Madras High Court
M.A. Amanullah (Deceased) vs Fathima Fareedunissa on 10 December, 2009
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10-12-2009
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
A.S. No. 531 of 1999
1. M.A. Amanullah (Deceased)
2. A. Mohamed Ali
3. M.A. Shahul Hameed
4. Mahababunissa
5. Fathima Ali
6. Rahmathnisa
7. A. Asafali
8. A. Sheik Mujib Rahman
9. A. Fathima Parvin
(Appellants 6 to 9 brought on record
as legal heirs of the deceased 1st
appellant vide order dated 18.9.2009
in CMP Nos. 1199 to 1201 of 2009) .. Appellants
Versus
1. Fathima Fareedunissa
2. Badrunnissa
3. M.A. Ashraff
4. M/s. Thiru Arooran Sugars Ltd
rep. by its Company Secretary
Head Office at L.Eldorado
112, Nungambakkam High Road
Chennai 600 034 .. Respondents
Appeal filed under Section 96 of the Code of Civil Procedure against the decree and judgment dated 14.06.1999 made in O.S. No. 35 of 1997 on the file of the Additional District Judge, Pondicherry at Karaikal.
For Appellants : Mr. T.P. Manoharan
For Respondents : Mrs. Chitra Sampath for RR1 and 2
No appearance for R3
Mr. T.K. Seshadri for R4
JUDGMENT
The plaintiffs/respondents 1 and 2 herein have filed O.S. No. 35 of 1997 on the file of the learned Additional District Judge, Pondicherry at Karaikal for the relief of partition and separate possession of the plaintiffs 2/10 shares in the property set out in the plaint schedule and for a mandatory injunction directing the first defendant to transfer 1,282 shares to the name of the first plaintiff and 1,283 shares to the 2nd plaintiff and also to pass a decree for account to the plaintiffs for the dividends received by him from the 5th defendant company from the date of death of Ahamed Maricar. The suit was decreed as prayed for with costs. Aggrieved by the same, the defendants 1, 2, 3, 6 and 7 have come forward with the present appeal. Pending appeal, the first defendant/first appellant died and his legal heirs were brought on record as appellants 6 to 9.
2. For the sake of convenience, the parties shall be referred to as they were arrayed before the court below.
3. The Plaintiffs 1 and 2 are sisters. The defendants 1 to 4 are brothers of the plaintiffs. The sixth defendant is the wife of the third defendant. The seventh defendant is the wife of the second defendant. The Plaintiffs and defendants 1 to 4 are daughters and sons of Ahamed Maricar and Ummasalma Ammal. The father namely Ahamed Maricar died in the year 1983 and the mother also died intestate in the year 1990.
4. The Plaintiffs contended that their father purchased shares in the fifth defendant mill. On the death of their father, plaintiffs and defendants 1 to 4 inherited the properties owned by him as per Mohammadean Law and therefore each of the plaintiffs are entitled to a right in the properties owned by their father in the ratio of 1:2 as per the Mohammadean Law i.e., the daughters put together takes one share and sons put together takes two shares. Therefore, the defendants each entitled to = shares and the plaintiffs are entitled to 2/5 shares. The defendants 1 to 4 are entitled to 8/10 shares and the plaintiffs together are entitled to 2/10 shares. According to the plaintiffs, the plaintiffs as well as the defendants 1 to 4 jointly applied to get succession certificate to transfer the shares standing in the name of their father in SOP No. 5 of 1991 on the file of the Additional District Judge, Karaikal. By an order dated 18.12.1991, the Court has granted succession certificate to all the petitioners, represented by the first defendant, who was the first petitioner in SOP No. 5 of 1991.
5. It is contended by the plaintiffs that they bonafide believed that the first defendant will take necessary steps to get the shares transferred in their name in proportion to their rights. The plaintiffs were awaiting to hear from the defendants 1 and 5. Since nothing is forthcoming for a long time, the plaintiffs asked the first defendant to have the shares transferred in the name of the respective sharers as per law. In such circumstances, dispute arose between the parties and the first defendant attempted to transfer the shares in his own name. Therefore, on 05.11.1994, the plaintiffs sent a notice to the fifth defendant company calling upon them not to transfer the shares in favour of the first defendant. The fifth defendant sent a reply dated 15.12.1994 stating that they are proceeding to transfer the shares in the name of the plaintiffs and the defendants 1 to 4, but later on, the fifth defendant, by a letter dated 06.03.1995 indicated that they are going to transfer the shares in the name of the first defendant, in pursuance of the modified order passed in the succession certificate proceedings. According to the plaintiffs, they were not made parties to the proceedings in which the order passed in the succession certificate was modified in the name of the first defendant and such an order was obtained behind their back. The fifth defendant is sailing along with the first defendant to the detrimental interest of the plaintiffs. Immediately thereafter, the plaintiffs have filed O.S. No.100 of 1995 on the file of Principal District Munsif, Karaikal for the relief of interim injunction restraining the defendants from transferring the shares. The said suit was filed on 17.03.1995. In the said suit, the defendants 1 to 5 have taken a preliminary objection that the suit is not properly valued and therefore the Court has no jurisdiction to try the suit. Based on the preliminary objection, the suit was heard and returned for re-presentation before the proper Court. Aggrieved by the same, the plaintiffs have filed C.M.A. No. 12 of 1996 before the Additional District Judge, Karaikal, which was also dismissed on 01.10.1996. Though the appeal was dismissed, the appellate Court has made an observation in the appeal that if any party is aggrieved by the proceedings in Exs. A1 and A2,, after obtaining an order, the aggrieved party can seek necessary redressal before the appropriate forum. Pending the suit in O.S. No. 100 of 1995, the shares were transferred in the name of the first defendant by the fifth defendant, even though, it was communicated on 29.06.1995, whereas, the suit was filed only on 17.03.1995. Therefore, pursuant to the observations made by the appellate Court in C.M.A. No. 12 of 1996, the present suit has been filed by the plaintiffs seeking for partition and separate possession.
6. The first defendant filed written statement contending that the property namely shares have been purchased from and out of the funds of A.M.S. Brothers in Karaikal, which is a Partnership firm and the shares were obtained in the name of the four brothers as early as in the year 1964. These shares are therefore the benefits accrued to the respective partners from the status of their being the partners of M/s. A.M.S.Brothers, Karaikal. According to the first defendant, even during the life time of Ahamed Maraikar, his father, it was made clear that his rights over the business, shares and other benefits acccured in his capacity as Partner of M/s. A.M.S. Brothers shall go only to his male heirs i.e., his four sons namely defendants 1, 2, 3 and 4. Since he alone conducted the business and daughters have voluntarily parted from the firm and firm was re-constituted the shares are purchased only by the firm, which is the property of the firm. Inasmuch as the defendants 1 to 4 are present partners under the re-constituted firm, they are only eligible for the share certificates originally produced by the firm. Even though succession certificate was obtained with the consent of the plaintiff and other legal heirs, as per law, yet, it was done only for the purpose of the first defendant alone and pursuant to the order of the court made in the Succession Certificate Proceedings in the year 1991, which was subsequently amended to the effect that the shares were to be transferred only in the name of first defendant the fifth defendant transferred the shares to the first defendant. Subsequent to the said transfer, the first defendant also re-transferred it to other brothers and respondents 6 and 7, wife of the defendants 2 and 3, therefore, when the shares have been totally transferred to third party, the suit is not maintainable. The very shares are not available and hence, the relief sought for in the suit has become infructuous. According to the first defendant, succession certificate itself was amended only in favour of the first defendant. It was further claimed that the shares have been transferred even before filing of the suit in O.S. No. 100 of 1995.
7. The fourth defendant filed separate written statement supporting the case of the plaintiffs. It is stated that he is entitled to 1/6th share from the family arrangement and he is ready to re-convey his shares as per the final decision of the Court.
8. The fifth defendant, namely the company, filed written statement stating that it issued transfer certificate in the name of the first defendant on 29.06.1995 and such transfer has been made as per the amended order issued by the Court in succession certificate proceedings on 18.08.1994 in which the court, which granted succession certificate, enabled Mr. Amanullah, the first defendant herein, to get the shares transferred the shares specified in the schedule and to receive the dividend and for transmission of the shares. Further, particulars have also been furnished in regard to the subsequent transfer of shares on 09.03.1996 in the name of the other defendants, year wise. The only defence raised by the fifth defendant was that the order passed by the Court in the succession certificate proceedings has been followed by them in accordance with law.
9. Based on the above pleadings, the parties went for a trial. The plaintiffs examined one Aslam on their side as PW1 and marked Exs. A1 to A13. On behalf of the defendants, the first defendant examined himself as DW1 and no documentary evidence has been marked. The court below, on consideration of the oral and documentary evidence, decreed the suit granting partition and also mandatory injunction directing the fifth defendant to transfer the shares in the name of the plaintiffs herein.
10. The point for consideration in this appeal is
(i) whether the suit is maintainable in view of the earlier suit filed in O.S. No.100 of 1995
ii) Whether the suit is barred under Order II Rule 2 of CPC
iii) To what other relief the plaintiffs are entitled to
11. Mr. T.P. Manoharan, learned counsel appearing for the defendants /appellants vehemently attacked the decree and judgment of the court below on thee grounds namely (i) the suit is not maintainable in view of the fact that the earlier suit in O.S. No.100 of 1995 is a bar to the present suit inasmuch as the relief, which is now sought for, was available to the plaintiffs even at that point of time, but it was not sought for, therefore, the present suit is not maintainable (ii) the present suit is hit under Order II Rule 2 of CPC therefore the suit is liable to be dismissed in limine and (iii) the suit is barred by limitation in view of the fact that the shares have already been transferred before filing of the suit and the relief sought for in the suit has become infructuous.
12. At the outset, the learnd counsel for the appellants would submit that the property in question namely shares were originally purchased by father of the plaintiffs and defendants 1 to 4 from and out of the funds of the partnership firm, the shares were kept in the custody of the firm and it was treated as the property of the firm. Even before the death of the father, three months prior to his death, the firm was re-constituted and the shares were also given to the firm. The sons were inducted as partners in the newly constituted firm and the daughters have no interest in the firm as they were given in marriage. The marriage expenses and other benefits were given to the daughters long back and they have also excluded themselves from the business of the firm. Therefore, the daughters cannot have any legal right over the shares, which were purchased by the partnership firm. Even after 20 years of the death of the father, no money or shares was claimed, but at the same time, for effecting transfer of the shares, necessarily all the legal heris have to be arrayed as parties and accordingly the plaintiffs were arrayed as parties in the succession certificate proceedings. Under law, all the sharers should be joined as party to the succession certificate proceedings, therefore, the plaintiffs have been made as a party before the court. Merely because the plaintiffs were added as parties to the Succession Certificate Proceedings, that by itself would not clothe them with any right. Even succession certificate was obtained only in the name of the first defendant and it would only enure to his benefits. The subsequent amendment, which was made in the succession certificate was only to denote that succession certificate was not obtained for and on behalf of all the petitioners, but for the first defendant himself and the proceedings were initiated with the knowledge of every one. Under those circumstances, the fifth defendant has to follow the directives issued by the Court in the succession certificate proceedings. The fifth respondent cannot also question the same, if at all, the plaintiffs have to question it. When once an order is passed, it is for the plaintiffs to seek for cancellation of the order passed in the succession certificate proceedings, but without doing so, the suit, much less suit for partition, is not maintainable. Nevertheless, even the shares have been transferred and therefore, the suit for partition is not maintainable, if at all, the plaintiffs ought to have filed a suit for declaration and paid court fee, without doing so, the present suit is not maintainable.
13. The learned counsel for the appellant further contended that in the written statement, one sentence has been made that "the suit is also bad for non joinder of the whole claim under Order II Rule 1 of CPC". Admittedly, wrong provision was quoted, however, the intention was that the earlier suit filed by the plaintiffs in OS. No. 100 of 1995 is only for the purpose of interim injunction restraining the defendants from transferring the shares, whereas, even at that point of time, by the notice issued by the plaintiffs themselves to the fifth defendant, it was stated that the shares should not be transferred. When the only recourse was already available for filing a suit for declaration that the plaintiffs are entitled for transfer of shares and when that was not filed and only injunjction suit was filed, the present suit is hit by Order II Rule 2 of CPC. Therefore, it has to be held that the court below exceeded its jurisdiction in granting the relief of partition.
14. Contra, Mrs. Chitra Sampath, learned counsel for the plaintiffs/ respondents 1 and 2 herein mainly argued that the succession certificate has been applied and obtained by all the parties together for transfer of shares and it was filed for and on behalf of the petitioners. She relied on Ex.A2, copy of the order made in S.O.P. No.5 of 1991, which would denote that "........
15. "....Whereas you (the petitioners) applied on 22nd day of October 1991 for a certificate under Section 370 part 10 of the Indian Succession Act, 1925, in respect of the following company and bank shares.
S.No. Name of the company/ No. of Certificate No. & Total value bank shares Date 1. Thiru. Arooran Sugars 200 148 dt. 9.6.55 Rs.2000.00 Ltd 2. - do - 200 149 dt. 9.6.55 Rs.2000.00 3. - do - 200 150 dt. 9.6.55 Rs.2000.00 4. - do - 200 151 dt. 9.6.55 Rs.2000.00 5. - do - 200 152 dt. 9.6.55 Rs.2000.00 6. - do - 350 204 dt. 9.6.55 Rs.3500.00 7. The Karaikal Coop 025 63 dt. 24.5.56 Rs. 250.00 Urban Bank Ltd P.32 Karaikal ----------------- Total Rs.13750.00 ----------------
This certificate is accordingly granted to all petitioners represented by the first petitioner and empowers you namely the first petitioner M.A. Amanullah in the above mentioned case to receive dividends and transfer the share certificate (deleted as per order in I.A. No. 1 of 1995 dated 06.01.1995)
15. She further contend that the plaintiffs and the defendants 1 to 4 jointly applied for successon certificate. Originally, the order was passed for the benefit of all the sharers. However, the same was modified as per the order made in I.A. No. 1 of 1995 dated 02.01.1995 in which the plaintiffs were not made party. The plaintiffs have not given their consent for filing the application for amendment. No doubt, they have not filed an application to set aside that order in view of the fact that the present suit has been filed seeking a comprehensive relief. Further, even if the word "on behalf of" is removed, still the order reads that the succession certificate is granted to all the petitoners represented by the first defendant and such words remain inteact which itself denotes and confirm that the intention of the Court was to grant the succession certificate for and on behalf of all the petitioners as they are all parties to the original succession proceedings. Therefore, even after the removal of the words 'for and on behalf of the petitioners', still the order would enure to the benefit of all the petitioners in that petition in which the plaintiffs also has a share. Under those circumstances, the transfer of the shares by the fifth defendant to the first defendant is legally not sustainable. In the ealrier notice issued to the fifth defendant on 10.11.1994, Ex.A4 it was stated that though they have given the consent and later divide the shares among us, since the attitude of the brothers have changed, they were constrained to withdraw the consent to change all the shares in the name of the first defendant. The same contents were reiterated in the subsequent letter dated 24.02.1995, Ex.A5 wherein also they have stated that "since malpractice from my brothers are likely, I wish to inform you that my individual shares be remain untouched until further written notification from me". Further, by letter dated 06.03.1995, Ex.A6, the plaintiffs were informed by the fifth defendnat that they are going to proceed with the transfer of shares in favour of the first defendant as per the succession certificate issued by the Court. On receipt of the said letter, the plaintiffs have sent a reply dated 09.03.1995 stating that they came to know the amendment only for the first time and requested to give them one week time to initiate necessary legal proceedings. Immediately, on 17.03.1995, the plaintiffs filed the suit in O.S. No. 100 of 1995 on the file of Principal District Munsif, Karaikal for injunction restraining the defendants from transferring the shares in the name of the first defendant. According to the plaintiffs, since on that day of filing the earlier suit namely 17.03.1995, the shares have not been transferred, the plaintiffs could only file a suit for bare injunction restraining the firth defendant from transferring the shares alone. Thereafter, pending suit, the shares were transferred by the fifth defendant on 29.06.1995, which is also admitted by the first defendant in the written statement. In the meanwhile, the plaintiffs have filed C.M.A. No. 12 of 1996 against the return of the plaint in O.S. No. 100 of 1995 on the ground of jurisdiction and court fee. The District Court also confirmed the order of return passed by the trial court, however, the District Court has given a specific finding that if there are any disputes between the parties to the proceedings in Ex.A1 and A2 after obtaining an order, it is for the aggrieved party to file comprehensive suit and seek orders, permissible in Law. Therefore, the plaintiffs have filed the present comprehensive suit for partition and mandatory injunction and in such circumstances, the present suit is not a bar under Order II Rule 2 of CPC.
16. Even in respect of the claim to be made under Order II Rule 2 CPC, there must be a specific pleading stating that the earlier suit is identical in nature, pleading should be made, evidence should be let in, issues has to be framed, but nothing has been done. The defendants have also not able to establish that the cause of action for filing the present suit is available to the plaintiffs even at the time of filing the suit in O.S. No. 100 of 1995 so as to non-suit the plaintiffs. Contra, the cause of action arose for filing the present suit only on the date of transfer of the shares namely on 29.06.1995 and when the earlier suit in O.S. No. 100 of 1995 was filed on 17.03.1995, the plaintiffs had only an apprehension that the shares would be transferred in the name of the first defendant and therefore they filed only a suit for bare injunction. In such event, the present suit is maintainable and there is no embargo or bar for filing the present suit.
17. I have carefully considered the rival submissions made by both sides, perused the evidence on record. A perusal of the records would reval that the plaintiffs were hopefully waiting for transfer of the shares subsequent to the order passed in the succession certificate proceedings. As pointed out earlier, the succession certificate was applied by all the parties concerned jointly, including the plaintiffs. The succession certificate also reads that the petitioners therein are represented by the first defendant herein. No doubt, there is subsequent deletion in the later portion of the order to the effect of removing the words 'for and on behalf of the petitioner', but the same portion of the order still remains intact. When an admission has been made to transfer the shares, the earlier suit was filed in O.S. No. 100 of 1995 and at that point of time, there was no transfer of shares effected. Only on the apprehension, the plaintiffs have filed the suit in O.S. No.100 of 1995. When the plaint was returned for re-presentation to the competent court on the objection made by the first defendant on jurisdiction and court fee, the plaintiffs have taken the matter before the appellate Court by filing C.M.A. No. 12 of 1996 before the learned Additional District Judge. The appellate Court, in para-9 of the order dated 01.10.1996, held as follows:-
"9. If there are any disputes arise, between the parties to the proceedings in Ex.A1 and A2 after obtaining an order, it is for the aggrieved party to file comprehensive suit and seek orders, permissible in Law. Admittedly, Ahamed Maricar died intestate in the year 1983. Similarly, his wife also died in the year 1980 intestate. So, the heirs of the deceased Ahamed Maricar are entitled to respective shares of the estate of late. Ahamed Maricar under Mohameden Law. If the value of the right sought to be injuncted is assessable to Rs.13,00,000/-, then Principal District Munsif, Karaikal has no right to try the suit. Moreover, such suit requires necessary court fee under Court Fees Act"
18. Such an observation made by the learned Additional District Judge will clearly indicate that opportunity was given by the appellate Court to both the parties to the suit and liberty was given to them to take recourse under law in the event of dispute, by filing a comprehensive suit. This finding has not been challenged by the first defendant till date. As stated supra, the order of transfer itself was made pursuant to the order passed in Exs. A1 and A2 on 29.06.1995, whereas, the earlier suit was filed on 17.03.1995. The observations made in CMA No. 12 of 1996 will also come to the rescue of the plaintiffs in seeking the remedy in a consolidated second suit, being the present suit. In the present suit, the plaintiffs sought for partition of the shares, which is to be allotted to them according to Mohammadean Law, inasmuch as their father and mother died intestate. Therefore, the plaintiffs are entitled to 1 : 2 shares as claimed. Since the transfer took place on 26.09.1995, the present suit has been filed within three years i.e., on 16.06.1997, hence, the suit is in time.
19. A feeble attempt was made that the suit has to be filed from the date of death of the father. From the date of death of the father, till 1995, shares continued in the name of the father and only it was sought to be transferred or transferred. Whereas, at the first instance, the parties have jointly filed an application seeking succession certificate from the Court and obtained it. Though such permission to transfer the shares was made on 18.01.1994, on behalf of the petitioners, subsequently, an amendment was sought for in the year 1995 stating as if it is for the first defendant such a mutual transfer was made on 26.09.1995. Therefore, the suit is filed within three years from the date of amendment namely 06.01.1995 and the mutual transfer on 29.06.1995, hence,the suit is in time.
20. One other point canvassed very much was the shares itself was purchased by the father from and out of the funds of the firm, therefore, it is the property of the firm. In this connection, it is to be pointed out that in the Chief-examination, DW1 himself stated that "My father died on 03.08.1983. Three months prior to his death, my father retired from partnership and re-constituted a new partnership firm with the rest of his brothers and his sons in his place". In the cross-examination of DW1, a specific question was put to him and he answered as follows:-
"I deny that the original share from Thiru Arooran Sugars were purchased by A.M.S. & Brothers from its funds on 09.08.1954. The amount paid for the purchase of shares in his name were debited to his debit account in A.M.S. & brothers ledger.
21. This deposition of DW1 would clearly indicate two things namely (i) the shares purchased in the name of the father Ahamed Maricar and the funds paid for such purchase of shares was debited to the partnership account and thereafter it becomes the personal property and as per the admission made by the first defendant himself, even three months prior to the death of the father, he has got out of the partnership firm. If really shares were still in the name of the partnership firm, automatically when the firm was reconstituted, shares should have been transferred in the name of the firm. When this is not done, even during the life time of Ahamed Maricar, the theory that the shares are the property of the firm is nullified. When the shares are not in the name of the partnership and in the perosnal name of Ahamed Maricar, he having died intestate and his wife also died intestate, as per Mohammadean Law, the daughters/plaintiffs are entitled to the share in the ratio of 1:2 as claimed.
22. There is no other document produced to say that the daughters have relinguished their right in respect of the shares. The very fact that the first defendant himself sought signatures of the plaintiffs to get succession certificate would prove that the shares are the properties of the father. If the theory of the first defendant that the shares are the property of the partnership firm, in the succession certificate proceedings, there is no necessity to implead the legal heirs of Ahamed Maricar, including the plaintiffs and he could have straightaway stated that the shares are the properties of the firm and prayed for issuance of succession certificate accordingly and added the plaintiffs as respondents or atleast got their consent and then filed an application by way of affidavit. Contra, the application itself has been made for transfer for and on behalf of all the petitioners. Under those circumstances, the conduct of the first defendant would clearly indicate beyond reasonable doubt that the shares are owned by the father coupled with the fact that the fourth defendant, son, has filed written statement accepting the case of the plaintiffs that the shares are the property of the father and that he confined his claim to the extent of 1/6 share. In that written statement, he also expressed his readiness to surrender the excess share obtained by him. Such an admission of the fourth defendant is vital to this case.
23. The appellants have attempted to portray as if the fourth defendant was represented by power of attorney agent, who is the husband of the first plaintiff. Inasmuch as the plaintiff and the fourth defendant did not have any conflicting interest, as fourth defendant accepts the plea of the plaintiffs and stated that he is willing for a partition, the averment of the plaintiffs that there was a collusion between defendants cannot be accepted. If that be the case, the only point now remains to be considered is whether the second suit is hit by Order II Rule 2 of CPC. In this context, I am fortified by the decision of the Honourable Supreme Court reported in (Dalip Singh vs. Mehar Singh Rathee and others) 2004 7 SCC 650 wherein it was held that when a relief, which had been omitted in the previous suit in respect of the same cause of action and when a plea regarding bar is raised, the Court has to ascertain whether the cause of action of the previous and subsequent suits was identical. In the absence of proof of identity of cause of action and pleadings, such a plea cannot be permitted to be raised. In Para No.12, it was held as follows:-
"12. .....Firstly, the plea of applicability of Order 2 Rule 2 CPC is not sustainable on twocounts. Firstly, the plea of applicability of Order 2 Rule 2 CPC and the subsequent suit being barred was not taken by the appellant in his written statement filed in response to the notice of the suit nor was any issue framed on the point. The sine qua non for applicability of Order 2 Rule 2 CPC is that a person entitled to more than one relief in respect of the same cause of action has omitted to sue for some relief without the leave of the Court. When an objection regarding bar to the filing of the suit under Order 2 Rule 2 CPC is taken, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous suit in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject matter of the previous suit. As the plea had not been raised in the written statement and no issue framed on this point, no opportunity was provided to respondent 1 to lead evidence to rebut the same. In the absence ofpleadings and proof of identity of cause of action, the appellant could not be permitted to raise the plea of bar of Order 2 Rule 2 CPC. The High Court had gone into merits as well and held that the two suits filed by the Respondent 1 were not based on the same cause of action. We need not examine this on merits as we have held that in the absence of pleadings or the issue regarding the bar of Order 2 Ruyle 2 CPC in filing the suit the appellant cannot be permitted to raise such a plea.
24. In this case, as stated supra, a feeble attempt was made stating that one sentence in the written statement was made that the suit is hit under Order II Rule 1 of CPC and that the first defendant has clearly canvassed this defence. Even if this is taken into consideration, no specific evidence was let in by producing the previous plaint or written statement to show that the same cause action arise for filing the previous suit. As rightly pointed out by the counsel for the plaintiffs, the cause of action in the two suits are totally different and the cause of action to file the present suit was not available for the plaintiffs at the time of filing the previous suit. Even in the appeal grounds, the defendants have not raised the applicability or otherwise of the provisions of Order II Rule 2 of CPC to the present case.
25. In (Akkipeddi Gopalasastry vs. Vijayawada Engineering Metal Co., Ltd) AIR 1968 Andhra Pradesh 41 (Vol.55, C.8) the Division Bench of the Andhra Pradesh High Court held that when there are different cause of action, then the provisions of Order II Rule 2 will not apply. In Para No.11, it was held as follows:-
"11. There is, however, another point which was argued in the Courts below, namely that the suit O.S. 10/59 was barred by the provisions of Order 2 Rule 2 C.P.C. Our learned brother held that there is nobar under Order 2 Rule 2 because the reliefs prayed for in the two suits arise out of different causes of action. It is also not seriously contended by Sri Surya Rao that Order 2 Rule 2 CPC bars the present suit. We are inclined to agree with the finding of the Courts below that on the facts of the present case, there is no bar under Order 2 Rule 2 CPC."
26. In this case also, as discussed earlier, there are two different causes of action available for the plaintiffs, hence, the present suit is not hit by the provisions of Order II Rule 2 of CPC.
27. In (Union of India vs. H.K. Dhruv) 2005 10 SCC 218 the Honourable Supreme Court held that cause of action on which subsequent claim is founded should have arisen to the claimant when he sought enforcement of his first claim before any Court. In Para No.4, it was held as follows:-
"4. Having heard the learned Senior counsel for the appellant as also the respondent appearing in person, we are satisfied that no fault can be found with the view taken by the High Court. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before any Court. On the facts found and as recorded in the judgment of the High Court and with which we find no reason to differ, the second demand raised by the respondent was not available to be made a part of the claim raised in the first application. Thebar enacted by order 2 Rule 2 CPC is clearly not attracted."
28. In this case, the share transfer took place only on 29.06.1995 pending the previous suit in O.S. No.100 of 1995, which was instituted on 17.03.1995. Admittedly, on the date of presentation of plaint in O.S. No. 100 of 1995, the cause of action for filing the present suit has not arisen for the plaintiffs and therefore the plea of bar or embargo made by the appellant is unsustainable.
29. The learned counsel for the defendants/appellants relied on the decision reported in (Kumarayee Ammal & 10 others vs. M. Ramanathan, rep. by his Power Agent S.P. Kathiresan) 2007 4 Law Weekly 319 for the proposition that the plaintiffs, having failed to avail the cause of action for filing the suit for larger relief, they cannot be permitted to maintain the present suit. In that decision, earlier a suit was filed and it was withdrawn with the permission of the Court to file a fresh suit on the same cause of action and on the date of withdrawal, already the cause of action for filing the subsequent suit has arisen. Under such circumstances, the learned Judge came to the conclusion that the provisions of Order II Rule 2 of CPC is a bar for the subsequent suit. The facts of the case involved in that decision and the facts of the case on hand are different and hence the said decision is not applicable.
30. The learned counsel for the appellants also relied on the decision rendered in (Rafique Bibi (Dead) by LRs vs. Sayed Waliuddin (Dead) by Lrs and others) 2004 1 SCC 287 and contended that assuming that the succession certificate may be a wrongful order, once an order is validly passed by a competent Court, without setting aside the same, further relief cannot be sought by way of partition. As far as the present case is concerned, as stated supra, the succession certificate need not be set aside as the original certificate itself, after amendment, reads as "for and on behalf of the first petitioner". Under those circumstances, this ruling is not applicable to the case on hand.
31. It is evident that the plaintiffs have all along been waiting for transfer of shares after giving their consent for filing an application for getting succession certificate. Thereafter, though amendment was made unilaterally by the first defendant himself, on coming to know about the amendment, the plaintiffs have raised objection by way of legal notice to the fifth defendant and also filed a suit for permanent injunction in O.S. No. 100 of 1995. Pending such suit, the shares were transferred and therefore the present suit was filed by the plaintiffs. It is clear that the causes of action for the two suits are entirely different, hence, I hold that the earlier suit in O.S. No. 100 of 1995 is not a bar for instituting the present suit by the plaintiffs under Order II Rule 2 of CPC.
32. The court below has taken into consideration the admission of the defendants 1 and 5 that the shares numbering 3375 is in the name of the first defendant, whereas, the suit itself has been filed only for transfer of the shares of 1283 each in the name of the plaintiffs respectively from the name of the first defendant out of his shares numbering 3375. Inasmuch as the admission of the first defendant that shares to the tune of Rs.3375 is still available in his name, there is no impediment in granting the relief of transfer of shares to the plaintiffs. In the written statement, the first defendant contended that the shares have been transferred and sold, whereas the written statement of the fifth defendant is to the effect that the share remains in the name of the first defendant on the date of filing of the suit. Inasmuch as the shares are available, the argument of the first defendant that the very purpose of the suit is no longer survives and it becomes infructuous or it cannot be enforced cannot be accepted. As rightly pointed out by the counsel for the plaintiffs/respondents, the parties were united till 1995 and there was a dispute in the year 1995 relating to transfer of shares. During the pendency of O.S.No. 100 of 1995, transfer of shares took place and immediately, the present suit has been filed and the shares are still available. In such circumstances, the suit prayer can be granted.
33. In view of the above discussion, the points for consideration are answered against the defendants/appellants and in favour of the respondents/plaintiffs.
34. The learned counsel for the fifth defendant argued that some observation relating to collusiveness and fradulent nature of transfer has been observed by the court below and such an observation is unwarranted. The fifth defendant did transfer the shares pursuant to the order passed in succession proceedings and during the pendency of O.S. No. 100 of 1995, especially after the notices issued by the plaintiffs in Exs. A4 and A6 for which a reply notice in Ex.A7 was also issued stating that they are transferring the shares. When the matter is pending before the Court, being a company, the fifth defendant ought to have awaited for the result of the suit. In any way, the fifth defendant could have exercised restraint from transferring the shares when the suit in O.S.No. 100 of 1995 has been filed and pending before the Court. However, there is no evidence to show that the fifth defendant has colluded with the other defendants in a fradulent manner. Therefore, the observation of collusiveness or fradulent transaction made in para-50 of the impugned judgment of the court below is not warranted. Accordingly, the observations made by the court below in so far as it relates to the alleged collusiveness or fradulent transaction against the defendants/appellants is hereby eschewed.
35. In view of my finding that the earlier suit in O.S. No. 100 of 1995 is not a bar under Order II Rule 2 of CPC and that the succession certificate has been obtained for and on behalf of the plaintiffs, the findings rendered by the court below is correct, legal, valid and interference of this Court is not warranted.
36. In the result, the appeal suit is dismissed. However, there shall be no order as to costs.
rsh To The Additional District Judge District Court Pondicherry at Karaikal