Madras High Court
Unknown vs Swadesh Agro Farming And Storage Pvt. ... on 4 March, 2016
A.No.6685 of 2019 in
E.P.No.48 of 1997
A.No.6685 of 2019
in
E.P.No.48 of 1997
SENTHILKUMAR RAMAMOORTHY.J
This application is filed under Section 47 CPC to decide as a
preliminary issue whether the Respondents 1 to 4/Co-Decree
Holders 2 to 5 are entitled to a share of the properties of S.V.
Ramakrishna Mudaliar by way of intestate succession and whether they
are entitled in spite of the judgment and decree in T.O.S. No.2 of 2009
dated 04.03.2016. Whether this application constitutes an abuse of
process takes centre stage as would be evident from the following
narration of the facts and circumstances leading to the filing thereof.
2. The Applicant is the son of S.V. Ramakrishna Mudaliar
(Ramakrishna Mudaliar). His late father, Ramakrishna Mudaliar, filed a
civil suit, namely, C.S.No.43 of 1962, against Mrs.Rajabu Fathima Buhari
and her husband A.M.B.Buhari for re-conveyance of the suit schedule
properties. The said suit was decreed in favour of the plaintiff on
10.11.1965. O.S.A. Nos.8 and 9 of 1966 were filed by the defendants
therein against the judgment and decree and by judgment dated
10.05.1972, the judgment and decree of the trial court was set aside.
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S.L.P. No.2689 of 1973 was filed by Ramakrishna Mudaliar against the
judgment of the Division Bench. While the appeal was pending in the
Supreme Court, Ramakrishna Mudaliar died on 31.12.1980. The
Respondents herein are the second wife, Saroja, and children of
Ramakrishna Mudaliar. They were impleaded in Civil Appeal No.224 of
1974 by the Hon'ble Supreme Court and they prosecuted the Civil Appeal
by arraying the Applicant as a respondent. By order dated 17.04.1995,
the Hon'ble Supreme Court allowed the Civil Appeal and restored the
judgment and decree of the trial court. Pursuant to the judgment of the
Supreme Court, the Applicant filed E.P. No.48 of 1997 before the learned
Master on 16.03.1997. By order dated 07.07.2000, the learned Master
ordered re-conveyance in favour of the Applicant. Application Nos.2872
and 2873 of 2000 were filed by the Respondents herein against the order
dated 07.07.2000 in E.P. No.48 of 1997 in C.S. No.43 of 1962. By order
dated 24.08.2000, this Court held that the Respondents herein, who were
the applicants therein, were entitled to be joined as petitioners in E.P.
No.48 of 1997 and would also be entitled to the benefit of re-conveyance.
This order was challenged by the Applicant in O.S.A. No.372 of 2000
before the Division Bench. The said Appeal was disposed of with the
direction that the execution petition shall proceed by joining the
Respondents herein as Co-Petitioners therein and that the re-conveyance
should be in favour of all of them.
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3. The Applicant filed S.L.P.(Civil)No.895 of 2003 against the
order in O.S.A. No.372 of 2000. By order dated 17.04.2003, the Supreme
Court dismissed the S.L.P. and stated as follows. “It is clarified that if any
suit is filed inter se the contending claimants to the ownership of the suit
property, then the question of ownership the number of owners and the
extent of share shall be decided in that suit only”. The Respondents filed
a memo on 20.11.2002 before the learned Master on the basis of the
judgment and decree in O.S.A. No.372 of 2000 seeking to be impleaded.
The learned Master refused to take cognizance thereof. According to the
Applicant, the Respondents did not file a Petition for execution of the
decree in O.S.A. No.372 of 2000 and thereby waived their rights.
Instead, the Respondents tampered with the records in E.P. No.48 of 1997
by interpolating their names as Decree Holders/Petitioners in the
Execution Petition. Upon discovery of such interpolation, the Applicant
filed a Contempt Petition before the Supreme Court. Upon directions from
the Supreme Court, an enquiry was conducted by the Vigilance
Department. Pursuant to such enquiry, the tampering was proved.
Pursuant thereto, a clean copy dated 09.02.2007 was filed in E.P.No.48 of
1997.
4. Meanwhile, the Respondents filed O.P. No.367 of 2006 for
the grant of Letters of Administration with the will annexed in respect of
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various properties, including the property which is subject matter of E.P.
No.48 of 1997. The said suit was converted into T.O.S. No.2 of 2009.
Various Applications were filed by the Respondents challenging the order
dated 06.06.2014 of the learned Master refusing to take cognizance of the
memos filed by the Respondents. All these Applications were allowed and
the order of the learned Master was set aside by order dated 16.02.2015.
By the said order, this Court directed the Master to implead the
Respondents as Co-Petitioners in E.P. No.48 of 1997. The Applicant
challenged the order dated 16.02.2015 in Application Nos.6809 to 6811 of
2014 by filing O.S.A. Nos.73 to 77 of 2016, which were dismissed by the
Division Bench on 04.03.2016 by imposing exemplary costs of
Rs.50,000/- on the Applicant herein. Around the same time, T.O.S. No.2
of 2009 was disposed of by the Court by order dated 04.03.2016 holding
that the Will is proved but that the property, which is subject matter of
E.P. No.48 of 1997, did not form part of the bequest under the Will
because it was not in the possession of the testator at the time of
execution of the Will or at the time of death of the testator. The present
application is filed in the above facts and circumstances.
5. I heard the learned senior counsel, Mr.Anoop G.Chaudhari,
assisted by Mr. M. Kamalanathan, on behalf of the Applicant and Mr.
S.Aravindan, the learned counsel for the Respondents.
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6. The first submission of the learned senior counsel was that
the order dated 16.02.2015 in Application Nos.6809, 6810 and 6811 of
2014 is per incuriam. In this connection, the learned senior counsel
referred to the directions of this Court at paragraph 12 of the said order.
After referring to the said directions, he pointed out that these directions
are completely contrary to Order XXI CPC, which constitutes a complete
code with regard to the execution of decrees. Order XXI Rule 11(2) CPC
provides for a written application to be impleaded whereas, in this case,
the Respondents herein filed memos and not a written application.
Secondly, he contended that the limitation period for initiating execution
proceedings is a period of 12 years from the date of the decree. The
Respondents herein requested to be impleaded long after the lapse of the
stipulated 12 year period of limitation. The said limitation period should be
computed from the date of the restoration of the judgment and decree of
the trial court by the Supreme Court. Accordingly, the limitation period
should be computed from 17.04.1995, when the Supreme Court
pronounced the judgment and decree in C.A. No.224 of 1974. If so
calculated, the limitation period would lapse on 16.04.2007. In support of
this contention, he referred to and relied upon the judgment of the
Hon'ble Supreme Court in W.B. Essential Commodities Supply
Corporation vs Swadesh Agro Farming and Storage Pvt. Ltd. and
another (1999) 8 SCC 315, wherein the Hon'ble Supreme Court held
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that the period of limitation under Article 136 of the Limitation Act, 1963
(the Limitation Act) runs from the date of decree. He also contended that
Order I Rule 10 CPC does not apply to execution proceedings. Therefore,
the direction of the learned single judge to the Master to implead the
Respondents herein as Co-Petitioners based on the memo filed by them in
the year 2002 is per incuriam. In support of the plea of per incuriam, he
referred to and relied upon the following judgments:
(i) A.R.Antulay v. R.S.Nayak and Another (1988) 2 SCC 602
and, in particular, paragraphs 42 to 47 thereof.
(ii) State of U.P. and another v. Synthetics and Chemicals
Ltd. (1991) 4 SCC 139 and, in particular, paragraphs 36 to 40 thereof.
(iii) Municipal Corporation of Delhi v. Gurnam Kumar (1989)
1 SCC 110 and, in particular, paragraph 11 thereof.
(iv) Narmada Bachao Andolan v. Union of India and Others
(2011) 7 SCC 639 and, in particular, paragraphs 65 to 70 thereof.
(v) Subhash Chandra and Another v. Delhi Subordinate
Services Selection Board (2009) 15 SCC 458 and, in particular,
paragraph 100 thereof.
(vi) Madhya Pradesh Rural Road Development Authority and
another v. L.G.Chaudhary Engineers and Contractors (2012) 3 SCC
495 and, in particular, paragraphs 28 to 35 thereof.
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7. Based on the above judgments, the learned senior counsel
emphasized that the directions in paragraph 12 of the Order dated
16.02.2015 of the learned Single Judge are per incuriam and should be
ignored. Consequently, the execution petition is liable to be proceeded
with as though the said directions were not issued. On this issue, he also
submitted that an appeal does not lie against the decision of the learned
Master as per the Original Side Rules of the Madras High Court. In
support of this contention, he relied upon the judgment in Sreyas Sripal
v. Upasana Finance Ltd 2007 (4) CTC 161, wherein the Division Bench
of this Court held that the word 'appeal' in Order XIV Rule 12 CPC is a
misnomer; it is actually a review of the order of the Master.
8.The second contention of the learned senior counsel was
that the Respondents are not entitled to the benefit of the decree in C.S.
No.43 of 1962 on the basis of the judgment and decree passed in O.S.A.
No.372 of 2000. In support of this contention, the learned senior counsel
pointed out that the decree was drawn up on 18.09.2002 in O.S.A.
No.372 of 2000. The Respondents did not file an execution petition within
three years of the said judgment and decree as per Article 135 of the
Limitation Act. Secondly, the execution court is required to decide the
execution petition independently and any order or direction to the
execution Court to decide the case in a particular manner is without
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jurisdiction. Thirdly, by order dated 17.04.2003, in S.L.P. C.A. No.895 of
2003, the Hon'ble Supreme Court clarified that if a suit is filed inter se the
contesting claimants with regard to the ownership of the suit property, the
question of ownership, the number of owners and the extent of share
shall be decided in that suit only and the Respondents did not file a suit.
The judgment and decree in O.S.A. No.372 of 2000 merged with the order
dated 17.04.2003 of the Hon'ble Supreme Court and, upon such merger,
the judgment and decree in O.S.A. No.372 of 2000 was fully absorbed in
the order of the Hon'ble Supreme Court and no longer survived. With
regard to the doctrine of merger, the learned senior counsel relied upon
the judgments of the Hon'ble Supreme Court in Gangadhara Palosupra
v. Revenue Divisional Officer (2011) 4 SCC 602 and Union of India
v. West Coast Papers Mills Limited and Another (2004) 2 SCC 477
and, in particular, to paragraphs 26 to 31 of the latter.
9. The third contention of the learned senior counsel was that
the Respondents herein elected to make a claim on the basis of the Will of
Ramakrishna Mudaliar. After unsuccessfully prosecuting the testamentary
suit, the Respondents should not be permitted to make a claim on the
basis of intestate succession because this amounts to approbation and
reprobation and an estoppel operates against the Respondents in this
regard. On this issue, the learned senior counsel also contended that the
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Respondents have no right to claim a share in the property, which is the
subject matter of E.P. No.48 of 1997, because their rights were rejected in
T.O.S. No.2 of 2009. Consequently, their claims are on the basis of an
unprobated Will and such a claim is not maintainable by virtue of Section
213 of the Indian Succession Act, 1925(the Succession Act). In support of
this contention, he relied upon the judgment of the Hon'ble Supreme
Court in Mumbai International Airport Pvt. Ltd. v. Golden Chariot
Airport and Another (2010) 10 SCC 422 and, in particular, to
paragraphs 55 to 63 thereof. By choosing to prosecute the testamentary
suit, he contended that the Respondents waived their rights to make a
claim on the basis of intestate succession. In support of this principle, he
referred to and relied upon the judgment of the Hon'ble Supreme Court in
Dr. Karan Singh v. State Of Jammu & Kashmir & Another (2004)
13 SCC and, in particular, to paragraph 5 thereof.
10. The fourth contention of the learned senior counsel was
that the Respondents are not entitled to succeed to the estate of the late
Ramakrishna Mudaliar on the basis of intestate succession because there
was admittedly no marriage between Ramakrishna Mudaliar and the
mother of the Respondents. For this purpose, he referred to the Will of
Ramakrishna Mudaliar wherein it is stated expressly that the testator,
Ramakrishna Mudaliar, was living with Smt. Saroja even though there was
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no marriage between them. The said recital was also referred to by this
Court in the judgment dated 04.03.2016 in T.O.S. No.2 of 2009.
Consequently, it was contended that Saroja's status is that of a concubine
and her children, namely, the Respondents herein are illegitimate children
with no right of inheritance under the Hindu Succession Act, 1956(the
Hindu Succession Act). This position is clear from the Sections 3(j) read
with Section 8 of the Hindu Succession Act. Such persons are not entitled
to the benefit of the amended Section 16(3) of the Hindu Marriage Act,
1955 (the Hindu Marriage Act), which is applicable only if a marriage was
conducted. In support of this proposition, he referred to and relied upon
the judgment of the Hon'ble Supreme Court in Revanasiddappa and
Another v. Mallikarjun and Others (2011) 11 SCC 1 and, in
particular, to paragraph 37 thereof. He also relied upon the judgment of
the Bombay High Court in Daddo Atmaram Patel and another v.
Raghunath Atmaram Patil AIR 1971 BOM 176 and, in particular, to
paragraphs 15 and 16 thereof. The judgment of the Division Bench of this
Court in Rajan and others v. Chidambaravadivu and others in
A.S.No.553 of 1991, Judgment Dated 25.06.2002 was also relied
upon, wherein the Division Bench of this Court referred to the judgment in
K.Munuswami Gounder and Another v. M.Govindaraju and four
others (1995) 1 L.W. 487, wherein it was held that once the factum of
marriage is not proved, it has to be treated as a case of no marriage and,
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therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the
children born out of such marriage cannot get the benefit of Section 16(1)
of the Hindu Marriage Act. Thus, he submitted that the Respondents
herein are illegitimate children and are, consequently, not entitled to
inherit the properties, which are the subject matter of E.P. No.48 of 1997.
11. The fifth and final contention of the learned senior counsel
was that the Applicant is entitled to the benefit of the Order of the Hon'ble
Supreme Court by virtue of Order 41 Rule 4 CPC. In specific, even though
the Applicant did not participate in the proceedings that resulted in the
judgment and decree dated 17.04.1995 in C.A. No.224 of 1974, the
Applicant is entitled to the benefit of such order as per Order 41 Rule 4,
22 and 33 of CPC which makes it clear that the benefits that accrue upon
the filing of an appeal by one of the plaintiffs in the suit would accrue to
the benefit of the other plaintiffs although they did not file the said
appeal. He concluded his submissions by stating that, for all these
reasons, this application is liable to be allowed.
12. On the contrary, the learned counsel for the Respondents
submitted that the scope of the suit in C.S. No.43 of 1962 cannot be
enlarged in an application under Section 47 of the CPC. Therefore, this
application is an abuse of process of law in as much as the applicant is
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endeavouring to travel beyond the scope of the order passed by the
Hon'ble Supreme Court on 17.04.2003 in S.L.P. No.895 of 2003 whereby
the order of the Division Bench of this Court in O.S.A. No.372 of 2000 was
affirmed. In order to substantiate this contention, the learned counsel
explained that all the previous adjudications arose from and out of the
execution proceedings in E.P. No.48 of 1997. Such proceedings attained
finality on account of the affirmation of the judgment of the Division
Bench by the Hon'ble Supreme Court. In this context, the present
application under Section 47 of the CPC is an abuse of process of law. The
claims of the Applicant were previously canvassed before this Court in
Application No.2872 and 2873 of 2000 and rejected by order dated
24.08.2000. The challenge to the said order by way of O.S.A. No.372 of
2000 was rejected by order dated 11.04.2001. This order was challenged
in SLP (CC)No.895 of 2003, which was dismissed by order dated
17.04.2003. Thus, the principles of res judicata would apply and the
present application is liable to be rejected in limini. In fact, the Applicant
also challenged the order dated 16.02.2015 in Application Nos.6809 to
6811 of 2014 by filing O.S.A. Nos.73 to 77 of 2016, which were dismissed
by the Division Bench on 04.03.2016 by imposing exemplary costs of
Rs.50,000/- on the Applicant herein. The said judgment is reported in
2016 (2) CTC 491. Therefore, the claims of the Applicant herein were
rejected twice by the Division Bench of this Court in O.S.A. No.372 of
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2000 by order dated 11.04.2001 and in O.S.A. Nos.73 to 77 of 2015 by
order dated 04.03.2016. In those proceedings, the Applicant herein had
advanced the same contentions with regard to the law of limitation, the
non-probating of the Will, the alleged illegitimacy, etc. and such
contentions were rejected by the Division Bench of this Court.
13. As regards the contention that the Respondents herein
are not entitled to claim on the basis of intestate succession, the learned
counsel for the Respondents submitted that the validity of the Will dated
05.07.2017 of Ramakrishna Mudaliar was accepted by this Court in T.O.S.
No.2 of 2009. However, the Will did not contain specific descriptions of the
properties of the testator. Moreover, the property, which is subject matter
of C.S.No.43 of 1962, was under litigation at the time of execution of the
Will and at the time of death of the testator. Therefore, the learned Judge
concluded in the judgment in T.O.S. No.2 of 2009 that the said property
should be dealt with as if the testator died intestate as regards the said
property. This is clear from paragraph 44 of the said judgment. Thus, the
Respondents herein are entitled to claim on the basis of intestate
succession on account of the judgment and decree in T.O.S. No.2 of 2019.
14. As regards the entitlement of the Respondents as per the
law of intestate succession, the learned counsel pointed out that the
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entitlement of the Respondents was accepted and confirmed by the
Division Bench of this Court in the order dated 11.04.2001 in O.S.A.
No.372 of 2000. This position was reaffirmed in the order dated
04.03.2016 in O.S.A. Nos. 73 to 77 of 2015. The next contention of the
learned counsel for the Respondents was that the Applicant is not entitled
to maintain the application under Section 47 of CPC because Section 47
only deals with disputes between the judgment debtor and decree holder
or disputes between the decree holder and third parties who obstruct the
execution of the decree. In other words, it does not enable a co-decree
holder to raise a dispute with another co-decree holder and such disputes
inter se decree holders are not within the scope of Section 47. In support
of the contention that this Application amounts to an abuse of process of
law and re-litigation, the learned counsel for the Respondents referred to
and relied upon the judgment of the Supreme Court in K.K.Modi v.
K.N.Modi and others (1998) 3 SCC 573 (K.K. Modi) and, in particular,
to paragraph 44 thereof wherein the Hon'ble Supreme Court held as
under:-
“44. One of the example cited as an abuse
of process of the 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-litigation
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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 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 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 proceedings 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 chance
of the suit succeeding.”
He also relied upon the judgment of this Court in The Member Concern
Department of Post, Government of India, Ministry of
Communication v. Ms.Annapoorani and Others 2005 – 4 – L.W.,
206, wherein this Court followed the Judgment in K.K.Modi and
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concluded that the repeated filing of a number of cases and other
circumstances demonstrably shows clear abuse of process and directed
the party concerned to pay costs. He also relied upon the recent
judgment of this Court in Vijayalakshmi v. R.Balasubramaniam
2018(4) CTC 483, wherein this Court referred to the previous judgments
on the subject and directed that the original petition be struck off from
the file of the II Additional Family Judge, Chennai. With regard to the
scope of Section 47, the learned counsel referred to the judgment of the
Hon'ble Supreme Court in Jagadish Dutt and Another vs. Dharam Pal
and Others (1999) 3 SCC 644 (Jagadish Dutt), wherein, at paragraph
7, the Hon'ble Supreme Court held that a petition under Section 47 CPC is
not maintainable at the instance of the one joint decree-holder as against
the other joint decree-holder.
15. With regard to the contention that the mother of the
Respondents and Ramakrishna Mudaliar were not married, the learned
counsel for the Respondents pointed out that this Court held in T.O.S.
No.2 of 2009 that they lived as husband and wife. In fact, it is expressly
stated by the testator in the Will that they lived as husband and wife
although they were not married. In this regard, the learned counsel relied
upon the judgment of the Hon'ble Supreme Court in D.Velusamy vs.
D.Patchaiammal (2010) 10 SCC 469, wherein, at paragraph 31, the
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Hon'ble Supreme Court held that long habitation is akin to marriage
especially if the couple hold themselves out to society as spouses. On the
above basis, he pointed out that Ramakrishna Mudaliar and the mother of
the other Respondents, Saroja, admittedly co-habited for several years as
husband and wife and that this is clearly reflected in the Will of
Ramakrishna Mudaliar. Consequently, the Respondents are entitled to
succeed to the estate of Ramakrishna Mudaliar on the basis of intestate
succession.
16. I considered the submissions of the learned senior
counsel/learned counsel for the respective parties and examined the
records.
17. As stated at the outset, the question that looms large is
whether this application amounts to an abuse of process of law or re-
litigation. The facts and circumstances leading to the filing of this
application are largely undisputed. In brief, the judgment and decree in
C.S.No.43 of 1962, whereby re-conveyance of the suit schedule property
was ordered in favour of Ramakrishna Mudaliar, was restored by the
Supreme Court by order dated 17.04.1995 in C.A. No. 224 of 1974. The
said proceedings before the Supreme Court were admittedly prosecuted
by the Respondents herein, who were impleaded as the legal heirs of the
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late Ramakrishna Mudaliar, who died while the proceedings before the
Supreme Court were pending. Thus, the Supreme Court recognized the
entitlement of the Respondents herein to step into the shoes of
Ramakrishna Mudaliar and prosecute the appeal arising out of the
judgment and decree in C.S. No.43 of 1962. In fact, the Applicant herein
did not prosecute the said appeal and was arrayed as a respondent
therein but did not participate in or contest the proceeding even as a
respondent. It is also the admitted position that Application No.2872 and
2873 of 2000, which were filed against the order of the learned Master
dated 07.07.2000 refusing to implead the Respondents in E.P.No.48 of
1997, were allowed by order dated 24.08.2000 whereby it was held that
these Respondents are entitled to be made parties in E.P. No.48 of 1997
and also to the benefit of re-conveyance. This order was challenged by
the Applicant herein in O.S.A. No.372 of 2000. O.S.A. No.372 of 2000 was
admittedly rejected by order dated 11.04.2001. The SLP against the said
order was dismissed by order dated 17.04.2003. In the said order, it was
clarified that a dispute pertaining to the ownership and the extent of share
in the property should be decided in a civil suit if such a suit is filed.
Thereafter, against the rejection of the memos dated 20.11.2000, the
Respondents herein filed Application Nos.6809 to 6811 of 2014 and the
said Applications were allowed by order dated 16.02.2015. The appeals
against the said orders, namely, O.S.A. Nos.73 to 77 of 2015, were
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dismissed with exemplary costs by order dated 04.03.2016. The present
application was filed thereafter. In view of the extensive submissions
made by the contesting parties, the contentions raised herein are dealt
with briefly from the point of view of examining whether and, if so, how
they were dealt with in earlier proceedings.
18. A contention was raised that the order dated 16.02.2015
in Application Nos.6809 to 6811 of 2014 is per incuriam. In this regard,
as stated above, the said order was carried in appeal and O.S.A. Nos.73
to 77 of 2015 were dismissed with exemplary costs in a reported
judgment of the Division Bench of this Court. In paragraphs 15-19, the
Division Bench recorded findings after considering all the contentions of
the Applicant herein, including the contention that the learned single
judge exceeded jurisdiction and that the order of the learned Master is
subject to review and not appeal. In fact, the Division Bench concluded
the judgment as follows:
“20. As discussed above, we are of the
considered view that the appellant continues to
put spokes in implementing the orders passed
earlier without any legal basis. Thus, we have no
hesitation in holding that it is a clear case of
abuse of process of law through vexatious
litigation.
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21. Accordingly, we dismiss the appeals.
Cost of Rs.50,000/- (Rupees fifty thousand only)
is imposed on the appellant with the hope that the
appellant would put an end to the judicial
adventurism atleast now. The cost should be paid
by the appellant to the respondents within a
period of four weeks from the date of receipt of
copy of this order.”
Unfortunately, the imposition of costs did not deter the Applicant.
Therefore, I conclude that the Applicant cannot raise the said contention
once again in this application and that, in the facts and circumstances, it
constitutes an aggravated form of abuse of process.
19. The contention that the Respondents are not entitled to
enforce the order dated 11.04.2001 in O.S.A. No.372 of 2000 on account
of limitation is also untenable. The said judgment of the Division Bench of
this Court was affirmed by the Hon'ble Supreme Court in SLP CC No.895
of 2003 by order dated 17.04.2003. The clarification of the Supreme
Court was with regard to deciding on the share of each of the joint owners
after the re-conveyance of the property in execution proceedings.
Consequently, the said order does not detract from the entitlement of the
Respondents herein to the benefit of the decree in C.S. No.43 of 1962.
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20. The contention that the mother of the Respondents and
Ramakrishna Mudaliar were not married and that, therefore, the
Respondents herein are not entitled to succeed to the estate of
Ramakrishna Mudaliar on the basis of intestate succession is also not
valid. Once again, this issue was previously canvassed before this Court
as is evident from the findings of the learned single judge at paragraph 9
of the order dated 24.08.2000 in Application No.2872 and 2873 of 2000 in
C.S. No.43 of 1962 and from paragraph 8 of the judgment dated
11.04.2001 of the Division Bench of this Court in O.S.A. No.372 of 2000.
Therefore, the endeavour to re-canvass this issue is vexatious. The
contention that the Respondents elected to make a claim on the basis of
testamentary succession and, therefore, cannot make a claim on the basis
of intestate succession is a specious contention. It is clear from the
judgment in T.O.S. No.2 of 2009 that on account of the pending litigation
relating to the property, which is the subject matter of E.P. No.48 of 1997,
the testamentary Court concluded that the suit property should be dealt
with as if the testator died intestate. Therefore, it is clear that the claim
of the Respondents on the basis of intestate succession was not foreclosed
by the judgment in T.O.S. No.2 of 2009. In any event, as already stated,
the claim of the Respondents herein on the basis of intestate succession
was affirmed by the order dated 11.04.2001 in O.S.A. No.372 of 2001,
which was confirmed by the Supreme Court by order dated 12.04.2003.
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In the next round of litigation also, such entitlement was affirmed by
judgment dated 04.03.2016 in O.S.A. Nos.73 to 77 of 2015. Thus, the
said contention of the Applicant is rejected as untenable. It is also clear
that all the contentions that are raised herein were considered and
rejected in earlier proceedings.
21. The only other question that remains to be considered is
whether the present application is maintainable under Section 47 CPC de
hors the issue of re-litigation and abuse of process. In paragraph 7 of
Jagadish Dutt, the Hon'ble Supreme Court held that a dispute between
joint decree holders is foreign to Section 47 CPC. The said judgment
undoubtedly applies to the present application and I concur with the
contentions of the learned counsel for the Respondents in that regard.
After examining the earlier orders and being satisfied that the contentions
raised herein were canvassed previously and determined in prior
proceedings, I now propose to record conclusions on abuse of process.
22. In Hunter v. Chief Constable of the West Midlands
Police [1982] A.C. 529, the House of Lords speaking through Lord
Diplock, at page 541, held as follows on abuse of process:
“The abuse of process which the instant case
exemplifies is the initiation of proceedings in a
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court of justice for the purpose of mounting a
collateral attack upon a final decision against the
intending plaintiff which has been made by another
court of competent jurisdiction in previous
proceedings in which the intending plaintiff had a
full opportunity of contesting the decision of the
court by which it was made.”
23. In the above judgment, Lord Halsbury's speech in Reichel
v. Magrath (1889) 14 App.Cas.665 was cited where he held as under:
“...I think it would be a scandal to the
administration of justice if, the same question
having been disposed of by one case, the litigant
were to be permitted by changing the form of the
proceedings to set up the same case again.”
On perusal of the earlier orders of this Court (both single judge and
division bench) and that of the Hon'ble Supreme Court and by applying
the principles laid down in K.K. Modi and the other judgments, I have no
hesitation in concluding that the present application not only amounts to
re-litigation but also constitutes a flagrant abuse of the process of law.
Such vexatious proceedings have the effect of causing immense hardship
to the respondents therein and also results in the unjust appropriation of
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judicial time especially in the context of the large volume of cases pending
in court. Therefore, it is just and necessary to deter the filing of such
vexatious proceedings.
24. In the result, the application is dismissed with costs of
Rs.50,000/- (Rupees fifty thousand only) to be paid to the Respondents
herein and a further sum of Rs.50,000/- (Rupees fifty thousand only) to
be paid to the Chief Justice's Relief Fund, High Court, Chennai – 104.
Such amount shall be paid within four weeks from the date of receipt of a
copy of this order.
26.05.2020
Speaking/non Speaking order
Index: Yes/No
Internet: Yes/No
rrg
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SENTHILKUMAR RAMAMOORTHY, J.
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