusion.
7. I find considerable force in the submissions made by the learned counsel for the respondent, for, it is settled law that, in a suit for permanent injunction, the plaintiff has to prove that he continued to be in possession on the basis of valid documents, in this case - Ex.A1. Merely because D-3 to D-7/plaintiffs in O.S. No.481 of 2001 withdrew the said suit, such withdrawal will not follow that the appellants are in possession of the suit property. Both the courts below, after recording a factual finding that D3 to D7 are the rightful owners of the suit property covered by S. No.84/1 measuring about 1.90 acres in Neelankarai Village, Saidapet Taluk, Chengalpattu District, went into the issue of possession and came to the conclusion that the appellants/plaintiffs have not produced any kist receipt for the period from the date of their purchase ie., 19.09.2000, to the date of filing of the suit on 03.12.2001. When both the courts below, based on evidence, arrived a consistent factual finding as against the plaintiffs/appellants in respect of possession of the suit property by holding that they failed to file any documentary evidence to prove that their predecessor-in-interest Krishnarathi Ammal/alleged vendor was in possession of the suit land from the date of her purchase on 08.08.1975 from one Srinivasa Naicker, who is said to have purchased it from one Rengasamy Pillai on 29.02.1959, and on that basis, refused to grant the relief of permanent injunction, I fail to understand as to how the appellants/plaintiffs are legally entitled to a decree of permanent injunction.
It is also pertinent to mention here the ratio laid down by the Apex Court in ANATHULA SUDHAKAR V. P.BUCHI REDDY (2008 (4) SCC 594), wherein, the Apex Court has held that where a suit is filed for a bare injunction by the plaintiff against the defendant, who raises a cloud over the plaintiff's title contending that he is the owner of the very same property, then, the proper course for the plaintiff would be either to withdraw the suit for filing a suit for declaration and possession or move an application for amendment of the prayer, seeking declaration of title and possession. It was further held that where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
By contrasting the said ratio with the case on hand, it should be pointed out here that when D3 to D7 filed a detailed written statement, strongly questioning the title and ownership of the plaintiffs over the suit property and also disputing the alleged sale deed Ex.A1 dated 15.09.2000, which is categorised based on sound reasoning of the courts below as a sham and nominal document, rightly the courts below declined to grant the relief in favour of the plaintiffs as they miserably failed to prove the very basic aspects regarding the sale transaction involved for valuable consideration and also possession of the plaintiffs. When title became the core issue in the matter, the plaintiffs/appellants also failed to make suitable prayer for declaration of tile and consequential relief of possession. As pointed out above, even in the suit for injunction, in order to exceptionally consider the issue of title, the plaintiffs did not have a good case as there was a strong question hanging on the factum of purchase itself and their continuous possession in the property for the relevant period. Therefore, I am of the considered opinion that when a cloud is cast over the plaintiffs' title on the suit property, the plaintiffs should have either amended the prayer for larger relief of declaration of tile and consequential relief of possession or after withdrawing the suit, should have filed a comprehensive suit. The findings of the courts below in this regard being in perfect order, I answer the above two questions of law against the appellants and in favour of the defendants.
8. Learned Senior Counsel for the appellants, while advancing arguments on the 3rd substantial question of law, pointed out that the plaintiffs purchased the suit property from D1 & D2/R1 & R2 herein who traced their title under Ex.B89, sale deed executed by Gomathi Srinivasan in favour of D2/R2 herein. The said document clearly shows that the suit property covered in S. No.84/1 is correlated to Paimash No.165 with an extent of 1.90 acres. Therefore, Santhanalakshmi Ammal/D2 is the rightful owner of the suit property by virtue of Ex.B89 dated 17.10.1962. Subsequently, when patta was applied before the Tahsildar, an enquiry was conducted wherein, the father of R1 to R3 G.Subramania Iyer, the original pattadar himself, admitted that S.No.84/1 also includes paimash No.165, owned and possessed by R2 Santhanalakshmi Ammal, and consented for issuance of joint patta in her name for S.No.84/1. Based on the admission made by the father of D3 to D7/R3 to R7 herein, joint patta was issued by the Tahsildar, Saidapet, in his order dated 16.02.1965 including the name of Santhanalakshmi Ammal for S. No.84/1. Subsequently, when there was a dispute between R1 and R2, a suit was filed in O.S. No.904 of 1976 on the file of the District Munsif Court, Poonamallee, for declaration and injunction. Ultimately, the suit was decreed in favour of R2 Santhanalakshmi Ammal and challenging the verdict, R1 Krishnarathi Ammal filed A.S. No.20 of 1992 and the first appellate court reversed the Judgment and decree of the trial court, whereupon, Sanathanalakshmi Ammal filed Second Appeal No.804 of 1994 before the High Court. In the Second Appeal, a compromise was reached between R1 and R2 whereby the title of R1 was confirmed by R2, who received a cash consideration of Rs.2 lakhs from R1.
So pointing out, learned Senior Counsel would submit that the above sequence of events show that the dispute between D1 and D2 was amicably resolved and it follows that the title and ownership over the suit property in respect of the vendors / R1 and R2 from whom the plaintiffs purchased the property cannot be doubted. Had these crucial factual aspects been appreciated in a right perspective by both the courts below, the prayer of the plaintiffs would not have been rejected. Therefore, this Court, in this deserving case for interference, by taking serious note of the apparent flaws and errors committed by the Courts below, may step in to efface the prejudice resulted in to the plaintiffs/appellants.
9. In reply, learned counsel appearing for the respondents submits that O.S. No.904 of 1976 filed by R-2 Santhanalakshmi Ammal against R-1 Krishnarathi Ammal is only related to customary right enjoyed by the Vendor (V.Srinivasan) to Santhanalakshmi Ammal in respect of Paimash No.165 of Neelankarai Village measuring an extent of 1.90 acres, a Government poramboke land. According to him, the suit property covered in S. No.84/1 is not correlated to Paimash No.165 as claimed by the plaintiffs/appellants or D1 and D2/R1 and R2, but, S. No.84/1 relating to the suit property is correlated to Paimash Nos.166/A, 167, 168A and 171A. Therefore, when D3 to D7 filed an exhaustive written statement along with requisite material evidence to prove their case that they are the owners of the suit property covered in S.No.84/1 correlated to Paimash Nos.166/A, 167, 168A and 171A, the trial court as well as the lower appellate court took much pains to go through the pleadings of the plaintiffs with reference to the entire realm of evidence and consistently held that the appellants herein/plaintiffs miserably failed to prove their possession over the land since the land claimed by the plaintiffs with reference to S. No.84/1 correlated to Paimash No.165 is relating to a Government poramboke land as found in 'A' register maintained by the Revenue Department. Generally, customary rights can be claimed only regarding poramboke lands. That is why, the lower appellate court clearly highlighted the factual aspect that even though the plaintiffs claimed the subject matter of S.No.84/1 as the suit land which is correlated to Paimash No.165, in the light of the documentary evidence in particular the land survey records, the defendants proved their case that the suit property covered by S.No.84/1 corresponds to Paimash Nos.166/A, 167, 168A and 171A and that the vendor of the plaintiffs Santhanalakshmi Ammal and the first defendant had customary right only over the poramboke land.
10. I find considerable force in the above submission of the learned counsel for respondents-3 to 7 for the simple reason that what are all the observations and findings rendered by the courts below on this particular issue are based on clear documentary evidence and that this Court is not even able to discard a single finding as the materials make it clear that neither Krishanrathi Ammal nor Santhanalakshmi Ammal had any good title over the property in question nor was in possession and enjoyment of the suit land and at best, they can only be termed as 'strangers' to the suit property. Inasmuch as defendants 3 to 7 are entitled to resist the interim injunction as they are the lawful owners of the suit property in S.No.84/1 correlated to paimash Nos.166A etc., the third substantial question of law should be answered against the appellants and done accordingly.
11. While elaborating on substantial question of law No.4, learned Senior Counsel submitted that when there are suits in respect of the same suit property, one by D3 to D7 as plaintiffs in O.S. No.481 of 2001 and another suit filed by the appellants herein/plaintiffs in O.S. No.6992 of 2001, without staying the subsequent suit, the earlier suit filed by defendants-3 to 7 should not have been taken up for hearing since the mandate in Section 10 CPC directs that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed; inasmuch as pendency of the suit in another court certainly precludes the suit filed subsequently to be taken up for hearing. Further, when the mater in issue in the later suit being directly and substantially the same as in the previous suit, respondents 3 to 7/D3 to D7, who have earlier filed their suit in O.S. No.481 of 2001, should have moved an Application before this Court not to proceed with the matter till the disposal of their suit; but, in the present case, the suit filed by defendants 3 to 7 was withdrawn by them after their interlocutory applications were dismissed against them by the trial court and the lower appellate court as well as the High Court, refusing to grant them injunction. The legal position that D3 to D7 having lost their suit for injunction are not entitled to contest the present suit, has been completely overlooked by the courts below. Therefore, in terms of what is provided under Section 10 CPC, if any later suit filed by anybody is not brought to the notice of the court hearing the later suit and finally a decree is passed, the same would become nullity. In support of his argument, learned Senior Counsel placed reliance on the decision of the Apex Court in Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. (1998 (5) SCC 69) and in particular referred to para No.8 of the Judgment which runs thus:-
" Therefore, the word "trial" in section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to 'proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit'. The object of the prohibition contained in section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the later suit with earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense."
12. A mere reading of the above ratio of the Hon'ble Apex Court shows that Section 10 is a general provision applicable to all category of cases, however, the object of the prohibition contained in section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits. The provision which is in the nature of a rule of procedure does not affect the jurisdiction of the court to entertain and deal with the later suit nor does it create any substantive right in the matters. Further, it is not a bar to the institution of a suit and to pass any interlocutory order. In the present case also, the suit filed by D3 to D7 was not disposed of and only the interim application was dealt with and pursued and ultimately, R3 to R7 herein withdrew the suit. Therefore, in effect, when the main suit filed by those defendants was not at all taken up for hearing and dealt with on legal issues and the ratio laid down by the Hon'ble Apex Court in the decision highlighted by the learned Senior Counsel himself is very clear on the point to the effect that 'the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense', the argument advanced by him cannot be sustained. Learned counsel for the respondents-3 to 7 rightly pointed out that mere filing of an application under Section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter and he also referred to a decision of the Apex Court reported in AIR 2004 SC 3504 (PUKHRAJ D. JAIN AND OTHERS vs. G. GOPALAKRISHNA) which is directly on the point, and the relevant portion is extracted below:-
"The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court as to how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. However, where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side."
The above ruling of the Apex Court reiterates that the object of Section 10 CPC. is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and that the provision deals only with a rule of procedure and it does not affect the jurisdiction of the court to entertain and deal with the later suit nor does it create any substantive right in the matters. Thus, if two suits are filed in two courts in respect of same cause of action even though filing of two suits by same party is legally impermissible, as could be seen from the present case, D3 to D7 though filed the suit in O.S. No.481 of 2001, moved an application in I.A. No.2115 of 2001 for grant of interim injunction and even though the relief was granted initially, the trial court, on entertaining the application to vacate the relief, vacated the same, as against which, the CMA and the consequent CRP filed having been dismissed, ultimately, the suit in O.S. No.481 of 2001, for the reasons best known to D3 to D7, was withdrawn by them. Therefore, legally speaking, the suit filed by D3 to D7 had no effect on the subsequent suit filed by the plaintiffs with reference to nullity. Further, even in their own suit, when the plaintiffs/appellants were obliged to prove their own case for grant of injunction by substantiating that from the date of purchase of the suit property till the date of filing of the suit, they have been in possession of the property, they miserably failed to establish such basic and vital requirement. On the other hand, defendants-3 to 7, by producing all oral and documentary evidence, traced their clear title to the property and their continuous possession therein from 1950 in respect of S. No.84/1 correlated to Paimash Nos.166A etc. Therefore, in the light of the ratio laid down by the Apex Court in the above mentioned Judgment holding that Section 10 CPC enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity, and of the fact that the subsequent suit, upon which the earlier suit had no effect at all even otherwise to technically apply Section 10 CPC, was contested by all the parties by raising legal grounds and adducing available evidence and ultimately decided in correct perspective, one cannot be heard to say that D3 to D7 failed to move appropriate application to stay the subsequent suit and that the said suit which is the subject matter of the present Second Appeal is hit by nullity. In view of the clear legal position as pointed above, this substantial question of law is also answered against the appellants.
13. Arguing on the interconnected substantial questions of law Nos.5 and 6, learned Senior Counsel for the appellants, by referring to the principles of res judicata as outlined in Section 11 CPC., submitted that D3 to D7 suffered from their own suit by getting the injunction application dismissed by the trial court which order was not interfered with on appeal and revision and ultimately, the suit of D3 to D7 was withdrawn without the leave of the Court, hence, the same would operate as res judicata. As the withdrawal of the suit by D3 to D7 is after the dismissal of the First Appeal filed by the plaintiffs/appellants, now there is a legal vacuum inasmuch as the suit filed by the defendants for injunction was dismissed and the suit filed by the plaintiffs/appellants was also dismissed; therefore, nobody would be in a position to claim any relief. So submitting, he prayed this Court to remit the matter back to the trial court for fresh disposal as such plea is fair and proper.
14. Learned counsel appearing for respondents-3 to 7 would submit that the suit filed by the plaintiffs/appellants was taken up for full hearing and after dismissal of the same, the matter was taken to the first appellate court and the said court also confirmed the verdict of the trial court and rejected the appeal by its well reasoned impugned Judgment herein and only after the concurrent findings passed by the courts below, the defendants-respondents 3 to 7 herein withdrew the suit. Therefore, the legal position having regard to the factual background in which the matters were canvassed and the ultimate results they reached being clear that the principles of res judicata can never be made applicable to the case, the argument of the learned Senior Counsel advanced in that regard may be watered down. He referred to a decision of the Apex Court reported in AIR 1964 SC 993 (1) (Arjun Singh v. Mohindra Kumar and others), wherein, the Apex Court, while considering the scope of the principle of res judicata held that it is not confined to what is contained in Section 11 but is of more general application; the reason being, interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge.
According to the learned counsel, in view of the above clear position, when the interlocutory applications filed by D3 to D7 seeking temporary injunction was rejected and the same was also affirmed by the appellate court, it does not mean that D3 to D7 have been forbidden from producing more sufficient evidence to prove their case of possession on the basis of various documents. So submitting, learned counsel reiterated that there is no point at all in raising the plea of res judicata to apply the same pointlessly for the present proceedings.
15. Again, the scales should be tilted only in favour of respondents-3 to 7 for more than one reason. The legal position is very clear that in deciding a matter with the present background of factual aspects, courts are not required to look into orders of an interlocutory nature such as orders granting temporary injunction, appointing receiver, etc which do not purport to decide the rights of the parties finally, for, the Apex Court has time and again carved it out as an exception to the general rule. In the case on hand, the doctrine of res judicata clearly ruled out for the reason that even though the suit filed by D3 to D7 was pending, the matter was not fully contested on legal issues and ultimately, after the injunction was vacated and the appeal/revision failed, the suit itself was withdrawn. Therefore, whatever the orders passed in the interim application, not being final and ultimately, the same having been rendered to naught on account of withdrawal of the suit, the question of bar of res judicata would not apply inasmuch as the other suit embracing all the parties was well agitated by all before the trial court as well as the lower appellate court by way of First Appeal and this Court in this Second Appeal. Otherwise, learned Senior Counsel would not have argued by pointing out legal vacuum and sought for remanding back of the matter. Moreover, in the present case having peculiar background in which the suit of D3 to D7 was never contested and the interim relief though was granted initially, ultimately rejected forever and there was virtually no effective prosecution of the said suit itself till it was withdrawn, and what was fully contested was only the present suit, the effect of res judicata is completely eclipsed by the factual ground involved as repeatedly mentioned above. At any rate, the entire realm of records was completely analysed by both the courts by their exhaustive and well considered orders to give an emphatic legal and factual finding that the records clearly spell out that the appellants and respondents-1 and 2, who are strangers to the suit property, smartly colluded together to take away the property of the rightful owners/D3 to D7 who are respondents 3 to 7 herein, and on a careful scrutiny, this Court finds not even a single ground including the point of res judicata as held above to upset the well considered orders of the courts below. Therefore, the ultimate substantial question of law is also answered against the appellants.
16. While arguing the Civil Revision Petition, learned senior counsel appearing for the revision petitioners submitted that the lower appellate court committed a serious mistake in rejecting the application filed under Order 41 Rule 27 CPC seeking to receive 9 vital documents viz., ULC Order dated 31.3.1995; Statement dated 14.8.1963 of Subramaniya Iyer before Tahsildar; Order dated 19.10.1963 of Tahsildar granting joint patta in the name of Subramania Iyer, Anantha Narayanan and R2-Santhanalakshmi Ammal; Patta No.139 - Joint patta granted in pursuance to order dated 19.10.1993; Patta in No.159 in respect of S. No.84/1A in the name of Santhanalakshmi Ammal; Patta No.159 issued on 09.05.1994 in pursuance to the order of DRO in the name of R2 Santhanalakshmi Ammal; chitta for fasli 1374-1410; patta No.159, dated 19.12.2001 in favour of R2 Santhanalakshmi in pursuance of the RDO and letter dated 19.10.2001 from the Office of Assistant Land Survey Department for change of SLR extract, even though it was properly explained that these documents were inadvertently omitted to be marked before the trial court and, repeating the mistake committed by the trial court, the court below also refused to accept the bona fide prayer of the revision petitioners, resulting in great prejudice to them. He also added that if the Second Appeal is remitted back to the trial court, he would not press the Civil Revision Petition.
17. Per contra, learned counsel appearing for respondents-3 to 7, strongly objecting to the said prayer, pleaded for dismissal of the Revision Petition by stating that the reasons mentioned in the impugned order for rejecting the prayer of the petitioners to receive the documents mentioned in the petition as additional documents are well founded having regard to the scope of Order 41 Rule 27 CPC. In fact, when defendants-3 to 7, during the pendency of the matter before the trial court, repeatedly issued notices under Ex.B97, B99 and B100 dated 24.08.2005, 06.09.2005 and 12.09.2005, calling upon the revision petitioners for production of various important documents, they deliberately failed to produce any of those documents. Therefore, the trial court was constrained to draw an adverse inference against the revision petitioners for not producing any relevant document despite repeated notices issued by respondents-3 to 7 as mentioned above. Further, the issue raised before the courts below was in respect of establishing the possession over the property and admittedly, when the revision petitioners, who are the plaintiffs, miserably failed to prove by adducing oral and documentary evidence the basic and fundamental requisite that they were in possession right from the date of purchase till the date of filing of the suit or at least the possession of the suit property by their vendors, at this point of time, when concurrent findings have been given based on clear reasonings with logical conclusion, entertaining the revision petitioners' prayer to mark the additional documents is opposed to all the settled legal principles and even otherwise, no useful purpose would be served now by passing orders in this revision petition.
18. I find much force in the arguments advanced by the learned counsel appearing for respondents-3 to 7. When the suit was filed by the revision petitioners as plaintiffs, it was their bounden duty to primarily establish the fact regarding their possession in respect of the suit property. Further, on the fulcrum of the issue regarding execution of the sale deed by D1 and D2 in favour of the revision petitioners herein, when R3 to R7 called upon them by repeatedly issuing three notices as mentioned above, never the revision petitioners had come forward to produce the same and thereby, sadly, they missed the bus. As a result, they suffered dismissal of their suit and such verdict was also confirmed by the lower appellate court. Further, when the courts below consistently found that the revision petitioners had not produced any kist receipt for the period from the date of purchase till the date of filing of the suit and that they also did not file any documentary evidence to prove that their predecessors in interest Krishnarathi Ammal was in possession of the suit property form the date of her purchase on 08.08.1975 from Srinivasa Naicker, who is said to have purchased it from Rangasamy Pillai on 29.02.1959, the prayer made by the petitioners for allowing the revision petition is far away from acceptance.
It must also be mentioned here that Order 41 Rule 27 provides for reception of additional evidence provided if the revision petitioners satisfies the court that, after exercise of due diligence, such evidence was not within their knowledge or could not be produced when the suit was decided against them or the court from whose decree the appeal was preferred ought to have refused to admit the evidence which ought to have been admitted. A perusal of the impugned order in the CRP clearly shows that the court below has considered the case of the petitioners and held that when notices were issued under Exs.B97 to B100 to the revision petitioners for production of various important documents, they repeatedly ignored all the notices. Also, the evidence of PW2 proves that the documents in question and other documents were available with the plaintiffs/revision petitioners and deliberately, the same were not produced before the trial court. Therefore, having failed to produce the documents either voluntarily to well substantiate their case or on demand through legal notices by R3 to R7 to negative the strong claim of the other side, now, there cannot be any justification at all for them to insist for reception of the documents on the ground of inadvertence which is nothing but a mockery and travesty. In this view of the matter, this Court hardly finds any scope to entertain the prayer.
19. In the light of the foregoing reasons, concurrent findings of the Courts below are confirmed. Accordingly, both the Second Appeal and the C.R.P. fail and they are dismissed as devoid of any merit. No costs. Connected Miscellaneous Petitions are also dismissed.
01.10.2012.
Index : yes Internet : yes JI. To 1. V Additional Judge, City Civil Court, Madras. 2. VII Asst. Judge, City Civil Court, Madras. T. Raja, J. Pre Delivery Common Judt. in SA.1458/07 & CRP. (NPD) No.3952 of 2008. 01.10.2012.