IN THE HIGH COURT OF JUDICATURE AT MADRAS Orders reserved on Orders pronounced on

10.08.2021 03.09.2021 Coram THE HONOURABLE Mr. JUSTICE G.CHANDRASEKHARAN C.R.P.(PD) No.680 of 2021 and C.M.P.No.5830 of 2021 Sarojamani ... Petitioner Vs

1. Sathyanath

2. Premnath ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and decreetal order dated 03.10.2019 made in I.A.No.399 of 2018 in O.S.No.95 of 2016 on the file of III Additional District and Sessions Court, Coimbatore.

For Petitioner .. Mr.S.Mukunth for M/s.Sarvabhauman Associates For Respondents .. Mr.C.Santhosh Kumar

ORDER

This Civil Revision Petition is filed to set aside the order passed by the learned III Additional District and Sessions Court, Coimbatore, in https://www.mhc.tn.goIv..Ain/j.uNdiso/.399 of 2018 in O.S.No.95 of 2016 on 03.10.2019.

2. I.A.No.399 of 2018 was filed under Order 14 Rule 2(2) of CPC to try the following issues as preliminary issues:-

1. Whether the suit is not hit by resjudicata and estoppel as claimed by the defendant in the written statement in para-10 & 11.

2. Whether the suit is not hit by resjudicata and estoppel as claimed by the defendant in the written statement in para-12.

3. Whether the suit is not barred by limitation as contended by the defendant in the written statement in para-13.

4. Whether the plaintiffs have deliberately and wantonly abused the process of the court, as contended by the defendant in the written statement in para-15 and 16.

5. Whether the suit is not valued properly and court fee paid is deficient as claimed by the defendant in para-18 of the written statement.

(The aforesaid issued are reproduced as typed in the petition. Issues 1 and 2 are duplication of a single issue as to, Whether the suit is hit by resjudicata and estoppel as claimed by the defendant in the written statement )

3. The case of the petitioner/defendant is that the subject matter of the suit was long back decided in three previous suits and the respondents/plaintiffs have completely suppressed those proceedings. This suit is barred by limitation, principle of resjudicata,estoppel and by abuse of process of Court. Not only that this suit is undervalued and proper court fee is not paid. Therefore, the above issues have to be decided as preliminary issues. That petition was resisted by the respondents/plaintiffs alleging that the petitioner/defendant filed I.A.No.1096 of 2016 for rejection of plaint with frivolous allegations. That petition was disposed of on 20.06.2017 with the finding that the suit cannot be rejected for the reasons that the suit is not barred by any law and the relief was claimed on the basis of cause of action. Therefore, respondents/plaintiffs prayed for the dismissal of this petition. Considering the rival submissions, learned trial Judge dismissed the petition. Against the order of dismissal, the present Civil Revision Petition is filed.

4. Learned counsel for the petitioner submitted that title to the suit property was decided in O.S.No.125 of 2005 by the learned District Munsif, Coimbatore. The settlement deed dated 02.09.2004 executed in favour of respondents/plaintiffs by their mother was set aside. The issues to be tried in this suit were already decided in the earlier suit. Therefore, this suit is barred by the principle of resjudicata and limitation. The respondents have knowledge about the exparte decree even in 2005, but the present suit is filed only in 2016. Thus, it is clear that the suit is barred by limitation. Therefore, an application was filed to try the issues on limitation, resjudicata and estoppel as preliminary issues and the trial Court has wrongly dismissed the petition. Learned counsel for the petitioner/defendant prayed for setting aside the order of the trial Court and allow this Civil Revision Petition.

5. In response, learned counsel for the respondents submitted that the issues as to whether the suit is barred by limitation, resjudicata and estoppel inv