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2019 Supreme(Mad) 1214
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Basheer Alias Abdul Basheer & Others - Appellants
Versus
N. Kandasamy & Others - Respondents
C.R.P.(PD)Nos. 1245 & 2741 of 2017 & 3447, 3452, 3827 & 4159 of 2018 & 85 of 2019 & C.M.P. Nos. 12721, 12989 & 5870 of 2017 & 740 of 2019
Decided On : 09-07-2019
For the Appearing Parties:Sricharan Rangarajan, Special Government Pleader, V. Ayyadurai, Senior Counsel, A.E. Ravichandran, S.P. Arthi, K. Mahalingam, N. Manokaran, S.R. Sundar, N. Sudharsan, S. Rajasekar, Advocates
The main legal point established in the judgment is that a suit can be barred by the provisions of Order II Rule 2 of the Code of Civil Procedure if the plaintiff omits to sue for a relief that existed at the time of filing the earlier suit, and subsequently files a new suit seeking the omitted relief. Additionally, re-litigation and abuse of process of Court can also lead to the striking off of a plaint.
Headnote:
Abuse of Process of Court - Civil Revision Petitions - Order II Rule 2 - The court considered the suits O.S.No.39 of 2017 and O.S.No.1740 of 2017 and concluded that the suits were not barred by Order II Rule 2 as the cause of action for the two suits were different. However, the suit O.S.No.1740 of 2017 was found to be barred by the provisions of Order II Rule 2 as the plaintiffs omitted to sue for the relief to declare the ex parte decree in O.S.No.8667 of 1985 as null and void, even though the cause of action existed when the suit O.S.No.39 of 2017 was filed. The court also found the suit to be a case of re-litigation and abuse of process of Court, and consequently struck off the plaint in O.S.No.1740 of 2017.
Fact of the Case:
The plaintiffs filed suits O.S.No.39 of 2017 and O.S.No.1740 of 2017 seeking various reliefs related to a property dispute. The defendants filed Civil Revision Petitions to strike off the plaints, alleging abuse of process of the Court, re-litigation, and violation of Order II Rule 2 of the Code of Civil Procedure.
Finding of the Court:
The court found that the suits were not barred by Order II Rule 2, as the cause of action for the two suits were different. However, the suit O.S.No.1740 of 2017 was found to be barred by the provisions of Order II Rule 2, and also a case of re-litigation and abuse of process of Court. Consequently, the court struck off the plaint in O.S.No.1740 of 2017.
Issues: The main issues were whether the suits were barred by Order II Rule 2 of the Code of Civil Procedure, and whether the suits constituted re-litigation and abuse of process of Court.
Ratio Decidendi: The court held that the suits were not barred by Order II Rule 2, as the cause of action for the two suits were different. However, the suit O.S.No.1740 of 2017 was found to be barred by the provisions of Order II Rule 2, and also a case of re-litigation and abuse of process of Court. The court relied on legal provisions and precedents to support its decision.
Final Decision: The Civil Revision Petitions were allowed, and the suit in O.S.No.1740 of 2017 was struck off from the file. The C.R.P.Nos.1245 of 2017 and C.R.P.No.85 of 2019 were dismissed. No costs were awarded.
(Prayer in C.R.P.(PD)No.1245 of 2017: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.39 of 2017 on the file of the District Munsif, Chengalpattu.
C.R.P.(PD)No.2741 of 2017: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.1740 of 2017 on the file of the XVIII Assistant City Civil Court, Chennai.
C.R.P.(PD)No.3447 of 2018: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.1740 of 2017 on the file of the XVIII Assistant City Civil Court, Chennai.
C.R.P.(PD)No.3452 of 2018: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.1740 of 2017 on the file of the XVIII Assistant City Civil Court, Chennai.
C.R.P.(PD)No.3827 of 2018: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.1740 of 2017 on the file of the XVIII Assistant City Civil Court, Chennai.
C.R.P.(PD)No.4159 of 2018: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.1740 of 2017 on the file of the XVIII Assistant City Civil Court, Chennai.
C.R.P.(PD)No.85 of 2019: Civil Revision Petition is filed under Article 227 of the Constitution of India to strike-off the plaint in O.S.No.39 of 2017 on the file of the District Munsif, Chengalpattu.)
1. Civil Revision Petitions Nos.2741 of 2017, 3447 of 2018, 3452 of 2018, 3827 of 2018 and 4159 of 2018 have been filed by the various defendants to the suit O.S.No.1740 of 2017 to strike of the plaint. C.R.P.Nos.1247 of 2017 and 85 of 2019 are once again filed by some of the defendants in O.S.No.39 of 2017 and O.S.No.1740 of 2017 to reject the plaint in O.S.No.195 of 2011. The three suits have been instituted by the very same plaintiffs. The details of the defendants and the respective Civil Revision Petitions are given in the table below:
S. No
C.R.P.No.
Petitioners in Revision Petition and their Rankings in O.S.No.1740 of 2017
1.
C.R.P.No.1245 of 2017
Abdul Basheer and 8 others (defendants 1 to 8 & 10)
2.
C.R.P.No.2741 of 2017
Muktarunissa and 3 others (defendants 1 to 4)
3.
C.R.P.No.3447 of 2018
Gulam Khader and 5 others (defendants 26 to 31)
4.
C.R.P.No.3452 of 2018
Mehrunisa Bee (25th defendant)
5.
C.R.P.No.3827 of 2018
Sarunisa and 7 others (defendants 15, 17 to 23)
6.
C.R.P.No.4159 of 2018
Basheer @ Abdul Basheer & 8 others (defendants 5 to 13)
7.
C.R.P.No.85 of 2019
G.Saravanan (11th defendant)
The subject matter of all the three suits are the same.
2. Though extensive arguments have been put forward spread over a few hours, however, the sum and substance of all the arguments put together by the various revision petitioners is that the suit in O.S.No.1740 of 2017 and O.S.No.39 of 2017 deserves to be struck off from the file on the ground that:
(a) Abuse of process of the Court
(b) Re-litigatio
(c) Barred by the provisions of Order II Rule 2 of the Code of Civil Procedure.
3. Before proceeding to consider the arguments, it is necessary to place the factual matrix in perspective. The plaintiffs in the suit O.S.No.1740 of 2017 had in the year 2011 filed a suit O.S.No.195 of 2011 on the file of the District Munsif, Chengalpattu against the 13th defendant in the suit O.S.No.1740 of 2017, who is the 10th defendant in the suit O.S.No.39 of 2017 and the District Collector, Kancheepuram and the Tahsildar, Chengalpattu. The said suit was filed for seeking a decree for permanent injunction in respect of -
“(a) Restraining the defendants 1 to 3 from in any way acting on the basi
