Indian Kanoon - Search engine for Indian Law

This Civil Revision Petition is filed to set aside the fair and decreetal order dated 11.11.2019 made in O.S.No.71 of 2014 on the file of the learned Principal Subordinate Judge, Tindivanam. https://www.mhc.tn.gov.in/judis

2.Mr.N.Suresh, learned Counsel for the Revision Petitioner submitted his arguments.

3.The learned Counsel for the Revision Petitioner submitted that the Defendant in O.S.No.71 of 2014 on the file of the learned Principal Subordinate Judge, Tindivanam, had filed this Revision Petition under Article 227 of the Constitution of India. The learned Counsel for the Revision Petitioner submits that the suit had been filed by the Plaintiff in O.S.No.71 of 2014, who is none other than the 4th Defendant in O.S.No.612 of 1989, on the file of the learned District Munsif, Tindivanam. The learned Counsel for the Revision Petitioner further submitted that the Revision Petitioner herein and the father of the Revision Petitioner had filed the suit in O.S.No.612 of 1989, regarding the property in S.No.352. The Plaintiffs in O.S.No.612 of 1989 sought for declaration of title and for permanent injunction. In the said suit, there were four Defendants. All the Defendants had engaged Counsel Thiru.Malarmarban. Defendants were not present in Court, whereas the learned Counsel for Defendants was present in Court. Therefore, they were set ex-parte and trial proceeded. The Plaintiffs were examined. Based on the evidence of https://www.mhc.tn.gov.in/judis Plaintiffs and the document relied by the Plaintiffs in support of the contention in the plaint, the ex-parte decree was granted on 23.03.1990 in O.S.No.612 of 1989. After passing of the ex-parte decree, the four Defendants in O.S.No.612 of 1989 did not file any Petition to set aside the ex-parte decree or file any Appeal against the ex-parte decree. The same had attained finality. While so, the 4th Defendant in O.S.No.612 of 1989 had filed the suit in O.S.No.71 of 2014 against the Plaintiffs in O.S.No.612 of 1989, who were the Defendants in O.S.No.71 of 2014. After receipt of summons, the Revision Petitioner herein as Defendant in O.S.No.71 of 2014 had entered appearance and filed written statement, disputing the averments in the plaint. It is specifically stated that there was an ex-parte decree granted in their favour in the earlier suit in O.S.No.612 of 1989. Therefore, the suit in O.S.No.71 of 2014 is nothing but an abuse of the process of Court, it is barred by res judicata and also barred by limitation.

5.Aggrieved by the same, the Defendant in O.S.No.71 of 2014 on the file of the learned Principal Subordinate Judge, Tindivanam, had approached this Court filed Civil Revision Petitions in C.R.P.No.1190 of 2018 and C.R.P.No.411 of 2019, to reject the plaint and also to vacate the injunction. The learned Judge of this Court had disposed of these Civil Revision Petitions by a common order dated 04.06.2019. In the concluding portion of the order passed by the learned Single Judge of this Court, there was a specific direction to the learned Principal Subordinate Judge, Tindivanam, to consider the preliminary issue regarding maintainability of the suit and dispose of the suit accordingly. In the light of the above direction issued by this Court in C.R.P.No.1190 of 2018 and C.R.P.No.411 of 2019 by a common order dated 04.06.2019, the learned Principal Subordinate Judge, Tindivanam, had heard the preliminary issue regarding maintainability of the suit and rejected the contention of the Defendant in O.S.No.71 of 2014 stating that the Defendants in O.S.No.612 of 1989 had not furnished documents. It is the specific case of the Revision Petitioner that there was an ex-parte decree earlier between the same parties and also https://www.mhc.tn.gov.in/judis filed certified copies of the earlier proceedings along with the written statement. However, the learned Principal Subordinate Judge, Tindivanam, failed to consider the same and rejected the contention.

21.Here, the earlier suit was not disposed of answering the issues raised in the earlier suit. Issues were not framed as the Defendants failed to file written statement in the earlier suit.

22.Therefore, the contention of the learned Counsel for the Defendant before the Trial Court was rejected by the learned Principal Subordinate Judge, Tindivanam, claiming that merely based on pleadings, https://www.mhc.tn.gov.in/judis the Court is unable to arrive at the conclusion that the suit is barred by res judicata. Also, the learned Trial Judge had in the order, rejecting the raising of preliminary issues stating that only while answering all the issues to dispose of the suit, the points raised by the Defendant regarding res judicata also to be considered. Based on evidence as it is not strictly to be considered on legal propositions. The res judicata raised in this case is a mixed question of fact and law. Therefore, without recording evidence, the Court is unable to decide preliminary issues on the basis of pleadings alone. The said observation of the learned Principal District Munsif, Tindivanam, is found to be a well-reasoned order in the facts and circumstances of this case. Therefore, as rightly pointed out by the learned Counsel for the Respondent based on the rulings cited above by the learned Counsel for the Respondent, the well-reasoned order of the learned Principal Subordinate Judge, Tindivanam, rejecting the contention of res judicata merely on the basis of pleadings, does not warrant any interference by this Court under Article 227 of the Constitution of India. Also, in the reported rulings cited above by the learned Counsel for the Respondent stated that raising preliminary issues is not mandatory, it is left to the discretion of the Civil Court to dispose of the suit along with other https://www.mhc.tn.gov.in/judis issues after full trial. The preliminary issues can be raised only in circumstances that either the jurisdiction of the Court is barred or the institution of the suit is barred by any law in the statute. Here, in this case, those circumstances does not arise. Therefore, the learned Principal Subordinate Judge, Tindivanam, had refused to answer the preliminary issues. Only on the circumstances of the pleadings of the Plaintiff in the plaint and written statement of the Defendant stating it is relegated to the consideration of the trial in the suit to be answered on the basis of evidence adduced by both parties during trial and it can be answered along with other issues after conclusion of the trial. The said observation of the learned Principal Subordinate Judge, Tindivanam, is found acceptable in the peculiar facts and circumstances of this case. Therefore, in the light of the reported rulings, the submission of the learned Counsel for the Respondent is accepted and the submission of the learned Counsel for the Revision Petitioner is rejected. As claimed by the learned Counsel for the Respondent, the Civil Revision Petition has no merit and is to be dismissed.

23.The point for consideration is answered against the Revision Petitioner and in favour of the Respondent.

https://www.mhc.tn.gov.in/judis

24.The order passed by the learned Principal Subordinate Judge, Tindivanam, rejecting the claim of res judicata to be considered as preliminary issues. Further, in the order the learned Principal Subordinate Judge, Tindivanam, stating that it can be considered along with other issues framed in the suit in the trial for disposal of the entire suit as per Order XIV, Rule 2 of Civil Procedure Code. The order of the learned Principal Subordinate Judge, Tindivanam, rejecting the contention of the Defendant in the suit is well reasoned order which does not warrant any interference by this Court exercising the discretion under Article 227 of the Constitution of India. Therefore, the order passed by the learned Principal Subordinate Judge, Tindivanam, refusing to consider the preliminary issues based on pleadings alone and relegating the preliminary issues to be considered along with other issues in the conclusion of the trial after full trial is confirmed.