Madras High Court
V.Meiyappan vs A.Priya on 22 July, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.07.2014
CORAM
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
Review Petition No.23 of 2014
in
C.R.P.(PD).No.3924 of 2013
V.Meiyappan
S/o.N.Valliappan .... Petitioner
Vs
A.Priya
Former W/o.V.Meiyappan .... Respondent
Prayer : Review petition filed under Article 227 of the Constitution of India r/w. Section 114 of C.P.C., praying to review the order dated 22.01.2014 and made in C.R.P.No.3924 of 2014.
For Petitioner : Mr.Muthukumarasamy (SC)
For Respondent : Mr.K.Mohanamurali
O R D E R
1. Invoking the provisions of Article 227 of the Constitution of India, r/w Section 114 of the Code of Civil Procedure, the fair and decretal order dated 23.01.2014 and made in the memorandum of civil revision petition in CRP.No.3924 of 2013 on the file of this court are sought to be reviewed in this review petition.
2. The review petitioner is the petitioner in the civil revision petition whereas the respondent herein is the respondent therein.
Conspectus of Facts
3. The respondent herein claiming to be the wife of the review petitioner/revision petitioner has filed the suit in O.S.No.18 of 2011 on the file of the learned Principal Subordinate Judge, Cuddalore as against the review petitioner/revision petitioner seeking the relief of declaration to declare that the marriage solemnised between her and the review petitioner/revision petition on 26.05.2010 is valid subsisting and binding on the review petitioner/revision petitioner and for a permanent injunction restraining the review petitioner from in any manner marrying a third party while the marriage solemnised between the respondent and the review petitioner on 26.05.2010 is subsisting.
4. This suit was contested by the review petitioner/revision petitioner. During the pendency of the suit the review petitioner/revision petitioner has filed an application in I.A.No.61 of 2013 under Order 7 Rule 11 and Section 151 of the Code of Civil Procedure to reject the suit in O.S.No.18 of 2011 from the file of the learned Principal Subordinate Judge Cuddalore on the following five grounds;
1.The respondent is once again relitigating the earlier proceedings.
2.The suit itself is a sheer abuse of process of law and judicial procedure.
3.The suit is also barred by resjudicata.
4.The issue before the trial court was directly or indirectly an issue before the learned Principal District Judge, Cuddalore in CMA.No.24 and 25 of 2011.
5.The respondent has no cause of action for filing the suit in O.S.No.18 of 2011.
5. This petition was vigorously resisted by the respondent by filing her counter statements and after hearing both sides the learned Principal Subordinate Judge, Cuddalore has proceeded to dismiss the said application on 13.08.2013 on the ground that the material facts which are giving rise to the cause of action to file the suit have to be decided only after completion of trial and the learned trial judge has also found that it could not be decided that the suit was bad for want of cause of action.
6. Having been aggrieved by the impugned order dated 13.08.2013 the review petitioner has approached this court with the memorandum of civil revision in Crp.No.3924 of 2013. The revision petition was heard at length, and ultimately that petition was dismissed confirming the order of the trial court. While dismissing the above said revision petition in CRP.No.3924 of 2013, this court has observed that;
With regard to the abuse of process of Court and contrary to justice and public policy in connection with re-litigating the same issue which has already been tried and decided earlier between the parties, this court is of the view that now the suit in O.S.No.18 of 2013 is pending on the file of the learned Subordinate Judge, Cuddalore and the respondent has also filed his written statement and considering the observations made by the learned trial judge and for the purpose of giving opportunity to the respondent/plaintiff to adduce her evidence both oral and documentary to substantiate her claim that she had remarried the revision petitioner/defendant after getting the decree of divorce, this court, as an exceptional case finds better to dismiss the Civil Revision Petition in CRP.PD.No.3924 2013.
7. Being aggrieved by the order of this court dated 22.01.2014, the present review petition has been filed by the revision petitioner.
8. Heard Mr.Muthukumarasamy learned senior counsel appearing for the review petitioner and Mr.K.Mohanamurali learned counsel appearing for the respondent.
9. It is revealed from the records that the review petitioner had originally filed a petition for divorce in HMOP.No.467 of 2006 as against the respondent herein on the file of the Family Court Madurai and the same was transferred to the learned Principal Subordinate Judge, Cuddalore and renumbered as HMOP.No.10 of 2007. The respondent had also filed another application for restitution of conjugal rights in HMOP.No.18 of 2007 on the file of the same court. Both the petitions were consolidated and tried together. Trial was also commenced and after the completion of the cross-examination of the revision petitioner, the respondent had agreed for divorce and on the basis of consent of both the parties, the learned trial judge had allowed the divorce petition in HMOP.No.10 of 2008 on 12.03.2010 granting the decree of divorce and had proceeded to dismiss the petition in HMOP.No.18 of 2007 which was filed by the respondent for restitution of conjugal rights.
10. According to the review petitioner on and from 12.03.2010 there is no relationship of husband and wife between him and the respondent. In the interregnum, the respondent challenging the orders passed by the learned Principal Subordinate Judge in HMOP No.10 of 2008, as well as HMOP.No.18 of 2007 dated 12.03.2010 had preferred two civil miscellaneous appeals in CMA.No.24 and 25 of 2011 on the file of the learned Principal District Judge, Cuddalore stating that the consent decree obtained in HMOP.No.10 of 2008 and 18 of 2007 were fraudulent.
11. In the above said civil miscellaneous appeals, the respondent had raised a contention saying that after the decree of divorce granted by the learned Principal Subordinate Judge, Cuddalore they had once again married but this contention was rejected by the learned Principal District Judge and both the appeals were dismissed on 12.09.2011. Challenging the judgment and decree passed in CMA.No.24 and 25 of 2011 dated 12.09.2011, the respondent had preferred CMSA.No.56 and 57 of 2011 before this court and the same was also dismissed by this court on 21.11.11.
12. While dismissing the CMSA No.56 and 57 of 2011 the learned Single Judge of this court has observed as under;
1.The learned counsel appearing for the appellant seeks permission of this court to withdraw the civil miscellaneous second appeals and has also made an endorsement to that effect.
2. Accordingly, both the civil miscellaneous second appeals will stand dismissed as withdrawn. However, if the appellant has got any other right, she can prosecute the same, if law permits.
13. Mr.Muthukumarasamy learned senior counsel for the review petitioner while advancing his arguments has laid emphasis on the following observations made by the learned Single Judge of this court in the judgment and decree of CMSA No.56 and 57 of 2011 dated 21.11.2011.
However, if the appellant has got any other right, she can prosecute the same, if law permits.
14. In this regard the learned senior counsel has submitted that the above said observations made by the learned single judge of this court is consisting of a rider clause saying that;
if the appellant has got any other right, she can prosecute the same, if law permits.
15. He has also maintained that no other law for the time being in force to permit the respondent to prosecute the review petitioner for the very same cause of action which was earlier disagreed and rejected by the learned Principal District Judge, Cuddalore. He has also pointed out that the divorce petition in HMOP.No.10 of 2007 on the file of the learned Principal District Judge, Cuddalore was allowed and the decree of divorce was granted only on the consent given by the respondent and subsequently, her petition in HMOP.No.18 of 2007 for restitution of conjugal rights was also dismissed. He would further submit that the respondent had vexatiously filed two civil miscellaneous appeals in CMA.No.24 and 25 of 2001 on the file of the learned Principal District Judge, Cuddalore challenging the decree of divorce dated 12.03.2010 on the ground that the consent decree of divorce was fraudulent. He has also adverted to that the respondent had also raised a new contention that after getting divorce in pursuant to the order dated 12.03.2010, they had once again married and had been living as husband and wife. But this new contention raised by the respondent was rejected and the civil miscellaneous appeals were dismissed by the learned Principal District Judge, Cuddalore on 12.09.2011. Subsequently, based on the on endorsement made by the learned counsel who was appearing for the respondent before this court seeking permission of this court to withdraw the civil miscellaneous second appeal in CMSA.No.56 and 57 of 2011 which were filed by the respondent against the judgment and decree of the learned Principal District Judge, Cuddalore dated 12.09.2011, were dismissed with the observations as aforestated.
16. The learned senior counsel has also pointed out that taking advantage of the observation of this court in the judgment dated 21.11.2011 and made in CMSA No.56 and 57 of 2011 she had filed a suit in O.S.No.18 of 2011 seeking the relief of declaration to declare that the marriage solemnized between the review petitioner and the respondent on 26.05.2011 as valid and subsisting and binding on the defendant and also seeking the relief of permanent injunction restraining him from in any manner marrying third party while the marriage solemnised between them on 26.05.2010 is subsisting.
17. Mr.Muthukumarasamy has canvassed that the respondent did not have any cause of action to file the suit in O.S.No.18 of 2013 and that the suit itself amounts to a sheer abuse of process of court and barred by the doctrine of resjudicata as the earlier proceedings in HMOP.No.10 of 2008 as well as 18 of 2007 and CMA.No.24 and 25 of 2011 and CMSA No,.56 & 57 of 2011 were all disposed against her.
18. Further he has submitted that as contemplated under Order 47 Rule 1, there is error apparent on the face of the order of this court dated 22.01.2014 and the order of this court itself have caused grave prejudice to the review petitioner and therefore, he has urged this court to review the order dated 22.01.2014.
19. While advancing his arguments he has also referred to his earlier arguments and once again placed reliance upon the decisions reported in K.K.Modi vs.K.N.Modi and others rep. it 1998 3 SCC 573 and yet another decision in C.Bagyalakshmi reported in 2006 (5) CTC 74.
20. On the other hand Mr.K.Mohanamurali learned counsel for the respondent has adverted to that there is no error apparent in the order which is sought to be reviewed here and that he has urged to dismiss the review application in liminie. He has also maintained that the suit in O.S.No.18 of 2013 pending on the file of the learned Principal District Judge Cuddalore is not for the same cause of action which was earlier rejected by the learned Principal District Judge, Cuddalore as well as by this court and that the suit is not for relitigation but it is absolutely a fresh litigation for which the review petitioner has to answer.
21. The learned counsel has also drawn the attention of this court to the judgment dated 12.09.2011 and made in CMA.No.24 and 25 of 2011 on the file of the learned Principal District Judge, Cuddalore. On perusal of paragraph Nos.5 to 9 of the judgment dated 12.09.2011 and made in CMA No.24 of 2011 the learned Principal District Judge, Cuddalore has observed that;
5.Under such circumstances the parties have entered into a compromise arrangement and chose to file the deed of compromise into the court. The trial court after the filing of the deed of compromise has chosen to examine the parties about the arrangement to satisfy about the genuineness of the compromise. The parties have led evidence and marked the documents and upon satisfaction the trial court has granted a decree of divorce and dismissed the petition for restitution of the conjugal rights.
6.According to the appellant (respondent herein) her father is a professor in the University and her mother is a Principal in a school and herself a former lecturer in Annamalai University. Therefore, the parties are not laymen jumping to conclusions without knowing the legal consequences. Further the compromise has been made on three subjects namely the marriage, return of the jewels and the custody of the minor child. ...... When the parties have entered into a compromise arrangement and signed the deed which has been admitted and confirmed by the parties in the court by physically appearing and testifying to the said fact, the courts are bound by it and the courts could not go behind as to what is in store thereafter.
7....... In the present case there is no petition filed under mutual consent. Both the petitions have been hotly contested for years together and during the pendency of the proceedings the parties have compromised together to chose their course of action in their life.
8. ..... The appellant (respondent herein) has chosen to mark Ex.P1 to P4 which indicates that even after the grant of the order of divorce by the trial court the spouses have been living together on selecive occasions and in proof of the same filed the photographs taken during the time of house warming occasion, visit to the temples and performance of the annual rituals to the family deity etc.
9.It is not known as how these materials would be relevant for making a decision in this case now...... This case reveals a very sorry state of affairs that the parties, merely being highly qualified, have even claimed even higher and above law, and have a vested right to use, misuse and abuse the process of court. Now a days we come across a new character of relationship between man and woman which has been termed in judicial parlance as live-in-relationship, which has been approved by the Hon'ble Apex Court....... This court has no comments over the exhibits and can utmost decide not to rely upon the same on the reason that these exhibits are of the period subsequent to the grant of divorce. Therefore, these materials are not taken into legal consideration.
22. The observations made in para 5 to 9 by the learned Principal District Judge, Cuddalore would go to show that the respondent's contention that she had remarried the review petitioner and had been living as husband and wife was negatived by him which resulted in the dismissal of the CMA.No.24 and 25 of 2011.
23. Only against the dismissal of the appeals in CMA.No.24 and 25 of 2011 the respondent had preferred CMSA No.56 and 57 of 2011 before this court, which were dismissed as withdrawn as aforestated.
24. On perusal of the suit in O.S.No.18 of 2013 the cause of action paragrapgh viz., para No.16 discloses as under;
.....when the defendant (review petitioner) filed proceedings for divorce, when the plaintiff filed proceedings for conjugal rights, when the defendant brain washed the plaintiff and gave an instrument for divorce and remarriage, when the defendant obtained consent for divorce on 12.03.2010, when the defendant remarried the defendant on 26.05.2010 on an auspicious day, when the plaintiff and the defendant lived as husband and wife at karaikudi and Chidambaram, when the defendant drove away the plaintiff from their marital home in November 2010, when the plaintiff attempted to set aside the collusive decree of divorce by filling CMA.No.24 and 25 of 2011, when the same was dismissed on 12.09.2011, when the plaintiff filed CMSA No.56 and 57 of 2011 when the same is withdrawn with liberty,....
25. As discussed in the foregoing paragraphs the plea of remarriage and living together as husband and wife after getting divorce on 12.08.2010 has been suitably and rightly negatived by the learned Principal District Judge, Cuddalore as well as by this Court. However the respondent has not established the factum that she has got any right under law to prosecute or to re-litigate the earlier litigation which was lost by her.
26. However the learned counsel for the respondent has pointed out that in exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered that it has limited purpose and cannot be allowed to be an appeal in disguise. He has also submitted that the review is not on the ground of discovery of some new and important matter or evidence. The review petition has no merits and it is an attempt to reargue the matter on merits and this attempt to review by reappraisal of the evidence on record for finding out the error will amount to an exercise of appellate jurisdiction which is not permissible by review as there is no error apparent on the face of record warranting exercise of review jurisdiction by this court.
27. This court has struck a balance between the arguments advanced by the learned senior counsel appearing for the review petitioner and the learned counsel for the respondent. Having been considered the submissions made by both the learned counsels this court would like to place it on record that the plea of remarriage has already been raised in I.A.No.314 of 2011 in CMA.No.24 of 2011 on the file of the learned Principal District Judge, Cuddalore wherein she had illustrated the happenings of 26.05.2010 and sought permission to receive additional documents as exhibits. Though the said application was initially allowed, eventually the civil miscellaneous appeal was dismissed which would go to demonstrate the fact that the respondents plea and contention of continuation of marital relationship was rejected in the CMA's arising out of the original decree of divorce. The decree of divorce was confirmed in the appeal. The respondent had also contended in CMSA No.56 and 57 of 2011 that she had remarried the review petitioner, but both the CMSA's were dismissed as withdrawn and therefore, the contention of remarrige of the revision petitioner was ever rejected by this court, which has not been challenged by the respondent. Therefore, the common judgment and decree in CMSA.No.56 and 57 of 2011 has become final and therefore it cannot be once again agitated under the guise of filing of a fresh suit. As argued by Mr.Muthukumarasamy learned senior counsel once a plea is rejected and confirmed by the appellate court, it cannot be reopened once again and reagitated by way of filing a fresh suit with the same cause of action as against the review petitioner. Since the suit in O.S.No.18 of 2013 appears to be relitigation and barred by the principle of resjudicata it is a sheer abuse of process of court.
28. Under this circumstance it may be expedient to have the reference of the decision in K.K.Modi vs. K.N.Modi and Others reported in (1998) 3 SCC 573 wherein in paragraph Nos.43 and 45 it is observed as under;
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court" thus: "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation........ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of 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 court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of courts' 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 chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard [19147 (2) AER 255] the e court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court, held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexation and an abuse of the process of court.
29. The scope of an application of review is much more restricted than that of an appeal. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 47 Rule 1. As observed in Moran Mar v. Mar Poulose, AIR 1954 SC 526 the review petition can be allowed on the following three specified grounds;
1.discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order was made;
2.mistake or error apparent on the face of the record; or
3.for any other sufficient reason.
30. Insofar as this case is concerned this court finds that as indicated by Mr.Muthukumarasamy learned senior counsel a mistake has been crept while considering the concept of abuse of process of court and misuse of the powers of judiciary and on account of this reason this court finds that the order of this court dated 22.01.2014 is deserved to be reviewed and accordingly it is reviewed.
31. In the result the review petition is allowed. The fair and decretal order dated 22.01.2014 and made in CRP.No.3924 of 2014 is reviewed and in consequent thereof the impugned order dated 13.08.2013 and made in I.A.No.61 of 2013 in O.S.No.18 of 2013 on the file of the learned Principal Subordinate Judge, Cuddalore is set aside and the petition in I.A.No.61 of 2013 in O.S.No.18 of 2013 is allowed and the suit in O.S.No.18 of 2013 on the file of the learned Principal Sub Court, Cuddalore is rejected on the following grounds;
1.Relitigation
2.Barred by Doctrine of resjudicata, in view of the judgment passed in CMA.No.24 and25 of 2011 which were confirmed by this court in CMSA 56 and 57 of 2011 dated 26.05.2011.
3.Non-availability of cause of action
4.Abuse of process of Court.
However there shall not be any order as to costs.
22.07.2014 prm Internet:Yes/No Index:Yes/No Note:Issue Order Copy Today T.MATHIVANAN,J prm Review Petition No.23 of 2014 in C.R.P.(PD).No.3924 of 2013 22.07.2014