Madras High Court
M.Venkatachalam vs Karunkarapandian
Author: P.T.Asha
Bench: P.T.Asha
C.R.P.(MD) No.1981 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED : 24.01.2022
ORDER PRONOUNCED : 01.02.2022
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.1981 of 2014
and
M.P.(MD) No.1 of 2014
M.Venkatachalam ... Petitioner
vs.
1.Karunkarapandian
2.M.Rajagopal ... Respondents
PRAYER:- This Petition is filed under Section 115 of the Code of Civil
Procedure, to call for the records and set aside the fair and decreetal order dated
15.04.2014 in I.A.No.353 of 2010 in O.S.No.119 of 2010 on the file of the
learned Subordinate Judge, Palani.
For Petitioner : Mr.H.Lakshmi Shankar
For Respondents : Mr.V.R.Shanmuganathan
ORDER
The 1st defendant in the suit O.S.No.119 of 2010 is the revision petitioner before this Court. He has challenged the dismissal of an application filed by him invoking the provisions of Order VII Rule 11 of the Code of Civil Procedure to reject the plaint in O.S.No.119 of 2010.
https://www.mhc.tn.gov.in/judis 1/17 C.R.P.(MD) No.1981 of 2014
2.In order to appreciate the grievance of the petitioner herein, it is necessary to set out the following dates and events:-
“CHRONOLOGY OF DATES AND EVENTS S.No. DATE EVENTS 1 18.12.1982 The paternal grandfather of the revision petitioner and the 2nd respondent, one Ramasamy Naidu executes a settlement deed in their favour retaining a life interest for himself.
2 21.08.1995 Ramasamy Naidu unilaterally cancels the settlement deed stating that the petitioner and the 2nd respondent have not complied with the terms of settlement.
3 05.09.1995 The revision petitioner herein and the 2nd respondent, who were minors then, had instituted the suit O.S.No.652 of 1995 on the file of the Sub Court, Dindigul, which was later transferred to the District Munsif Court, Palani and numbered as O.S.No.222 of 1996 and once again transferred to the Sub Court, Palani and numbered as O.S.No.160 of 1998 to declare the cancellation of the settlement deed as null and void and for permanent injunction. They were represented by his father as natural guardian.
4 16.11.1998 One V.Kalimuthu obtains a money decree against Ramasamy Naidu in O.S.No.235 of 1998 on the file of the Sub Court, Palani.
5 2000 The decree holder, V.Kalimuthu, files E.P.No.3 of 2000 to execute the decree by bringing the property settled on the petitioner and the 2nd respondent for sale.
6 19.09.2001 O.S.No.160 of 1998 is dismissed and A.S.No.231 of 2001 is filed by the petitioner herein before the learned Additional District Judge (Fast Track Court), Dindigul. 7 25.11.2002 Auction sale is held in E.P.No.3 of 2000 and on the very same day, the sale was also confirmed in favour of the respondents herein.
https://www.mhc.tn.gov.in/judis 2/17 C.R.P.(MD) No.1981 of 2014 8 2004 E.P.No.88 of 2004 is filed by the 1st respondent herein seeking delivery of the property. E.A.No.300 of 2004 is filed by the petitioner under Order XXI Rule 97, 99 and 101 of the Code of Civil Procedure, obstructing the delivery.
9 12.08.2005 A.S.No.231 of 2001 is allowed and the decree and judgment in O.S.No.160 of 1998 is set aside. The title of the petitioner and the 2nd respondent is declared and permanent injunction was also granted in his favour.
10 2006 The sons and daughter of Ramasamy Naidu filed S.A. (MD) No.348 of 2006, challenging the judgment and decree in A.S.No.231 of 2001 (The property has already been sold in Court auction.) 11 13.06.2008 E.A.No.300 of 2004 is dismissed by the Executing Court totally overlooking the judgment and decree in A.S.No. 231 of 2001.
12 2008 A.S.No.99 of 2008 was filed against the dismissal of the obstruction petition by the Executing Court and I.A.No. 114 of 2008 was filed to stay of all further proceeding in execution.
13 29.09.2008 I.A.No.114 of 2008 is allowed.14 29.04.2010 The instant suit O.S.No.119 of 2010 is filed by the 1st respondent herein for bare injunction.
15 14.06.2010 A.S.No.99 of 2008 is allowed upholding the claim of the revision petitioner.
16 09.07.2018 S.A.(MD) No.348 of 2006 is dismissed for default.
3.From the above chronology of events, it appears that the title of the revision petitioner and his brother had been declared by a competent civil Court and injunction has been granted in their favour. The second appeal, which is filed challenging the judgment in A.S.No.231 of 2001, has been dismissed for https://www.mhc.tn.gov.in/judis 3/17 C.R.P.(MD) No.1981 of 2014 default. It is now informed that an application has been moved for restoring the same with a delay.
4.In this backdrop, the 1st respondent herein has filed a suit seeking the following reliefs:-
“jhth gpuhJ nrhj;ij thjp ePjpkd;wk; %yk; Vyk; vLj;j gpwF jhth gpuhJ nrhj;jpy;; gpujpthjpfs; fl;bl mikg;Gfis ,bf;fNth khw;wNth kw;Wk; Gjpjhf fl;blk; fl;lNth $lhJ vd epue;ju cWj;Jf;fl;lis gupfhuk; toq;fpAk;.”
5.The 1st respondent has narrated the filing of the suit O.S.No.160 of 1998 and its dismissal and thereafter, the filing of the appeal suit A.S.No.231 of 2001 and also the pendency of the second appeal. The plaintiff would submit that a settlement deed had been executed by Ramasamy Naidu on 18.12.1982 in favour of the revision petitioner nominating his father as his guardian. The plaint would narrate that in this settlement deed, the settler had retained a life interest and has also clearly stated that he would have no right to alienate or otherwise create a charge in respect of the sale and he can only enjoy the property. After his demise, the revision petitioner and the 2 nd respondent were to enjoy the property absolutely. The 1st respondent had further stated that since the https://www.mhc.tn.gov.in/judis 4/17 C.R.P.(MD) No.1981 of 2014 revision petitioner had not provided food and clothing and failed to maintain the Settlor, the Settlor had cancelled the settlement deed.
6.The petitioner had filed the impugned petition, namely, I.A.No.353 of 2010 for rejecting the plaint on the ground that it is a clear abuse of power, process of Court as well as a case of relitigation. That apart, the plaintiff did not have a cause of action to file the suit on the said date, as the petitioner's right to the property had been declared in A.S.No.231 of 2001 and an order of injunction has been granted, restraining the defendants, their men or agents from interfering with the possession of the plaintiff and also a permanent injunction, restraining the 1st defendant from selling or creating any other encumbrance on the suit schedule property.
7.The 1st respondent, who has filed the suit on 29.04.2010, has suppressed the filing of A.S.No.99 of 2008 on the file of the Sub Court at Dindigul and the stay that has been granted on 29.09.2008 in I.A.No.114 of 2008, in and by which all further proceedings in E.A.No.300 of 2004 has been stayed. I.A.No. 114 of 2008 has been filed to stay of all further proceedings in E.A.No.88 of 2004 in E.P.No.3 of 2000 in O.S.No.235 of 1998 on the file of the learned Principal District Munsif, Dindigul. E.A.No.88 of 2004 is the application that https://www.mhc.tn.gov.in/judis 5/17 C.R.P.(MD) No.1981 of 2014 has been filed by the auction purchaser, namely the 1st respondent herein for taking delivery of the property.
8.The 1st respondent herein had filed a counter interalia contending that the paternal grandfather of the revision petitioner had executed the settlement deed dated 18.12.1982 retaining a life interest on him. Thereafter, since the petitioner had not acted as per the terms of the settlement deed, Ramasamy Naidu had cancelled the settlement deed on 21.08.1995. He would submit that the decree obtained by the plaintiff pursuant to the judgment and decree in A.S.No.231 of 2001 has been challenged by the children of Ramasamy Naidu before this Court.
9.The 1st respondent herein would submit that after he has purchased the property, the petitioner had no right to demolish or alter the physical features of the suit schedule property, which he was attempting to do and as a result the 1 st respondent was constrained to file the instant suit. Apart from the above contention, the 1st respondent had simply denied the other reasons given in the petition for rejecting the plaint.
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10.The learned Subordinate Judge, Palani by his non-speaking order dated 15.04.2014 has dismissed the application. The finding and reason for dismissing the application are contained in a single paragraph and the same reads as follows:-
“thjp jhf;fy; nra;Js;s gpuhjpid ePf;fwT reject
nra;af;Nfhup ,k;kD jhf;fy; nra;ag;gl;Ls;sJ. tof;F %yk;
vJTk; ,y;yhj gl;rj;jpYk; tof;F rl;lj;jpw;F Gwk;ghdJ vd;w
epiyapYk;jhd; gpuhjpid ePf;fwT reject nra;a ,aYk;. tof;fpd; jd;ikia MuhAk;nghOJ tof;F tprhuiz nra;J rhl;rpaq;fspd; mbg;gilapy;jhd; tof;fpd; mLj;j epiy gw;wp mwpa ,aYk;. VdNt kDjhuh;fs; jhf;fy; nra;Js;s ,k;kD Vw;fj;jf;fjy;y vdTk; js;Sgb nra;aj;jf;f xd;W vdTk; ,e;ePjpkd;wk; KbT nra;fpwJ.”
11.Challenging the said order, the petitioner is before this Court.
12.The argument made by Mr.H.Lakshmi Shankar, learned counsel appearing for the petitioner is that the proceeding is an abuse of process of Court. It is the case of relitigation and the plaintiff/1st respondent herein does not have the cause of action or the right to institute the present suit. He would argue that the 1st respondent, who is the party to the proceeding in A.S.No.99 of 2008 and is aware of the stay of all further proceeding, has filed the suit suppressing the earlier proceeding. Therefore, he would submit that the plaint https://www.mhc.tn.gov.in/judis 7/17 C.R.P.(MD) No.1981 of 2014 deserves to be rejected. He would contend that the 1st respondent/plaintiff is an auction purchaser in execution of a money decree. This decree has been passed when the suit in respect of the title to the property had been instituted as early as in the year 1995, challenging the unilateral cancellation by the Settlor.
13.The learned counsel for the petitioner would further submit that the sale in favour of the 1st respondent was subject ultimately to the decree in O.S.No.160 of 1998, in which an appeal has been decreed in favour of the revision petitioner. The auction purchaser at best would only step into the shoes of the original owner, namely, Ramasamy Naidu and would only be entitled to whatever right the said Ramasamy Naidu had over the property. As on date the cancellation of the settlement deed by Ramasamy Naidu has been held to be invalid and the title of the petitioner and his brother/the 2 nd respondent has been declared. He would further submit that in the guise of the present suit, the 1st respondent/plaintiff, who is only acting at the behest of the revision petitioner's uncle, is attempting to interfere with the possession of the revision petitioner in the suit property, which has been granted to him by the decree in O.S.No.160 of 1998. Further, the learned counsel would submit that all further proceedings in execution has been stayed in A.S.No.99 of 2008 and the auction purchaser cannot institute a separate suit, which is barred under the provisions of Order https://www.mhc.tn.gov.in/judis 8/17 C.R.P.(MD) No.1981 of 2014 XXI Rule 101 and 47 of the Code of Civil Procedure. He would also submit that as on date, no right or title vests upon the 1st respondent/plaintiff and therefore, the filing of the suit is totally without any cause of action. The present proceeding is nothing but an abuse of process of Court and relitigation. Despite the order declaring the cancellation of the settlement deed as null and void and the order in A.S.No.99 of 2008, the 1st respondent/plaintiff is relitigating the entire issue. Relitigation is an abuse of process of Court and a ground for rejecting the plaint. He would rely on the following judgments:-
“i) In the case of N.Palanisamy Vs. A.Palaniswamy reported in AIR 1998 Mad 264.
ii) The Member Concern Department of Post Vs. Annapoorni and others reported in 2005 4 LW 206.
iii) Nesammal and another Vs. Edward and another reported in 1998 2 CTC 537.
iv) Samarendra Nath Sinha and another Vs. Krishna Kumar Nag reported in 1966 0 Supreme (SC) 306.”
14.Per contra, Mr.V.R.Shanmuganathan, learned counsel appearing for the respondents would submit that the title suit had been dismissed on 17.09.2001 and the Court auction purchase had taken place on 25.11.2002. The decree in O.S.No.160 of 1998 was reversed in appeal only on 12.08.2005. The decree in the money suit, under which the properties were brought to auction https://www.mhc.tn.gov.in/judis 9/17 C.R.P.(MD) No.1981 of 2014 sale had been decreed on 18.12.1997. He would submit that the 1st respondent is a bona fide purchaser for value. That apart, the allegation made by the petitioner that there is collusion between the parties has to be ascertained through evidence and therefore, the suit cannot be thrown out as the threshold. He would submit that the present proceeding is not a relitigation as the auction purchaser/1st respondent was not a party to any of the earlier proceedings. Therefore, he would submit that the trial Court has rightly dismissed the petition filed under Order VII Rule 11 of the Code of Civil Procedure.
15.Heard the learned counsels on either side and perused the records.
16.The 1st respondent claims title to the property on the basis of the Court auction purchase. The Court auction purchase has taken place pursuant to a money decree against the deceased Ramasamy Naidu. The property that has been brought to Court auction admittedly had been settled in favour of the petitioner and the 2nd respondent by the said Ramasamy Naidu as early as on 18.12.1982. When the settlement was made, the petitioner and his brother were minors. Their father as Guardian has accepted the settlement. The said Ramasamy Naidu thereafter on 21.08.1995 has unilaterally cancelled the settlement deed. In the cancellation deed, the reason for cancelling the https://www.mhc.tn.gov.in/judis 10/17 C.R.P.(MD) No.1981 of 2014 settlement deed was that the petitioner and his brother/the 2nd respondent had failed to feed, cloth and maintain Ramasamy Naidu as imposed under the settlement deed dated 18.12.1982.
17.The learned Additional District Judge (Fast Track Court), Dindigul in his judgment in A.S.No.231 of 2001 had clearly observed that there was no condition imposed in the settlement deed dated 18.12.1982, directing the Settlee to look after the Settlor. The Settlee at the time of the execution of the settlement deed were minors. Even on the date of the cancellation, they continued to be minors and it is for this reason that the cancellation has been questioned by their father as their Guardian. The suit for recovery of money has been filed, when the petitioner and his brother through their friend and natural guardian, their father had questioned the cancellation of the settlement deed by the said Ramasamy Naidu. Knowing fully well that the minors had questioned the cancellation of the settlement deed, the said Ramasamy Naidu has allowed the property to be brought to Court auction. Once the cancellation of the settlement deed is found to be invalid, the settlement deed would become enforceable and dates back to the date of its execution.
18.That apart, the petitioner has filed an obstruction petition in the https://www.mhc.tn.gov.in/judis 11/17 C.R.P.(MD) No.1981 of 2014 application filed by the plaintiff herein in E.A.No.88 of 2004 for delivery. The obstruction petition, which was dismissed by the Executing Court, has been stayed in I.A.No.114 of 2008 on 29.09.2008. Therefore, all further proceeding in execution has been stayed. Having suffered two orders, one directly and the other claiming as the purchaser under the defendants in the earlier suit, the petitioner has come forward with the instant suit for bare injunction. The petitioner has not only got a decree declaring the cancellation of the settlement deed dated 18.12.1982 as invalid, but has also got an injunction restraining the 1st defendant or any other person claiming under him from causing any kind of obstruction on the suit property and from creating any sale or other encumbrance. Therefore, the judgment in A.S.No.231 of 2001 gives an unfettered right of enjoyment to the plaintiff. While so, the 1st respondent by filing the suit O.S.No.119 of 2010 is trying to rewrite the order of injunction granted in favour of the plaintiff, which amounts to abuse of process of Court and the present suit is nothing but a case of relitigation. By filing the suit in question, the plaintiff/1st respondent is attempting to scuttle the legal process. The 1st respondent/plaintiff is an auction purchaser and the petitioner has obtained a stay of all further proceedings in execution on 29.09.2008, when I.A.No.114 of 2008 was allowed. The 1st respondent is a party to the said proceeding. Despite being aware about the stay of all further proceeding in https://www.mhc.tn.gov.in/judis 12/17 C.R.P.(MD) No.1981 of 2014 execution, which included the auction purchase by the 1st respondent, the 1st respondent has filed the instant suit, which is nothing but a relitigation.
19.The Hon'ble Supreme Court in the case of K.K.Modi Vs. K.N.Modi and others reported in (1998) 3 SCC 573, had observed as follows:
44.One of the examples cited as an abuse of the process of the Court is relitigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as resjudicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceeding summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of the Court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no change of the suit succeeding.
..........
46.In Mcllkenny V. Chief Constable of West Midlands Police Force, the Court of appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since it raised an issue https://www.mhc.tn.gov.in/judis 13/17 C.R.P.(MD) No.1981 of 2014 identical to that which had been finally determined at the plaintiff's earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel.
20.In the case of Seeni Alias Sundarammal Vs. Ramasamy Poosari and 2 others reported in (2000) III CTC 74, this Court has sounded a word of ''caution'' stating that it is the duty of the Court to prevent improper use of its machinery. The learned Judge has observed as follows in paragraph No7 of the said judgment:
7.Process of Court must be used bona fide and properly and must not be misused or abused. It is the duty of the Court prevent improper use of its machinery. The Court has to see that it is not used as a means of oppression and the process of litigation is free from vexatiousness. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process would depend upon the relevant circumstances. But, it has be judged from the angel of interest of justice and public policy.
21.The judgment cited supra reported in (1998) 3 SCC 573 has been followed by this Court in the case of The Member concern Department of Post, Government of India, Ministry of Communication represented by its Chief Postmaster General Vs. Ms.Annapoorni and another reported in https://www.mhc.tn.gov.in/judis 14/17 C.R.P.(MD) No.1981 of 2014 2005-4-L.W.206. The learned Judge has stated that the plaint can be struck off at any stage of the litigation and has also relied on the judgment in the case of S.P.Chengalvaraya Naidu Vs. Jagannath reported in AIR 1994 SC 53=1994 (1) SCC 21=1994-1-L.W.21. The relevant paragraph of the said judgment is as follows:
30.“The principle of 'finality of litigation' cannot be pressed into 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, we are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that 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....”
22.Therefore, considering the litigation pending between the parties and the above judicial pronouncements, it is clear that the suit O.S.No.119 of 2010 is a case of relitigation and abuse of process of Court and the order passed by the learned Subordinate Judge, Palani in dismissing the petition filed by the petitioner for rejecting the plaint is absolutely baseless.
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23.In fine, the Civil Revision Petition stands allowed. The order passed in I.A.No.353 of 2010 in O.S.No.119 of 2010 dated 15.04.2014 on the file of the learned Subordinate Judge, Palani is set aside. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes / No 01.02.2022
Internet : Yes / No
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To
The Subordinate Judge,
Palani.
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C.R.P.(MD) No.1981 of 2014
P.T.ASHA, J.
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Order made in
C.R.P.(MD) No.1981 of 2014
01.02.2022
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