Madras High Court
Pandurangan vs R.Jayarama Chettiar on 20 March, 2019
Author: C.Saravanan
Bench: C.Saravanan
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 08.03.2019
Pronounced On 20.03.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(PD).No.1454 of 2014
and
M.P.No.1 of 2014
Pandurangan ... Petitioner
Vs.
1.R.Jayarama Chettiar
2.Selvi ... Respondents
PRAYER: Civil Revision petition is filed under Article 227 of the Constitution
of India, to set aside the fair and decretal order dated 27.01.2014 in
I.A.No.12 of 2010 in O.S.No.60 of 2009 on the file of District Munsif Cum
Judicial Magistrate, Portonovo.
For Petitioner : Mr.T.Sezhian
For Respondents : Mr.D.Baskar for R1
R2 - given up
http://www.judis.nic.in ORDER
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The petitioner is aggrieved by the fair and decretal order dated
27.01.2014 passed in I.A.No.12 of 2010 in O.S.No.60 of 2009 passed by
the District Munsif cum Judicial Magistrate Portonova.
2.By the impugned order the lower court has allowed the application
filed by the first respondent seeking to reject the plaint on the ground of
res judicata under Section 11 of CPC read with Order 9 Rule 13 of CPC.
3.The petitioner was a purchaser of the property from the second
respondent herein after a preliminary decree was passed in O.S.No.298 of
1996 in respect of land which is the subject matter of the suit in
O.S.No.60 of 2009. The petitioner filed O.S.No.60 of 2009 against the
respondents for the following relief:
“To pass an order in favour of plaintiff and as
against the defendants a decree declaring
plaintiff's absolute title to the suit property, and for
consequential permanent injunction restraining the
1st defendant from in any manner interfering with
plaintiff's possession and enjoyment of the suit
property, for costs of the suit and for such further
and other relief.”
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4.In the plaint, the petitioner has pleaded that the preliminary
decree in O.S.No.298 of 1996 was not binding on him as it was collusive
decree. Therefore, he was not precluded for filing a fresh suit for declaring
his rights over the property.
5.The first respondent filed the above application stating that the
suit was barred under law and therefore is liable to be dismissed. The
petitioner on the other hand stated that he was not a party to the said suit
and that since the preliminary decree was obtained by the first respondent
by exercising fraud on the Court, it is not binding. It was further submitted
that the purchase of land by him was not be hit by the doctrine of lis
pendens for the same reason and therefore there was no bar on the court
to decide the dispute.
6.The court below concluded that the defences raised by the
petitioner in the said application were untenable as the purchase has been
made after a preliminary decree was passed in O.S.No.298 of 1996 and
since the petitioner was claiming title to the property through the second
respondent who was a party to O.S.No.298 of 1996. Aggrieved by the
order the petitioner has filed the present Civil Revision Petition.
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7.Heard the learned counsel for the petitioner and the respondent.
The learned counsel for the petitioner referred the decision of this Court in
Nagomi vs Evangeline 2018 (6) CTC 189 income 100. where in the facts
of the case court held that the suit was not barred by the Principle of Res
judicata in the peculiar facts of the case.
8.The decision rendered in the above case is not relevant to the
facts of the case. In that the case, the plaintiff had originally filed in
O.S.No.115 of 1990 and had sought for declaratory relief against the first
defendant.
9.However, the first defendant who had created obstruction had
voluntarily removed the obstruction. Therefore, the suit had become
infructuous. There was no discussion or finding rendered on merits. The
court therefore did not give any finding on the issue of declaration of title
and therefore no finding rendered over the title in the originally suit filed
in O.S.115 of 1990.
10.The Court therefore held that since the suit was dismissed that
rendering without specific finding on the relief claimed between the
parties, cannot come in the way filing a fresh suit. Under those
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circumstances, the Court held that the subsequent suit would not be
barred by as res judicata.
11.Therefore, the order of the lower Court does not warrant
interference. However, this is not case in the present case. Remedy
available to the petitioner is to ask for refund of the amount from
respondents instead of filing the suit to declare title over property which
was transferred after the preliminary decree was passed in O.S.NO.298 of
1996.
12.In this context the decision of the Hon'ble Supreme Court in
Saroja vs Chinnusamy (Dead) by L.R.S and another in (2007) 8 SCC
329 is relevant. The Court held as follows:
13.The Hon'ble Supreme Court distinguished the decision rendered
in A.S.Mani vs Udipi Hari Niwas. (1996) 1 Mad LJ 171 and affirmed the
views in Arukkani Ammal vs Guruswamy (1987) 100 LW 707. This
Court had held as follows:
"It is also difficult to appreciate the view taken by
the District Munsif that ex parte decree cannot be
considered to be 'full decree on merits'. A decree
which is passed ex parte is as good and effective
as a decree passed after contest. Before the ex
http://www.judis.nic.in parte decree is passed, the court has to hold that
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the averments in the plaint and the claim in the
suit have been proved. It is, therefore, difficult to
endorse the observation made by the Principal
District Munsif that such a decree cannot be
considered to be a decree passed on merits. It is
undoubtedly a decree which is passed without
contest; but it is only after the merits of the claim
of the plaintiff have been proved to the satisfaction
of the trial court, that an occasion to pass an ex
parte decree can arise."
14.In paragraph 16, the Hon'ble Supreme Court held as follows:
“We are in full agreement with this view of the
Madras High Court holding that a decree which is
passed ex parte is as good and effective as a
decree passed after contest. A similar view has
also been expressed by a Division Bench of the
Allahabad High Court in the case of Bramhanand
Rai Vs. Dy. Director of Consolidation, Ghazipur
[ AIR 1987 All 100]. However, the learned counsel
for the appellant relying on a decision of the
Madras High Court, namely, A.S.Mani (deceased)
by L.Rs. Thirunavukkarasu & Ors. Vs. M/s.Udipi
Hari Ni was represented by Partners & Ors. [1996
(1) Madras Law Journal 171] invited us to hold
that the principle of res judicata would not apply
as the former suit was decided ex parte. This
decision, in our view, is distinguishable on facts. In
that decision, the observation that the ex parte
decree shall not operate as res judicata was made
on the basis that the earlier petition which was
filed for eviction against the tenants was dismissed
only on technical grounds, and after keeping this
fact in mind only, the Madras High Court held that
the ex parte decree would not operate as res
judicata inasmuch as the petition was not heard
and finally decided as contemplated in Section 11
of the CPC. Therefore, in our view, since condition
No. (iv), as noted herein before, was satisfied, we
hold that the principles of res judicata would be
applicable in the present case as held by the First
Appellate Court and also affirmed by the High
Court.”
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15.In view of the above decision of the Hon'ble Supreme, the
observations in the impugned order passed by the lower court does not
warrant interference. However, liberty is given to the petitioner to recover
the amount from the vendor purchase of the property and recover the
amounts in accordance with law by amending the relief in the suit for
recovery of the amount. If advised, the petitioner may amend the prayer
for such relief in the suit within a period of four weeks from the date of
receipt of a copy of this order. Therefore, the suit is restored to file of the
court for the aforesaid purpose alone to facilitate the petitioner to amend
the plaint. If the petitioner amend the plaint, the respondents shall file
their written statement within four weeks thereafter.
16. The present Civil Revision Petition is dismissed with above
observations. No costs. Consequently, connected Miscellaneous Petition is
closed.
20.03.2019
Index :Yes/No
Internet :Yes/No
jen
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C.SARAVANAN, J.
jen To
1.The District Munsif Cum Judicial Magistrate, Portonovo.
2.The Section Officer, VR Section, High Court, Madras.
Pre-delivery order in C.R.P.(PD).No.1454 of 2014 and M.P.No.1 of 2014 20.03.2019 http://www.judis.nic.in