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2011 Supreme(Mad) 2959
High Court of Judicature at Madras
C. NAGAPPAN & P.R. SHIVAKUMAR
L. Mohanam & Another
Versus
Mohamed Idris & Others
O.S.A.No.310 of 2010
Decided on : 24-06-2011
For the Appellants:Mr. S. Parthasarathy, Sr.Counsel, Mr. M. Balasubramaniam, Advocates.
For the Respondents:Mr. Sheik Nainaa, R2, Mr. S. Narayanan, Advocates.
A decree passed by a competent Court, though may be erroneous, cannot be challenged by a separate suit on the ground that any of the issues therein had been decided wrongly or erroneously. The only exception is fraud or misrepresentation by which the decree was obtained.
Headnote:
The court held that the appellant/plaintiff is not entitled to the relief of cancellation of the ex-parte decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant Judge, City Civil Court, Chennai, since the same was obtained by alleged misrepresentation on the part of the 1st respondent/1st defendant herein. The court also held that the appellant/plaintiff is not entitled to challenge the decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant City Civil Judge, Chennai, on any other vitiating factors, especially on the ground that denial of opportunity to cross-examine witnesses examined on the side of the plaintiff therein even though defence in the said suit had been struck off. Further, the court held that the appellant/plaintiff is not entitled to the relief of the declaration that he is the absolute owner of the suit property. The court also held that the appellant/plaintiff approached this court with clean hands. Lastly, the court held that the decree passed by the learned single judge in C.S.No.434 of 2007 is liable to be interfered with and set aside and that the 1st respondent/1st defendant in the suit is having redeemable right over the plaint schedule property.
Fact of the Case:
The appellant/plaintiff filed a suit for (1) a declaration declaring that the first respondent had no redeemable right over the plaint schedule properties, (2) a declaration declaring the plaintiff (appellant) to be the absolute owner of the plaint schedule property, (3) a decree cancelling the ex-parte decree dated 14.06.2006 passed by the VII Assistant Judge, City Civil Court, Chennai in O.S.No.9869/1990 as having been obtained by misrepresentation and (4) a permanent injunction restraining the defendants or anybody claiming through them in any manner interfering with the plaintiff's/appellant's peaceful possession and enjoyment of the suit property. The appellant/plaintiff claimed to have purchased the property from Ziauddin on 10.06.1988 under a registered Sale Deed dated document No.266/1988 on the file of the Sub Registrar, Sowcarpet, Chennai and spent huge amount for developing the suit property after such purchase. The appellant/plaintiff further claimed that one Ayisha Begum, claiming to be the sister of Thayub Begum filed a pauper suit in O.P.No.324 of 1986 in 1986 itself on the file of the City Civil Court, Chennai against Ziauddin and T.M.Abdul Rahman for a declaration that the Sale Deed dated 07.01.1985, namely document No.68 of 1985 registered on the file of Sub Registrar, Sowcarpet was null and void. During the pendency of the said suit, Ayisha Begum passed away and Mohamed Idris, the first respondent herein/first defendant, was impleaded as the legal heir of Ayisha Begum. Subsequently, the same came to be numbered as O.S.No.9869 of 1990 on the file of the VII Assistant Judge, City Civil Court, Chennai on 07.11.1990. On 06.11.1991 the said suit was decreed ex-parte against Ziauddin and T.M.Abdul Rahman, the defendants therein. Mohanam, the appellant herein/plaintiff, was not a party to the said suit and he was not aware of the same. After his purchase, the plaintiff Mohanam came to know about the decree, when service of summons was effected on him in a subsequent suit O.S.No.9822/1992 filed by Mohamed Idris, the first respondent herein/first defendant, on the file of the City Civil Court, Chennai for redemption of the mortgage executed under the deed dated 09.01.1970. Mohanam, the appellant herein/plaintiff, thereafter purchased the property from Ziauddin under a registered Sale Deed dated 10.06.1988 registered as document No.266/1988 on the file of the Sub Registrar, Sowcarpet, Chennai and spent huge amount for developing the suit property after such purchase.
Finding of the Court:
The court held that the appellant/plaintiff is not entitled to the relief of cancellation of the ex-parte decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant Judge, City Civil Court, Chennai, since the same was obtained by alleged misrepresentation on the part of the 1st respondent/1st defendant herein. The court also held that the appellant/plaintiff is not entitled to challenge the decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant City Civil Judge, Chennai, on any other vitiating factors, especially on the ground that denial of opportunity to cross-examine witnesses examined on the side of the plaintiff therein even though defence in the said suit had been struck off. Further, the court held that the appellant/plaintiff is not entitled to the relief of the declaration that he is the absolute owner of the suit property. The court also held that the appellant/plaintiff approached this court with clean hands. Lastly, the court held that the decree passed by the learned single judge in C.S.No.434 of 2007 is liable to be interfered with and set aside and that the 1st respondent/1st defendant in the suit is having redeemable right over the plaint schedule property.
Issues: 1. Whether the 1st Defendant in the above suit is having redeemable right over the plaint schedule property? 2. Whether the Plaintiff is entitled to the relief of the declaration that he is the absolute owner of the suit property? 3. Whether the plaintiff is entitled to the relief of cancellation of exparte decree dated 14.6.2006 passed in the suit in OS No.9869/1990 by the VII Assistant City Civil Judge, Chennai, since the same was obtained by alleged misrepresentation on the part of the 1st defendant herein? 4. Whether the Plaintiff approached this court with clean hands? 5. Whether the 1st Defendant has got title and right to convey the property in favour of the second and third defendants? 6. Whether the plaintiff is entitled to the relief of permanent injunction to protect his possession over the suit property?
Ratio Decidendi: The court held that the appellant/plaintiff is not entitled to the relief of cancellation of the ex-parte decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant Judge, City Civil Court, Chennai, since the same was obtained by alleged misrepresentation on the part of the 1st respondent/1st defendant herein. The court also held that the appellant/plaintiff is not entitled to challenge the decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant City Civil Judge, Chennai, on any other vitiating factors, especially on the ground that denial of opportunity to cross-examine witnesses examined on the side of the plaintiff therein even though defence in the said suit had been struck off. Further, the court held that the appellant/plaintiff is not entitled to the relief of the declaration that he is the absolute owner of the suit property. The court also held that the appellant/plaintiff approached this court with clean hands. Lastly, the court held that the decree passed by the learned single judge in C.S.No.434 of 2007 is liable to be interfered with and set aside and that the 1st respondent/1st defendant in the suit is having redeemable right over the plaint schedule property.
Final Decision: The court dismissed the appeal.
P.R. Shivakumar, J.
1. Plaintiff in C.S.No.434 of 2007 on the file of this court in its ordinary original civil jurisdiction is the appellant in the Original Side Appeal. The suit had been filed for (1) a declaration declaring that the first respondent had no redeemable right over the plaint schedule properties, (2) a declaration declaring the plaintiff (appellant) to be the absolute owner of the plaint schedule property, (3) a decree cancelling the ex-parte decree dated 14.06.2006 passed by the VII Assistant Judge, City Civil Court, Chennai in O.S.No.9869/1990 as having been obtained by misrepresentation and (4) a permanent injunction restraining the defendants or anybody claiming through them in any manner interfering with the plaintiff's/appellant's peaceful possession and enjoyment of the suit property.
2. Initially the suit was filed against Mohamed Idris, the first respondent alone showing him to be the sole defendant. Subsequently, as per order dated 20.10.2008 made in A.No.1347/2008, respondents 2 and 3 were impleaded as defendants 2 and 3. The suit was resisted by the first defendant by filing a written statement. After their impleadment defendants 2 and 3 also filed wirtten statement and thereafter the appellant/plaintiff filed a reply statement. At the conclusion of the trial, the learned single judge of this court dismissed the suit with costs by judgment and decree dated 26.07.2010 and the said decree is impugned in this appeal.
3. The plaint averments in brief, are as follows:-
i) The suit property bearing old door No.13 and the present door No.148, Portuguese Church Street in George Town, Chennai – 600 001 belonged to one Thayub Begum. During her life time, she mortgaged the said property by a registered simple Mortgage Deed dated 09.01.1970 bearing document No.14/1970 in favour of one Indra Kanvar Bai Taleda for a sum of Rs.9,000/- agreeing to repay the said amount with an interest at the rate of 18% per annum. The parties to the Mortgage Deed mutually agreed for the sale of the mortgaged property by public auction or by private negotiation under Section 69 of the Transfer of Property Act in case of default in repayment of the debt secured by the mortgagee. The mortgagor was unable to discharge the mortgage debt and without discharging the debt she died intestate on 01.04.1978. Thereafter, the mortgagee Indra Kanvar Bai Taleda assigned the mortgage in favour of T.M.Abdul Rahman under a Deed of Assignment dated 27.12.1984 registered as document No.3543/1984 on the file of Sub Registrar, Chennai-North. Meanwhile, the Income Tax department attached the rental income from the tenants of the suit property for the recovery of the Income Tax dues of Thayub Begum (the original mortgagor). One Nasreen Begum, the adopted daughter of Thayub Begum, unable to pay the income tax dues, took steps along with T.M.Abdul Rahman to bring the suit property for public auction through M/s.Murray & Company. In view of the subsisting attachment of rents by the Income Tax department, there was no bidder to bid at the auction. Therefore, the assignee-mortgagee entered into a private sale transaction with one Ziauddin on 07.01.1985 and the said Nasreen Begum also joined him as a confirming party in executing the Sale Deed registered as document No.68 of 1985 on the file of the Sub Registrar, Sowcarpet. The Purchaser Ziauddin paid a portion of the sale consideration directly to the Income Tax department towards the tax dues and got the property released from the attachment and paid the balance amount of sale consideration to the assignee of the mortgage, namely T.M.Abdul Rahman. Mohanam, the appellant/plaintiff, thereafter purchased the property from Ziauddin under a registered Sale Deed dated 10.06.1988 registered as document No.266/1988 on the file of the Sub Registrar, Sowcarpet, Chennai and spent huge amount for developing the suit property after such purchase.
ii) One Ayisha Begum, claiming to be the sister of Thayub Begum fil
