Madras High Court
Dr. S. Jayakumar And P. Subbiah Gounder vs K. Kandasamy Gounder S/O. Kuppanda ... on 15 June, 2005
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Civil Revision Petition is directed against the order dated 12.06.2000 passed by the Subordinate Judge, Udumalpet in I.A. No. 168 of 2000 in O.S. No. 278 of 1999, dismissing the Petition filed under Order XXIII Rule 1(4) C.P.C. The Defendants are the Revision Petitioners.
2. The Suit Property relates to Four Items of Properties in Chinnampalayam Village, Pollachi Taluk.
3. Case of the Respondent / Plaintiff is that Plaint "A and B Schedule" properties were the absolute properties of Plaintiff's Mother Krishnammal. She was in exclusive possession and enjoyment of the suit properties. The Plaintiff, D-1 and D-5 are the Son and Daughters of the said Krishnammal. Out of her love and affection, Krishnammal had executed the Settlement Deed on 22.04.1958 settling the properties in favour of the Plaintiff. Thereafter, the Plaintiff was in possession and enjoyment of the "B Schedule" settled property. The Plaintiff was working in Cheran Transport Corporation, Pollachi and was unable to look after the suit property. Hence, the Plaintiff and his Mother have leased out the entire suit property to Fourth Defendant. The Plaintiff was maintaining his Mother and he was receiving the rent from the Fourth Defendant. The Plaintiff's Mother died on 15.03.1970 leaving the Plaintiff, Mylathal and Valliammal as her legal heris. The Plaintiff is entitled to 1/3 share in "A Schedule" property.
4. The Plaintiff has filed number of litigations claiming his share in "A Schedule" properties and asking his Title to Plaint "B Schedule" property. O.S. No. 278 of 1999 is the third round of litigation between the parties. For better appreciation, all the contentious points urged by the parties, it is necessary to trace the previous litigations.
(i) O.S. No. 394 of 1990 : The Respondent / Plaintiff Sub-Court, Udumalpet has filed this Suit against (1) Mylathal (2) Jayakumar (3) Subba Gounder (4) Palani Gounder (5) Valliammal. The Suit has been filed by the Plaintiff for
(a) declaring the Plaintiff's title to the suit Plaint "B" schedule property and direct the fourth Defendant to deliver possession of the Suit schedule property to the Plaintiff;
(b) Partitioning the A Schedule property in to three equal shares allot and give separate possession of one such share to the Plaintiff;
(c) restraining the fourth defendant permanently from delivering the possession of the suit property to the Defendant 1 to 3 and For other reliefs.
(ii) I.A. No. 979 of 1993:- The Suit in O.S. No. 394 of 1990 was dismissed for default on 15.03.1993. Plaintiff Kandasamy filed I.A. No. 979 of 1993 to restore the Suit on 02.04.1993. This I.A. No. 979 of 1993 was allowed on terms on 16.06.1994 with a condition that Mr. Kandaswamy should pay a cost of Rs. 250/- to the Respondents (Dr.S.Jayakumar and Sri Subbiah Gounder) on or before 05.07.1994 failing which the petition shall stand dismissed. Mr. Kandaswamy did not pay any cost. Hence, I.A. No. 979 of 1993 stood dismissed, resulting in the non-restoration of O.S. No. 394 of 1990.
(iii) O.S. No. 278 of 1999 Nine years after the Sub-Court, Udumalpet :- Suit in O.S. No. 394 of 1990, the Plaintiff Kandasamy filed this Suit against (1) Dr. S.Jayakumar (2) Subbiah Gounder (3) Mylathal and (4) Palani Gounder.
This suit has been filed for :-
(a) division of Plaint-A Schedule Property into two equal shares and put the Plaintiff in possession of one such share;
(b) declaring the right and title of Plaintiff to Plaint-B Schedule Property and for possession thereof;
(c) granting mesne profits from the date of suit till delivery of possession. and For other reliefs.
(iv) I.A. No. 168 of 2000:- This Application has been filed under Order XXIII Rule 1(4) C.P.C. The Defendants have filed this Petition to reject the Plaint in O.S. No. 278 of 1999. In the supporting affidavit, the Defendants have averred that O.S. No. 394 of 1990 stood dismissed resulting in non-restoration of the Suit in view of non-payment of the conditional cost ordered in I.A. No. 979 of 1993. Without disclosing the same the Plaintiff has filed the Suit in O.S. No. 279 of 1999 for the same relief as prayed for in O.S. No. 394 of 1990. Such filing of the second suit is nothing but abuse of process of law. The Plaintiff has no right in the suit properties and his intention is only to harass the Defendants and hence, the Defendants 1 and 2 prayed for rejecting the Plaint in O.S. No. 278 of 1999.
(v) The Application was resisted by the Respondent / Plaintiff stating that there is no suppression of filing of O.S. No. 394 1990. The Plaint paragraphs 9 and 10 deal with O.S. No. 394 of 1990 setting out the case of the Plaintiff. The Plaintiff did not abandon the earlier suit and hence, the Petition filed under Order XXIII Rule 1(4) C.P.C. is not maintainable. The Suit is one for partition. The partition claim subsists notwithstanding the dismissal of the earlier suit for default. The Tenant who is in occupation of the Suit property in relation with Defendants 1 and 2 has surrendered his right adversely affecting the right of the Plaintiff. Hence, the Plaintiff was constrained to file the fresh suit for partition. The Claim for rejection of the Plaint at the earlier stage is not substantiated by provisions of law.
5. Upon consideration of the submissions of both sides, learned Subordinate Judge, Udumalpet has found that only on final determination, the question of maintainability of suit can be gone into and that the same cannot be urged to reject the Plaint. It has been further held that the Defendants have opportunity of setting forth the defence plea "Estoppel" and "Resjudicata" by filing the Written Statement. Without filing the Written Statement and without going into the merits of the case, the Defendants cannot seek for rejection of the Plaint.
6. Aggrieved over the dismissal of the Petition in I.A. No. 168 of 2000, Defendants 1 and 2 have preferred this Revision. Learned Senior Counsel Mr. Sampath Kumar appearing for the Revision Petitioners has submitted that O.S. No. 278 of 1999 is the culmination of long drawn litigation and that the same cannot be allowed on record. Tracing the history of earlier litigation and contending that the Plaint is to be struck off, learned Senior Counsel has inter-alia raised the following submissions:-
Order IX Rule 9 C.P.C precludes filing of fresh suit in respect of the same cause of action. Reliance has been placed in A.I.R. 1965 S.C. 295.
Order XXIII Rule 1(4) C.P.C precludes the Plaintiff in bringing a fresh suit refering to the same subject matter.
When the relief and the cause of action are one and the same, the Suit is to be struck off. Reliance is placed upon the decision reported in 1998 (2) C.T.C. 474.
Learned Senior Counsel has drawn the attention of the Court to the cause of action and the Schedule of Properties and contended that the Suit in O.S. No. 278 of 1999 is nothing but replication of earlier suit and that the Plaint in O.S. No. 278 of 1999 is to be struck off.
7. Countering the arguments, learned counsel for the Respondent / Plaintiff has submitted that Order XXIII Rule 1 C.P.C. deals with the withdrawl and adjustment of the Suit. It is further contended that Order XXIII Rule 1(4) C.P.C has no application to partition suits. In support of his contention, learned counsel for the Respondent relied upon the decision reported in A.I.R. 1935 MADRAS 909 and 1967 (I) M.L.J 175. Further, placing reliance upon A.I.R. 1926 MADRAS 1018 and A.I.R. 1935 MADRAS 458, learned counsel has submitted that the embargo under Order IX Rule 9 C.P.C is not applicable to Partition Suits. It is submitted that in any event, such bar which may be pleaded in the Written Statement, the defence plea cannot be invoked in the initial stage to reject the Plaint.
8. Reiterating the findings of the lower Court, learned counsel has submitted that the learned Subordinate Judge has rightly dismissed the applications and that the impugned order does not suffer from any infirmity warranting interference. Upon consideration of the submissions by both parties, the impugned order and the pleadings of both the sides and other materials on record, the following points arise for consideration in this Revision:-
(a) Would not the dismissal of the Suit under Order IX Rule 8 C.P.C would operate as a bar in bringing a fresh suit?
(b) Is not the Plaintiff precluded from filing a fresh suit in view of Order XXIII Rule 1(4) C.P.C?
(c) In the facts and circumstances of the case, whether the Plaintiff is right in contending that the bar under Order IX Rule 9 and Order XXIII Rule 1(4) C.P.C is not applicable to partition suits?
(d) Whether the lower Court was right in dismissing the petition finding that the plea of "Estoppel" and "Resjudicata" could be raised as defence plea in the Written Statement?
9. O.S. No. 394 of 1990 filed for Declaration and Partition of "A Schedule" property in S.F. No. 105 was dismissed for default on 15.03.1993. I.A. No. 979 of 1993 filed by the Plaintiff to restore the suit was allowed on terms on 16.06.1994 with condition that the Plaintiff Kandaswamy should pay cost of Rs. 250/- to the respondents. Because of non-payment of conditional cost, the Application in I.A. No. 979 of 1993 was dismissed. Hence, the decree and dismissal of the suit in O.S. No. 394 of 1990 has become final. This being the position would not the bar under Order IX Rule 9 C.P.C preclude the filing of fresh suit would apply to the case is the main point involved in this Revision Petition.
10. Order IX Rule 9 C.P.C. precludes a second suit in respect of the same cause of action where the First Suit has been dismissed for default - non-appearance of the Plaintiff. The relevant part of Order IX Rule 9 C.P.C reads thus:
"...Where a suit is wholly or partly dismissed under Rule 8, the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action..."
Now, the contention of the Revision Petitioner / Defendants is that Order IX Rule 9 bars the Plaintiff from filing the second suit.
11. To apply the bar under Order IX Rule 9 C.P.C., the following essential conditions are to be satisfied:
i. The Plaintiff must be the same; and ii. Cause of action must be identical.
Dismissal under Order IX Rule 9 precludes the fresh suit on the same cause of action. As to identity of the cause of action, the workable test is whether the subject matter is the same and whether the same evidence would support the claim in both the suits. Considering the test and explaining the term "cause of action", in the decision reported in Suraj Rattan Thirani and Ors. .v. Azamabad Tea Co. Ltd. (A.I.R. 1965 S.C. 295) the Supreme Court has held "...In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is "are the causes of action in the two suits in substance and not technically identical". Thus, the term "cause of action" is to be construed with reference rather to the substance than to the form of action.... Held applying this test that the essential bundle of facts, in the subsequent suit, on which the Plaintiffs based their title and their right to relief were identical to the facts in the previous suit which was dismissed under Order 9 Rule 8 C.P.C...."
12. Applying the above principles, if we consider the plaint averments in both the suits, we may find that the property, parties and the cause of action in both the suits are in substance identical. Both the suits relate to same Items of Properties:-
S. No. 105 - 1.45 acres / 1.93 acres S. No. 106 - 2.74 acres / 3.65 acres S. No. 107 - 0.37 acres / 5.61 acres S. No. 107 - 4.25 acres / 5.61 acres
13. Both the suits refer to the same cause of action viz., Settlement deed in favour of the Plaintiff dated 22.04.1958 executed by Krishnammal and denial of Plaintiffs title by his Sisters Mylathal and another. By a careful consideration of the cause of action, it is clear that the cause of action in both the suits are identical. Further cause of action alleged in 1998 in O.S. No. 278 of 1999 is very slender and would not substitute the case of the Plaintiff that a fresh cause of action has arisen to file a fresh suit. The Plaintiff cannot contend that fresh cause of action has arisen in view of handing over of possession by the Tenant to the Defendants 1 and 2 after the conclusion of the suit in O.S. No. 954 of 1992. Learned Senior Counsel is right in submitting that the cause of action in both the suits are one and the same and the bar under Order IX Rule 9 precludes the filing of a fresh suit.
14. Where the Plaintiff abandons or withdraws his claim, Order XXIII Rule 1(4) C.P.C operates as a bar for filing a fresh suit. Order XXIII Rule 1(4) reads thus:
"Where the Plaintiff:-
(a) abandon any suit or part of claim under sub-rule(1) or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.."
15. Bar of Order XXIII Rule 1(4) C.P.C to bring a fresh suit in respect of the same subject matter applies when the suit is abandoned or withdrawn. Since the suit in O.S. No. 394 of 1990 was dismissed for default construing "dismissal for default" as abandoned, the Defendants 1 and 2 have perhaps filed the petition under Order XXIII Rule 1(4) C.P.C instead of Order IX Rule 9 C.P.C. It cannot be contended that Order XXIII Rule 1 C.P.C which deals with withdrawl and adjustment of suits has no application to the case in hand.
16. To invoke the bar under Order XXIII Rule 1(4)C.P.C. both the suits must relate to the same subject matter. The expression subject matter has a reference to a right in the property. The expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is the same as in the First Suit. As discussed earlier, in this case the property and subject matter of both the suits and the cause of action are substantially the same. Hence, the bar under Order XXIII Rule 1(4) C.P.C from filing a fresh suit. In this regard, learned Senior Counsel for the Revision Petitioner has placed reliance upon the decision reported in A.I.R.1999 S.C. 508 wherein the Supreme Court has held that Withdrawal of suit without seeking permission to file fresh suit - ban for filing fresh suit under such circumstances.
17. This being the position, the bar under Order IX Rule 9 C.P.C and Order XXIII Rule 1 C.P.C to bring a fresh suit is applicable. Learned Subordinate Judge was not right in saying that the plea of "Estoppel" and "Resjudicata" could be set forth by way of filing the Written Statement and cannot be gone in at the initial stages of the suit.
18. Onbehalf of the Respondents, the main contention urged is that the bar under Order IX Rule 9 C.P.C and Order XXIII Rule 1(4) C.P.C is not applicable to partition suits. Learned counsel for the Respondent has contended that the right to abandon the relief of partition is a recurring one and the same survives notwithstanding dismissal of the Suit in O.S. No. 394 of 1990 for default. It is further contended that when the second suit is filed, it is maintainable for the simple reason that the issue has not been effectively agitated and partition not being effected and that the Plaintiff continues to be in joint possession and hence, there is no bar for filing a fresh suit for partition. In support of his contention, learned counsel has relied upon the decisions reported in Madhura Gramani v. Thummala Sesha Reddy (A.I.R. 1926 MADRAS 1018) and Thayyan v. Kannikandath (A.I.R. 1935 MADRAS 458). The learned counsel has also contended that the bar under Order XXIII Rule 1(4) has no application to partition suits, and in support of his contention, the learned counsel has relied upon the decision reported in Kesari Santamma v. Kanumatha Reddi Venkatarama Reddi (A.I.R. 1935 MADRAS 909) and Rajah V. Maheswara Rao v. Rajah V. Rajeswara Rao (1967 (I) M.L.J. 175).
19. This Court has carefully considered the above principles and observations laid down in the decisions. Though the present suit is one for partition, the observations in the above decision cannot be applied to the case in hand in view of previous several rounds of litigations between the parties. O.S. No. 394 of 1990 alone is not only the earlier litigation. It is only one round of litigation among the plethora of litigations. The Plaintiff Kandasamy is pitted against his Sister Mylathal for more than two decades.
20. O.S. No. 1040 of 1978 Mylathal - Sister of D.M.C, Pollachi : Plaintiff Kandasamy Vendor of Defendants 1 and 2 filed a suit in O.S. No. 1040 of 1978 for Declaration and Injunction against her Brother Kandasamy in respect of A and B Schedule Properties. In this suit also, Plaintiff Kandasamy remained exparte and the suit was decreed as prayed for on 05.03.1979.
22. I.A. No. 1511 of 1991:- Plaintiff - Kandasamy has filed this Application to set aside the exparte decree in O.S. No. 1040 of 1978 after a lapse of nearly 12 years and three months. In the said Application, Defendants 1 and 2 have impleaded themselves as parties. I.A. No. 1511 of 1991 was dismissed on 30.03.1993. Hence, the decree passed in O.S. No. 1040 of 1978 declaring Mylathal as owner of the Schedule A and B Schedule Properties has become final.
23. O.P. No. 108 of 1988:- This Petition was filed by Second Defendant - Jayakumar to evict Palani Gounder. The Defendant sought to be impleaded Plaintiff Kandasamy. The Revenue Court found that Kandasamy has no title, property and that impleading petition was dismissed. Aggrieved over the same, the Defendant Palani Gounder filed C.R.P. No. 3021 of 1991 before the High Court. In the said Revision, the High Court has held that Kandasamy has no right to the property and that Kandasamy cannot be impleaded as he has no title or interest in the property and the Civil Revision Petition was dismissed on 20.11.1991. In the backdrop of the above round of litigations, it would not be proper to hold that the bar under Order IX Rule 9 and Order XXIII Rule 1(4) C.P.C is not applicable. Thought the present Suit has been filed for partition of "A Schedule" property, the contention that the bar under Order IX Rule 9 and Order XXIII Rule 1(4) C.P.C is inapplicable cannot be countenanced.
24. In the supporting affidavit filed in I.A. No. 168 of 2000, the Revision Petitioners / Defendants have averred that the Plaintiff has suppressed factum of the earlier suit in O.S. No. 394 of 1990 and its dismissal for default. This averment is factually incorrect. Averments in Paragraphs 9 and 10 of the Plaint refer to earlier suit in O.S. No. 394 of 1990 and its dismissal for default. Contending that when the Affidavit has been filed on incorrect statement, the Trial Court has rightly dismissed the application and it is further contended that in any event, the bar under Order IX Rule 9 C.P.C and Order XXIII Rule 1(4) C.P.C would be used as a tool in fighting out the litigation insisting the suit be rejected even before adducing evidence. This contention does not merit acceptance in view of several litigations between the parties.
25. Learned Senior Counsel for the Revision Petitioners has drawn the attention of the Court to the decision reported in Hindustan Photo Films Manufacturing Co. Ltd., rep. by its Managing Director v. R. Lakshmanan (1998 (II) C.T.C. 474) in support of his contention that where the suit has been filed on the same cause of action, the Plaint is ordered to be struck off. In the said decision it has been held:-
"...Superintending power of High Court - Exercise of - Striking off suit - When two suits are filed on same set of facts based on same cause of action - Later suit is struck off - Plaintiff filed O.S. No. 286 of 1997 to declare date of birth as 01.09.1940 and to alter the same in service records - Subsequently O.S. No. 37 of 1998 is filed for permanent injunction not to superannuate and discharge plaintiff from service pending O.S. No. 286 of 1997 - Trial Court granted exparte injunction in O.S. No. 37 of 1998 - Delay in disposing of vacate injunction application - later suit in O.S. No. 37 of 1998 itself is struck off as abuse of process of court...."
The above principle applies to the case in hand.
26. One of the most abuse of process of Court is re-litigation. Re-litigation is an abuse of process of Court and contrary to justice and public policy. When the party re-agitates the same subject matter on the same cause of action, the same may or may not be barred by resjudicata; but if the same subject matter is sought to be re-agitated, it amounts to abuse of process of the Court. Such tendency of filing frivolous or vexatious suits are to be curbed by strong Judicial Hand especially where the proceedings are culmination of several rounds of litigation. In exercising the power of superintendence the High Court has the power to stop summarily to prevent the time of the Public and Court being wasted. Power to stop the proceedings should be sparingly exercised only in rare cases. The case in hand is one such instance where there are several rounds of litigations rendering the present suit O.S. No. 278 of 1999 as a vexatious and is to be struck off.
27. Learned Subordinate Judge has not properly appreciated the conduct of the Plaintiff. Several rounds of litigations only show the single minded intention of the Plaintiff to keep alive the litigative battle in one way or other. It is nothing but a clear abuse of process of Court. The Impugned Order of the learned Subordinate Judge is not well founded and cannot be sustained.
28. Therefore, the order of the Sub-Court, Udumalpet dated 12.06.2000 in I.A. No. 168 of 2000 in O.S. No. 278 of 1999 is set aside and this Revision Petition is allowed with costs. The Suit in O.S. No. 278 of 1999 is ordered to be struck off.