Madras High Court
P. Paul James Alias Paulus vs P. Jesudas Cyril And Ors. on 18 January, 1996
Equivalent citations: (1996)1MLJ381, 1996 A I H C 1462, (1996) 1 MAD LJ 375 (1996) 1 MAD LW 437, (1996) 1 MAD LW 437
JUDGMENT S.S. Subramani, J.
1. Plaintiff is the appellant in this second appeal.
2. He filed O.S. No. 179 of 1975, on the file of the Principal District Munsif s Court, Padmanabhapuram, seeking partition of the plaint mentioned properties. He claimed one-fifth share in the suit properties. Items 1 and 2 in the plaint belong to the father of the plaintiff and defendants 1 to 3 and late Stephen Langton. Item 3 belongs to their mother, who is also now no more. It is said that the father executed a settlement deed in favour of his wife, i.e., his (plaintiffs) mother, as evidenced by Ex. A-1 dated 18.4.1942. It is said that on the death of the mother, items 1 to 3 devolved on them along with their father who had a widower estate. Father was also dead on the data of suit and, therefore, the plaintiff claims one-fifth share in the items. It is also averred in the plaint that the plaintiff earlier filed a suit in the District Munsif s Court, Padmanabhapuram as O.S. No. 259 of 1967. That suit was dismissed as settled out of court. But the settlement did not take place and, therefore, the institution of the earlier suit is not a bar for instituting the present suit.
3. In the written statement filed by the defendants 3, 4 and 8, they disputed the right of the plaintiff to claim partition mainly for the reason that he filed earlier a suit in O.S. No. 259 of 1967 and later withdrew the same as settled out of court. According to them, the present suit is barred either on the principle of res judicata or estoppel. They also put forward a contention that some of the items did not belong to their mother. According to them, Ex. A-1 was not acted upon and the same was cancelled by their late father who has executed other documents in favour of his sons. They also put forward a contention on the ground of adverse possession and limitation. These are the common contentions taken by all the defendants. In addition to the same, defendants 4 and 8 have also taken a contention that some of the items were purchased by them f6r valuable consideration and the persons who executed the documents were competent to execute the same, especially when the same were taken after the disposal of the earlier suit.
4. On the above pleadings, the parties went on trial. On the side of the plaintiff, two witnesses were examined as P.Ws. 1 and 2, and Exs.A-1 to A-12 were marked. On the side of the defendants, the third defendant was examined as D.W. 1, and, on their side, Exs. B-1 to B-18 were marked.
5. After consideration of the evidence, both oral and documentary, the trial court held that Ex. A-1 was acted upon and the mother became absolute owner of all the properties, and that any document executed by their father subsequent to Ex. A-1 was not valid. It was also found that there was no question of any limitation or adverse possession since the parties are co-owners and there was also no evidence regarding ouster. It also found that the various documents filed by the defendants did not prove their claim of exclusive possession or extinguishment of co-ownership right of the plaintiff. It also found that the plaintiff is not entitled to any special right as pleaded by them. As regards the consequence of the earlier suit O.S. No. 259 of 1967, the trial court held that the same is not a bar for instituting the present suit, the main reason being that the third defendant who was to pay some amount for the purpose of settling the earlier case, had not paid that amount and they withdrew the settlement unilaterally. It also found that the alleged compromise did not reach fruition and therefore, the provisions of Order 23, Rule 3, C.P.C. cannot have any application. It also found that the suit is not barred by res judicata, since the court did not enter a finding on the merits of the case. A preliminary decree was granted by the trial court. The matter was taken in appeal by defendants 3 and 4 as A.S. No. 59 of 1978, on the file of the Subordinate Judge's Court, Padmanabhapuram.
6. In appeal, the lower appellate court also found that the defendant No. 3 did not pay the amount which he should have paid, for the purpose of settling the case, but held that the remedy of the plaintiff is only to recover the amount by availing the compromise and not by filing a suit for partition as done by the plaintiff.
7. The parties went on issue before the lower appellate court only on the point regardinng the validity or the legal consequences of the filing of O.S. No. 259 of 1967 by the plaintiff. Other matters were not in issue before the lower appellate court and the same were given a finality by the parties.
8. In view of the finding that the recourse of the plaintiff is only to get the amount by proceeding against the defendants to get appropriate reliefs in terms of the settlement arrived at among the parties to the suit out of court, and accordingly the lower appellate court reversed the judgment of the trial court, and dismissed the suit.
9. It is against the dismissal of the suit, the plaintiff has come up in second appeal, before this Court.
10. At the time of admission, the following substantial question of law was raised for consideration in this second appeal:
When there was no adjudication or finding on merits deciding the rights of parties in the prior suit, is the learned Subordinate Judge right in holding that the subsequent suit is barred by res judicata?
11. I may extract the finding of the appellate court in this regard before discussing the law. The relevant portion reads thus:
...But since the suit was dismissed as settled out of court on the strength of an endorsement made by the plaintiffs counsel now the only remedy for the plaintiff is to proceed against the defendants to get appropriate reliefs in terms of the settlement arrived at among the parties to the suit out of court if he is so advised. He cannot definitely get any relief in this suit as this suit is clearly barred by the principles of res judicataby reason of the decision in O.S. No. 259 of 1967. The present suit is not maintainable. This point is answered in favour of the appellants.
The finding is that the suit is barred by res judicata.
12. I have already said that the parties have joined in issue only regarding the consequence of filing of the earlier suit. The right of the plaintiff is as co-ownner and as a legal heir of his parents is not in dispute.
13. In Palani Ammal v. Muthuvenkatachala Moniager and Ors. 48 M.L.J. 83 : A.I.R. 1925 P.C. 49 : 52 I.A. 83 : I.L.R. 48 Mad. 254 : 87 I.C. 333, their Lordships held at page 51 thus:
The fact that any member of a joint family has separated himself from his coparceners may be proved by his suing for a partition of the joint family property, and if the suit is decreed the date of his severance from the joint family will, if nothing else is proved, be treated as the date when the suit was instituted.
In Kedar Nath v. Ratan Singh 20 M.L.J. 900 : (1910) L.R. 37 I.A. 161, a member of a joint Hindu family had filed a plaint claiming a partition, but afterwards had withdrawn it, and the Board held that no severance of the joint status resulted.
Their Lordships see no reason to depart from that view, although such a plaint, even if withdrawn, would, unless explained, afford evidence that an intention to separate had been entertained see Girja Bai v. Sadashiv Dhundiraj 31 M.L.J. 455 and Kawal Nain v. Prabhu Singh 33 M.L.J. 42. In a suit for partition which proceeds to a decree which was made, the decree for a partition is the evidence to show whether the plaintiff from his coparceners or was a separation of all the members of the joint family from each other.
[Italics supplied]
14. In Krishnaswami Naidu and Ors. v. Perumal alias Nammayya Naidu and Anr. 47 M.L.J. 522 : A.I.R. 1925 Mad. 112 : 83 I.C. 84 : 1924 M.W.N. 742, this Court further held thus: (at pages 113 and 114) The principle underlying these cases is that when there is a definite intentionn to divide, that intention should be given effect to; but where, as in this case, the intention has been expressed, but shortly afterwards negatived, by the withdrawal of the partition suit, the mere filing of the suit cannot be deemed to be a sufficient proof of that intentionn in the light of subsequent events. This point was considered in Palaniammal v. Muthuvenkatachala 48 M.L.J. 83 : A.I.R. 1925 P.C. 49 : 52 I.A. 83 : I.L.R. 48 Mad. 254 : 87 I.C. 333, where it was held that it was open to a coparcener who has filed a suit for partition to abandon that intention before the suit proceeds to decree and to continue in a state of jointness. The same view was taken by another Bench of this Court in Vemi Reddi v. Nallanna Reddi 11 L.W. 611, I, therefore, hold that in this case, there was no division in status, effected by the filinng of the prior suit.
15. In V.E.A.R.M. Annamalai Chettiar v. Koothappudayar and Ors. A.I.R. 1934 Mad. 485 : 149 I.C. 273, it was held thus:
In partition suits the power of the plaintiff to withdraw has been limited to this extent, that it can be exercised only till a right in the defendant in the continuance of the suit or its determination in a particular way has been legally created, e.g., by a preliminnary decree or a compromise or agreement or award. This principle is applicable not only to partition suits but to all suits. And unless such right is created in the defendant, he cannot claim to continue the suit on the withdrawal of the suit by plaintiff. Hence, where the shares of some of defendants in a partition suit have vested in official receiver by their insolvency and the plaintiff withdraws his suit before preliminary decree is passed, the Official Receiver cannot apply to transfer him as plaintiff to continue the suit.
16. In the same decision, it was further held thus:
Where a suit for partition is withdrawn before trial, the proceedings do not establish the status of division.
17. In Rajah V. Maheswara Rao v. Rajah V. Rajeswara Rao (1967) 1 M.L.J. 175, the entire case law was considered, and it was held thus:
In a partition action till a preliminary decree has been passed the plaintiff is at liberty to withdraw the suit.
So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, Rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.
18. From the above decisions, it is clear that the rights of parties are recurring causes of action and the plaintiff s right to partition is lost only when his right to property is lost in the sense that his right as co-owner to claim partition is lost. Being a recurring cause of action, the principle of Section 11, Civil Procedure Code cannot have any application. For a bar under Section 11, C.P.C. the suit must be based on the same cause of action. The case cited supra make it clear that even if the suit is withdrawn, the right of the plaintiff to seek partition once again if not last. If that be so, the finding of the lower appellate court that the suit is barred by res judicata cannot stand.
19. The further question to be considered is, whether the filing of the earlier suit and the judgments made thereon bar the present suit.
20. Ex. B-6 is the copy of the plaint in O.S. No. 259 of 1967 and Ex. A-10 is the copy of the judgment in the said suit. In Ex. A-10, after narrating the facts, only one sentence is added, i.e., "suit dismissed as settled out of court". We do not find even the contention raised by the defendants or the issues framed for trial, and what were the terms of settlement. Order 23, Rule 3, C.P.C. provides for the procedure to be adopted when a suit is compromised. It says: "The court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith...." The procedure contemplated under Order 23, Rule 3, C.P.C. is admittedly not followed, for, the terms of compromise are not before court, and there is no decree in terms thereof. The compromise is also not recorded. The judgment of the trial court as seen from Ex. A-10 was only on the basis of an endorsement made by the plaintiff's counsel on the body of the plaint. Even the endorsement does not say anything about the terms of the settlement. It is in evidence that the plaintiff was not in station on the day when the compromise was made, nor when Ex. A-10 judgment was pronounced. It is also in evidence that the third defendant was at Ceylon on the relevant date. According to me, the consequence of the endorsement made by the plaintiff's counsel will only be withdrawal of the suit, that he is not seeking any relief. If that be so, the bar under Order 23, Rule 3, C.P.C. cannot have any application. Provisions of Order 23, Rule 1, C.P.C. also may not apply for the suit which is not based on the same cause of action.
21. In this connection, it is worthwhile to have a reference to the passage reported in Manappa Manikappa Sheded and Ors. v. Bhaskharappa A. Bhasana and Ors. A.I.R. 1978 Karn. 113. In paragraph 6 of that judgment, we have got details of the settlement, and in that case also, a joint memo was filed by the advocates which reads thus:
The plaintiffs and defendants in this case request the court to dismiss the suit without order as to costs as the parties have amicably settled the dispute between them out of court.
The suit was dismissed. The court did not record the compromise, nor was it made aware as to the terms thereof. The compromise was only to get the suit dismissed. Considering the same, the Karnataka High Court held thus:
I am unable to agree with that view. (The lower court has found that the suit is barred). It is doubtful whether such an Order would fall under Order 23, Rule 3 of the Civil P.C. as the court had not recorded any such compromise....
22. In this connection, it is also worthwhile to refer to the decision of this Court reported in Athappa Gounder and Ors. v. Periasami Gounder . The duty of court while recording a compromise was considered by this Court elaborately. For the purpose of convenience, I am extracting the contentions pur forward by the counsel in that case and how this Court dealt with the same. The relevant portion of the said decision reads thus:
Mr. K.S. Desikan, for the petitioners in the civil revision petitions and Mr. S. Ramachandra Iyer for the plaintiff-respondent, Periaswami Goundan, argued the case fully, as a very important point is involved. Both of them admitted before me that, in all their experience, they had not come across such a compromise (without the signature of the parties or advocates in the alleged compromise, and with a wrong recital of payment as already made) as was sought to be proved and recorded in these two I.As.
But Mr. Ramachandra Aiyar stated that this was only because advocates use their wisdom and prudence, and generally do not ask for recording such compromises. But what about courts? They have to be cautious in such matters, where cantankerous parties are involved, and where they are empowered to record a compromise and pass decrees under Order 23, Rule.3, Civil P.C. only when the compromise is proved to their satisfaction (the trial courts are meant primarily) to be true and complete, and the matter to have been really adjusted.
Usually, the compromise is embodied, with all the terms, in a document signed by all the parties and their advocates, and a petition is filed to record the compromise and pass a decree in terms of the compromise, and the judge has the compromise read out in open court, and the parties admit the terms to be correct, and then the compromise is recorded, and a decree is passed in terms of the compromise. That method is not only the safest, but is also the very best. If inchoate negotiations are treated as adjustments there will be no end to the peril to the parties who negotiate.
Courts, which have got paid judges, have usually to decide the suits themselves, whatever the trouble, unless they clearly come to the conclusion that the parties have knowingly and willingly entered into a compromise and adjusted the matter, or atleast their advocates have done so, taking the responsibility on themselves, by virtue of the power given to them in their vakalats. Legally, no doubt, there is no bar to the parties agreeing to a compromise and an adjustment even orally, and proving it, but it is obvious that proof in such cases will be very difficult, especially when the parties contesting it appear almost immediately before the court and deny it, and oppose a decree in terms of the compromise, as here. Very few courts will be disposed to act on such an alleged oral compromise between the parties and pass decrees in terms thereof, in such cases. Though it is legally possible that a suit is compromised or adjusted orally between all the parties to it, willingly and knowingly, and that some of the parties may go back on the adjustment the very next moment, and deny having agreed at all, very few courts will be disposed to believe that story of the adjustment and its repudiation unless it is proved beyond all reasonable possibility of doubt. It is obvious that the trial court judgment rejecting an alleged oral compromise should never be disturbed unless it is palpably perverse, which it certainly was not in this case.
23. In Subba Rao v. Jaganadha Rao , their Lordships considered the question of a compromise decree and how far the same bars a party from reagitating the same. The relevant portion of the said decision reads thus:
A compromise decree is not a decision by the court. It is the acceptance by the court of something to which the parties had agreed. A compromise decree merely sets the seal of the court on the agreement of the parties. The court does not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court can be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as decision on a matter which was heard and finally decided and cannot operate as res judicata. Such a decree might create an estoppel by conduct between the parties, but such an estoppel must be specifically pleaded." That is a case where the terms of the compromise were recorded. In spite of the same, their Lordships said that at the most the terms would amount to estoppel and not res judicata.
24. Now, on the basis of the principles of law enunciated, let us consider how far the present plaintiff is debarred from instituting the suit.
25. It is in evidence that the plaintiff was in Ceylon at the time when the plaintiff's counsel made the endorsement. It is admitted by the plaintiff .while he was examined as P.W. 1 that before he went to Ceylon after instituting the earlier suit, advocates who were representing various parties in that litigation wanted the matter to be settled. P.W. 2 was one of the advocates who was interested in settling the matter. Third defendant's brother-in-law, who is an advocate at Nagercoil, by name Rajiah, also wanted the matter to be closed. On the mediation of the various advocates, it is said that the third defendant agreed that the plaintiff will be given his share or its value which was quantified at Rs. 2,000. It is said by the plaintiff that the amount was not paid and the arrangement was that the third defendant will pay the same as and when they met either in Ceylon or in their native place. As against the said version, the third defendant put forward a case that the plaintiff withdrew the suit on being satisfied that the suit could not be maintained. But he agreed that he will pay Rs. 1,000 towards the expenses which the plaintiff had spent for litigation. The above terms were not put into writing, and we have only the rival submissions between the parties. But one thing is clear, namely, that there was a reciprocal promise between the third defendant and the plaintiff that the third defendant will pay a sum of Rs. 1,000 being the expenses incurred by the plaintiff for withdrawing the suit, based on the contract. Both the courts below have concurrently found that the third defendant has not paid that amount.
26. It is also in evidence and also found by both the courts below that the plaintiff has not received any consideration for relinquishing his claim.
27. When the advocates mediated the case, probably, believing the third defendant, the plaintiff might have instructed his advocate to withdraw the suit as settled out of court. He had to leave India immediately, and he did not even wait for the final verdict of the court. That is why he was not available even for signing the memo of compromise or even in the endorsement made by the advocate.
28. When the plaintiff believed the representation of the third defendant and acted on the same by withdrawing the suit, the third defendant has really cheated him by withdrawing himself from the compromise. He (third defendant) cannot be heard to say that the plaintiff has lost his right over the property. He has really played a fraud on the plaintiff. The court was also to believe and act on the representation of the third defendant. If that be so, is it not a case of fraud which disentitles the defendants from taking a defence in this case that the plaintiff is not entitled to any share? I feel that Ex. A-10 judgment itself is effaced and is of no consequence once the plaintiff proves that fraud had been committed by third defendant. The third defendant had taken undue advantage by his representation that there was a compromise. He should not be allowed to take advantage of his own fraud. It vitiates every act including Ex. A-10. There cannot be any res judicata when the order was obtained by exercising fraud. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (died) by L.Rs. and Ors. (1994) 1 S.C.C. 1, their Lordships held thus:
The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be challenged in any court even in collateral proceedings.
29. Even if we take Ex. A-10 judgment as one passed on merits, it is non est in the eyes of law and the same can be ignored.
30. In the earlier portions of this judgment, I have held that a suit for partition is a recurring right and unless his right of co-ownership is lost, the plaintiff has the liberty to institute any number of suits. In this case, the court has not recorded any compromise. The decision in Ex. A-10 was obtained by misrepresentation and fraud. It is non est in the eyes of law. The decision of the lower appellate court that the suit is barred by res judicata and that the remedy of the plaintiff is only to enforce the compromise and recover money from the third defendant cannot be sustained. I set aside the same.
31. In the result, the second appeal is allowed, reversing the judgment of the lower appellate court. The judgment of the trial court is restored. The suit is decreed as prayed for with costs throughout.