Madras High Court
Kairunnisa Begum vs B.N.Sreedhara Murthy on 11 January, 2013
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 11.1.2013. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(PD)No.2540 of 2012 1. Kairunnisa Begum 2. A.Mohammed Ishaq 3. A.Mohammed Saleha 4. A.Mohammed Ismail 5. A.Rehana Begum 6. A.Mohammed Imthiyaz 7. A.Mohammed Kalkuzama 8. A.Mohammed Kizar Petitioners vs. 1. B.N.Sreedhara Murthy 2. Razia Begum 3. A.Mohammed Hayathuzama Respondents Civil Revision Petition to strike off the plaint in O.S.No.85 of 2012 on the file of the Subordinate Court, Hosur. For petitioner : Mr.V.Raghavachari For R1 : Mr.S.Duraisamy ORDER
Defendants 2 to 7, 9 and 10 are the revision petitioners.
2. Respondent/plaintiff filed the suit in O.S.No.85 of 2012 on the file of the Sub Court, Hosur for declaration of title to the suit property and this revision is filed invoking Article 227 of the Constitution of India to strike off the plaint on the ground that it amounts to a re-litigation and it is a clear case of abuse of process of court.
3. Mr.V.Raghavachari, learned counsel appearing for the revision petitioners submitted that having regard to the allegations made in para 9 of the plaint, it is clearly admitted by the respondent/plaintiff that the suit property was the subject matter in O.S.No.59 of 1996 filed by one Ayub Sahib against the present plaintiff/first respondent herein and his uncle for declaration of his title to the suit property and that suit was transferred to the District Munsif, Hosur and re-numbered as O.S.No.279 of 1996 and the present plaintiff/first respondent herein was the defendant in that suit and a decree was passed against the present plaintiff/first respondent herein and the title of Ayub Sahib, who was the plaintiff in that suit, was declared and the same was confirmed in A.S.No.9 of 2000 on the file of the Sub Court, Hosur and also confirmed in S.A.No.1996 of 2003 on the file of this court and therefore, having regard to the judgments rendered in O.S.No.279 of 1996 in A.S.No.9 of 2000 and S.A.No.1996 of 2003, the present suit filed by the first respondent amounts to re-litigation and it is a clear abuse of process of court and such suit cannot be allowed to be entertained. He also relied upon the judgment in LAKSHMI v. PRASANNA MANI (2011 (2) MNW (Civil) 363) and the judgment in TAMIL NADU HANDLOOM WEAVERS' CO-OPERATIVE SOCIETY v. S.R. EJAZ REP BY HIS POWER AGENT, MURALIDHAR T.BALANI (2009 (5) CTC 710 = 2009 (5) LW 79) and submitted that having regard to the specific admission made by the first respondent/plaintiff in the present suit, he is not entitled to the relief of declaration and it is a clear case of abuse of process of court. He further submitted that though the Honourable Supreme Court passed an order permitting the first respondent/plaintiff to file a separate suit, to establish his rights, that will not give rise to another cause of action to file a fresh suit when the suit for declaration is clearly barred by res judicata and decided in the earlier round of litigation.
4. On the other hand, the learned counsel for the first respondent submitted that the revision filed by the revision petitioners to strike off the plaint is not maintainable and as per the leave granted by the Honourable supreme Court permitting the first respondent/plaintiff to file a separate suit to establish his rights, the suit was filed for declaration and therefore, the plaint cannot be struck off at this stage. He further submitted that the revision filed by the revision petitioners without enclosing the copies of the judgments rendered in O.S.No.279 of 1996, A.S.No.9 of 2000 and S.A.No.1996 of 2003 is also not maintainable as the court cannot go into the factual aspects in the absence of those documents and whether a suit is barred by res judicata or not can be considered only during trial and it cannot be decided in the revision filed under Article 227 of the Constitution of India. He, therefore, submitted that the revision is liable to be dismissed.
5. In the judgment reported in M.V.JAYAVELU v. E.UMAPATHY (2010-5-LW 748), after relying upon the judgment of the Honourable Supreme Court reported in AZHAR HUSSAIN v. RAJIV GANDHI (1986 (SUPP) SCC 315), I held as follows:-
"The provisions of Order 7 Rule 11 are not exhaustive and the Court has got inherent powers to see that the vexatious litigations are not allowed to take or consume the time of the Court. In appropriate cases, directions can be given by this Court as well as the Court in which the suit is filed not to entertain the suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law."
6. In the judgment reported in 1986 (SUPP) SCC 315, the Honourable Supreme Court held as follows:-
"Learned Counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substances, the argument is that the Court must proceed with the trial record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the respondent. The word of Damocles need not be kept handing over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law"
7. In the judgment reported in 2011 (2) MWN (CIVIL) 363, the learned Judge of this court elaborately dealt with the question relating to abuse of process of court and after relying upon the decision reported in K.K.MODI v. K.N.MODI (1998 (3) SCC 573), RANIPET MUNICIPALITY, REP BY ITS COMMISSIONER AND SPECIAL OFFICER, RANIPET v. M.SHAMSHEERKHAN (1998 (1) CTC 66) and TAMIL NADU HANDLOOM WEAVERS' CO-OPERATIVE SOCIETY v. S.R. EJAZ REP BY HIS POWER AGENT, MURALIDHAR T.BALANI (2009 (5) CTC 710 = 2009 (5) LW 79), held that revision filed to strike off the plaint without filing application under Order VII Rule 11 when it is a clear case of abuse of process of law and when the present suit is a clear attempt of re-litigation is maintainable.
8. In the judgment reported in K.K.SWAMINATHAN v. SRINIVASAGAM (2003 (4) CTC 347), this court held that one of the most abuse of process of court is re-litigation and it is contrary to justice to re-litigate the same issue which has already been tried and decided earlier against a person. Therefore, we will have to see whether the present suit amounts to re-litigation and it is a clear abuse of process of court.
9. As stated supra, admittedly, one Ayub Sahib filed O.S.No.59 of 1996 against the first respondent herein who is the plaintiff in the suit and his uncle for a declaration of his title to the suit property having an extent of 28 feet east west and 5 feet north south and it is also admitted that the suit property is inclusive of the suit property mentioned in that suit. In the present suit, the extent of the suit property is 10 feet east west and 5 feet north south. That suit was transferred and renumbered as O.S.No.279 of 1996 and the suit was decreed and Ayub Sahib was declared as owner of the property and while declaring the title of the plaintiff in that suit viz., Ayub Sahib, the Trial Court negatived the relief of injunction on the ground that the present plaintiff was in possession and enjoyment of the property. Therefore, in O.S.No.279 of 1996, the title of Ayub Sahib was declared and the claim of the plaintiff viz., the first respondent herein claiming title was negatived and injunction prayed for by Ayub Sahib was negatived on the ground that he was not found to be in possession of the property and the present plaintiff was found to be in possession of the property. The appeal filed against the decree in O.S.No.279 of 1996 in A.S.No.9 of 2000 was dismissed and S.A.No.1996 of 2003 also dismissed. The respondent herein challenged the judgment and decree made in S.A.No.1996 of 2003 before the Honourable Supreme Court in C.C.No.7770 of 2012 and that was also dismissed. However, the Honourable Supreme Court observed that the petitioner, if so advised, may file a separate suit for establishing his rights. This was taken advantage of by the respondent to file a separate suit on the ground that the Honourable Supreme Court granted liberty to the respondent to file a separate suit to establish his right and therefore, the suit is maintainable.
10. According to me, the submission of the learned counsel for the first respondent/plaintiff has to be rejected. The observation of the Honourable Supreme Court cannot be construed as a right given to the respondent/plaintiff to file a fresh suit for declaration of his title. As stated supra, in the earlier suit in O.S.No.279 of 1996, the title of Ayub Sahib was declared and the relief of injunction was negatived on the ground that the plaintiff in O.S.No.279 of 1996 was not found to be in possession of the suit property. Therefore, even assuming that the first respondent/plaintiff was found to be in possession of the property, he cannot pray for declaration of title to the suit property in the absence of any pleading to the effect that he has perfected title by adverse possession. Further, as per the observation of the Honourable Supreme Court, the first respondent/plaintiff may be entitled to protect his possession only by due process of law and the observation will not give any right to the plaintiff/first respondent herein to file a suit for declaration of title as the title was already declared in favour of Ayub Sahib from whom the revision petitioners claim title. Therefore, it is a clear case of re-litigation and abuse of process of court and hence, the revision is maintainable.
In the result, the revision is allowed and the plaint in O.S.No.85 of 2012 is ordered to be struck off from the file of the Subordinate Court, Hosur. No costs.
11.1.2013.
Index: Yes.
Internet: Yes.
ssk.
To
1. The Subordinate Judge, Hosur.
2. The Record Keeper, V.R. Section, High Court, Chennai.
Note to office:
Issue a copy of this order on 18.1.2013.
B/o.
sd.
11.1.2013.
R.S.RAMANATHAN, J.
Ssk.
P.D. ORDER IN C.R.P.(PD) No.2540 of 2012 Delivered on 11.1.2013