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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. Velumani, J.
Velayutham – Petitioner
Versus
Sellamuthu – Respondent
C.R.P. (PD) No. 4226 of 2017
Decided On : 06-09-2021
CONSTITUTION of India,1950 - Article 227 – Civil Procedure Code, 1908 - Section 11, Order II, IX , XXIII - Rule 2 , 9 and 1(4) - Petitioner is defendant in O.S.No.187 of 1997 on file of District Munsif Court - Suit property - Peaceful possession and enjoyment - Suit for permanent injunction - Respondent filed said suit for permanent injunction, restraining petitioner from interfering with his peaceful possession and enjoyment of suit property - Petitioner filed written statement and additional written statement and is contesting suit - Petitioner, filed I.A.No. under Order VII Rule 11 of C.P.C., to reject plaint in O.S.No. - According to petitioner, the suit property belongs to him and is enjoying the suit property - He handed over suit property to one - With permission of petitioner, the said three persons were cultivating in suit property - Said died issue less, died leaving his son; died leaving his sons - After their death, legal heirs viz., were enjoying suit property and cultivating with permission of petitioner - Whether re-litigation amounts to abuse of process of court is no longer res integra – Held, petitioner raised a ground that respondent's wife was a party to suit filed by him - At time of arguments, learned counsel appearing for petitioner stated that said ground has been raised mistakenly - Learned counsel appearing for the petitioner contended that respondent is re-litigating issue, suppressed material fact and has not approached Court with clean hands and therefore, plaint must be rejected - There is no material to show that respondent is re-litigating issue and what are all materials he has suppressed - Contention of learned counsel for petitioner that plaint has to be rejected, in application filed under Order VII Rule 11 of C.P.C., on ground of res judicata is without merits and is liable to be rejected - Judgments relied on by learned counsel for the petitioner do not relate to the issue in present proceedings and do not advance case of petitioner - Learned Judge has considered all materials in proper perspective, exercised his jurisdiction properly and dismissed I.A - There is no error in order of learned Judge, warranting interference by this Court - Civil Revision Petition is dismissed.
Certainly. Based on the provided legal document, here are the key points:
The petitioner, who is the defendant in the suit, filed an application under Order VII Rule 11 of the Civil Procedure Code (C.P.C.) to reject the plaint, claiming that the suit was barred by principles of res judicata due to a prior decree obtained in a different suit (!) (!) .
The petitioner contended that the previous suit (O.S.No.140 of 1997) resulted in a decree in his favor, declaring his ownership and possession of the suit property, which should bar the subsequent suit filed by the respondent for injunction (!) (!) .
The respondent countered that the application under Order VII Rule 11 was not maintainable because the grounds of res judicata involve questions of law and fact that can only be decided after a full trial, not at the summary stage of rejection of plaint (!) (!) .
It was clarified that the scope of Order VII Rule 11 does not include the rejection of a plaint based on the plea of res judicata, as this involves an examination of pleadings, issues, and evidence, which are beyond the scope of a summary rejection (!) .
The court considered the provisions of Section 11 of the C.P.C., which defines res judicata, and observed that for such a plea to succeed, there must be a final judgment on the same matter, between the same parties or their successors, involving the same issues, which was not established in this case (!) .
The court noted that only the averments in the plaint are relevant for deciding an application under Order VII Rule 11, and that the defendant’s written statements, affidavits, or documents filed cannot be considered at this stage (!) .
The court emphasized that the application for rejection of plaint on the ground of res judicata is not sustainable, as the issue requires a detailed examination during trial, not at the initial stage of the suit (!) .
The court also addressed the petitioner’s argument regarding the alleged suppression of material facts and re-litigation, concluding that there was no sufficient material to support such claims, and that the order dismissing the application was proper (!) .
The court upheld the order of the lower court, which dismissed the application under Order VII Rule 11, and dismissed the civil revision petition, noting that the suit would be transferred for expeditious disposal (!) .
It was directed that the suit, pending since 1997, should be disposed of within six months from the receipt of the order, to ensure a prompt resolution (!) .
JUDGMENT :
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 21.04.2017 made in I.A.No.302 of 2017 in O.S.No.187 of 1997 on the file of the District Munsif Judge, Perambalur.)
1. This Civil Revision Petition is filed to set aside the fair and decreetal order dated 21.04.2017 made in I.A.No.302 of 2017 in O.S.No.187 of 1997 on the file of the District Munsif Court, Perambalur.
2. The petitioner is defendant in O.S.No.187 of 1997 on the file of the District Munsif Court, Perambalur. The respondent filed the said suit for permanent injunction, restraining the petitioner from interfering with his peaceful possession and enjoyment of the suit property. The petitioner filed written statement on 21.10.1999 and additional written statement on 29.11.2016 and is contesting the suit. The petitioner, on 09.01.2017, filed I.A.No.302 of 2017 under Order VII Rule 11 of C.P.C., to reject the plaint in O.S.No.187 of 1997. According to the petitioner, the suit property belongs to him and is enjoying the suit property. He handed over the suit property to one Ramasamy, Duraisamy and Ponnusamy. With the permission of the petitioner, the said three persons were cultivating in the suit property. The said Ramasamy died issue less, Duraisamy died leaving his son Kulandhaivel; and Ponnusamy died leaving his sons Muthusamy and Krishnamoorthy. After their death, the legal heirs viz., Kulandhaivel, Muthusamy and Krishnamoorthy were enjoying the suit property and cultivating with the permission of the petitioner. They do not have any title with regard to the suit property. Ramasamy did not have any right to sell 1 acre and 17 cents of suit property to Periyasamy in the year 1970. Similarly, Muthusamy and Krishnamoorthy, sons of Ponnusamy also did not have any right to sell 1 acre and 17 cents of suit property on 11.07.1984 to Periyasamy. The sale deeds dated 23.06.1970 and 11.07.1984 are executed without having any legal right and are void documents. The said documents are not binding on the petitioner.
2(i) The petitioner filed O.S.No.140 of 1997 against Kulandhaivel, Muthusamy, Krishnamoorthy, Periyasamy, Ramayee and Thangavel, for declaration and possession of the suit property. The said suit was decreed by the judgment and decree dated 16.09.2004. No appeal was filed against the said judgment and decree. Contrary to the decree dated 16.09.2004, the sale deed executed by Periyasamy in favour of the respondent is not valid. The said decree is binding on the respondent also. The sale deeds dated 11.07.1984 and 22.04.1997 are not legally valid documents. The present suit filed by the respondent against the petitioner is not correct and not valid. The present suit is barred by Section 11 of C.P.C. and plaint has to be rejected. The cause of action for both the suits are one and the same and prayed for rejection of plaint in O.S.No.187 of 1997, filed by the respondent.
3. The respondent filed counter affidavit and stated that the respondent purchased the suit property by deed of sale dated 22.04.1997. The petitioner filed O.S.No.140 of 1997 on 30.04.1997, only against the vendors of the respondent and respondent was not added as party defendant in the said suit. The vendors of the respondent have no interest in the suit property on the date of filing of the suit. The alleged decree in O.S.No.140 of 1997 will not bind the respondent. The respondent, neither in the written statement nor in the additional written statement, raised this issue and it amounts to waiving of imaginary right. The petitioner has come out with the present I.A. at the appellate stage, when the suit was posted for cross-examination of P.W.1. Even after coming to know of the purchase by the respondent, the petitioner did not implead the respondent in the suit in O.S.No.140 of 1997. With collusion of the vendors of the respondent, the petitioner obtained decree in the said suit. The said suit is not binding on
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