At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE M.DURAISWAMY & THE HONOURABLE MR. JUSTICE SUNDER MOHAN
For the Appellant: R. Venkataraman, Advocate. For the Respondents: R2, S. Senthilnathan, Advocate.
(Prayer: Appeal filed under Order 36 rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent Act against the decreetal order and order made in O.P.No.849 of 2017 dated 26.11.2019.)
M. Duraiswamy, J.
1. Challenging the order passed in Application No.35 of 2020 in C.S.No.689 of 2019, the plaintiff has filed the above appeal.
2. The plaintiff filed the suit in C.S.No.689 of 2019 to declare that they are the absolute owners of the suit property by virtue of the registered Sale Deeds dated 16.11.1957 and 15.12.1957 and for declaration that the judgment and decree dated 29.12.1969 passed in O.S.No.2395 of 1966 on the file of the XVIII Assistant Judge, City Civil Court, Chennai in favour of the defendants as illegal, invalid, void, inoperative and not binding on the plaintiff in respect of the suit property. The plaintiff also prayed for consequential relief of injunction.
3. In the said suit, the defendants took out an application in A.No.35 of 2020 under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint. In the affidavit filed in support of the application, the defendants contended that the suit in O.S.No.2395 of 1966 was filed for partition and a preliminary decree was passed in their favour. Subsequent to the passing of the preliminary decree, the defendants in the present suit filed a final decree application and a final decree was also passed. Challenging the same, a First Appeal was filed and the Lower Appellate Court also confirmed the judgment and decree of the trial Court. Challenging the same, the aggrieved parties filed Second Appeal in S.A.No.1442 of 1989.
4. It is pertinent to note that the appellant herein was also a party to the said Second Appeal. This Court, by its judgment and decree dated 21.01.2003, dismissed the Second Appeal and confirmed the judgment and decree of the Lower Appellate Court. Aggrieved over the same, a Special Leave Petition was filed before the Hon'ble Supreme Court and the Apex Court also dismissed the Special Leave Petition, by confirming the judgment and decree of this Court made in S.A.No.1442 of 1989.
5. When the appellant was a party to the Second Appeal in S.A.No.1442 of 1989, they remained silent for more than 16 years (i.e.) till 2019 and thereafter, filed the present suit in C.S.No.689 of 2019 to set aside the judgment and decree passed in O.S.No.2395 of 1966. The conduct of the plaintiff in filing the present suit would establish that their only aim is to prevent the plaintiff in O.S.No.2395 of 1966 from enjoying the fruits of the decree.
6. It is also pertinent to note that the appellant/plaintiff is admittedly the successor in interest of one of the defendants in the said suit, viz., S.V.Pattu Vathiyar. When the appellant was a party to the Second Appeal, they cannot plead that they were ignorant of the decree passed in O.S.No.2395 of 1966. The learned Single Judge, while allowing the application filed under Order 7 Rule 11 by the respondents/ defendants, rightly observed that the plea of res judicata would have to be rejected merely because the appellant/plaintiff made the statement in the plaint that their title to the suit property was not decided in earlier Court proceedings, which are referred to in the plaint. The learned Single Judge also examined the preliminary decree in O.S.No.2395 of 1966 and found that from paragraph-7 in the said judgment, the trial Court concluded that the respondents/defendants' father established his title over the suit property and that the grandfather of the partners of the plaintiff failed to establish title.
7. It is also pertinent to note that the appellant/plaintiff has not taken the plea of fraud or mistake in the present suit. The learned Single Judge has rightly concluded that the cause of action mentioned in the plaint is illusory and that the suit is vexatious and irresponsible. When the final decree passed in O.S.No.2395 of 1966 has become final, the filing of the present suit is vexatious. The learned Single Judge has rightly allowed the application.
8. The learned counsel for the appellant, in support of his contention, relied upon an un-reported judgment of the Apex Court dated 09.08.2021 made in Civil Appeal No.4665 of 2021 [Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors.].
9. In the said judgment, the Hon'ble Su
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preme Court dealt with the scope of Order 7 Rule 11 of the Code of Civil Procedure and the said ratio cannot be applied to the facts and circumstances of the present case. 10. For the reasons stated above, we do not find any ground to interfere with the order passed by the learned Single Judge. The appeal is devoid of merits and is liable to be dismissed. Accordingly, the Original Side Appeal is dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.