High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.8.2007C O R A MThe Honourable Mr. Justice M.JAICHANDREN S.A.No.2268 of 20031. S.Azhagesan 2. Dayalu Ammal3. Karunanidhi4. Pandian5. Neelavathi6. Amirthavalli .. AppellantsVersusThangavelu .. Respondent- - - - -PRAYER : Second Appeal against the judgment and decree dated20.6.2003 in A.S.No.3 of 2001 on the file of the Sub Court, atTiruvarur, reversing the judgment and decree, dated 19.10.2000 madein O.S.No.217 of 1998, on the file of the District Munsif Court,Thiruthuraipoondi. - - - - - For Appellants : Mr.Srinath Sridevan For Respondent : Mr.Sathia Murthi - - - - -J U D G M E N TThe second appeal has been filed against the judgment anddecree, dated 20.6.2003, made in A.S.No.3 of 2001, on the file ofthe Sub Court, Tiruvarur, reversing the judgment and decree, dated19.10.2000, made in O.S.No.217 of 1998, on the file of the DistrictMunsif Court, Thiruthuraipoondi.2. The second defendant in the suit O.S.No.217 of 1998, on thefile of the District Munsif Court, Thiruthuraipoondi, who was thesecond respondent in A.S.No.3 of 2001, on the file of the Sub Court,Tiruvarur, along with the respondents 3 to 7 in the said appeal arethe appellants in the present second appeal in S.A.No.2268 of 2003before this Court. https://hcservices.ecourts.gov.in/hcservices/

3. The suit in O.S.No.217 of 1998, had been filed by theplaintiff for the relief of bare injunction. The property inquestion is 0.11 acres of dry land in Survey No.1333/1A atKarayankadu Village in Thiruthuraipoondi Taluk. The suit inO.S.No.217 of 1998, had been dismissed by the District Munsif Court,Thiruthuraipoondi, by its judgment and decree, dated 19.10.2000. 4. Aggrieved by the judgment and decree of the trial Court, therespondent in the present second appeal had preferred an appealbefore the Sub Court, Tiruvarur, in A.S.No.3 of 2001. The lowerappellate Court had reversed the judgment and decree, dated19.10.2000, made in O.S.No.217 of 1998, and had decreed the suit, byits judgment and decree, dated 20.6.2003. Aggrieved by the judgmentand decree of the lower appellate Court, dated 20.6.2003, thepresent second appeal has been preferred by the appellants. 5. The suit had been filed by the plaintiff stating that theplaintiff and his family members have been in possession andenjoyment of the suit property for a long period of time. No oneelse including the defendants have ever been in enjoyment of thesuit property. Since the defendants had tried to interfere with thepeaceful possession and enjoyment of the suit property by theplaintiff on an earlier occasion, the plaintiff had filed the suitin O.S.No.225 of 1993. Since the plaintiff was unwell, he could notbe present in Court during the assigned date fixed for the hearingof the suit and therefore, the said suit had been dismissed for non-prosecution, on 17.4.1996. However, the plaintiff has beenconstrained to file the suit in O.S.No.217 of 1998, due to theconstant threat by the defendants and their men by their attempts todisturb the peaceful possession and enjoyment of the suit propertyby the plaintiff. 6. The defendants in the suit had denied the claims made by theplaintiff and had stated that the suit property belonged to them.Since the plaintiff had disputed the title of the defendants withregard to the suit property, the plaintiff ought to have filed asuit for declaration and not for a bare injunction. 7. It was also stated by the defendants that the suit cannot besustained in law, since the description of the boundaries of thesuit property was wrong. The defendants had also stated that sincethe earlier suit filed by the plaintiff in O.S.No.225 of 1993, hadbeen dismissed for non-prosecution, it is not open to the plaintiffto file a fresh suit once again for the same cause of action, as itwould be hit by the principal of res judicata. 8. Based on the rival claims made on behalf of the plaintiff aswell as the defendants, the trial Court had framed the followingissues for consideration: https://hcservices.ecourts.gov.in/hcservices/ "1. Whether the suit is maintainable?2. Whether it is true that the suitproperty was possessed by the plaintiff and wasunder his enjoyment at the time of suit?3. Whether the relief of permanentinjunction as prayed for in respect of the suitproperty is to be granted to the plaintiff?4. What other reliefs the plaintiff isentitled to in the suit?"9. The trial Court, after framing the relevant issues forconsideration and based on the averments made on behalf of theplaintiff and the defendants, had dismissed the suit, accepting thecontentions raised on behalf of the defendants, by its judgment anddecree, dated 19.10.2000. 10. Aggrieved by the judgment and decree of the District MunsifCourt, Thiruthuraipoondi, dated 19.10.2000, made in O.S.No.217 of1998, the plaintiff in the suit had filed an appeal in A.S.No.3 of2001, before the Sub Court, Tiruvarur.11. The lower appellate Court had framed the following pointsfor consideration:"1. Whether the appeal can be allowed bysetting aside the judgment and decree of thetrial Court?2. What reliefs the appellant is entitledto?"12. Based on the averments made on behalf of the plaintiff aswell as the defendants and on the evidence available on record, thelower appellate Court had allowed the appeal and decreed the suit infavour of the plaintiff holding that the plaintiff has been inpossession and enjoyment of the suit property and that thedefendants and their men have no right to interfere with theplaintiff's peaceful possession and occupation of the said property.13. Therefore, the present second appeal has been preferred bythe defendants in the suit stating that the lower appellate Courthad erred in ignoring the mandatory provisions of Order 9 Rule 9(1)of The Civil Procedure Code, 1908, even if could be taken that theprincipal of res judicata would not apply to the present case. 14. It was also stated that it was wrong on the part of thelower appellate Court to have held that the kist receipts inExhibits A.1 to A.15 would be sufficient to prove the plaintiff's https://hcservices.ecourts.gov.in/hcservices/ possession. Since the plaintiff had relied on the same patta infiling the earlier suit in O.S.No.225 of 1993, the present suit inO.S.No.217 of 1998, is not maintainable in law. 15. It was also stated that the lower appellate Court hadwrongly cast the burden of proof on the defendants in a claim forbare injunction by the plaintiff. When the question of title to thesuit property had been raised by the defendants, the plaintiff oughtto have filed a suit for declaration of title and not a suit forbare injunction as in the present case. 16. The present second appeal had been admitted on thefollowing substantial questions of law:"Whether the dismissal of an earlier suitbetween the parties on the same cause of actionfor default will not bar a fresh suit on thesame cause of action?"17. At the stage of the hearing of the second appeal, thelearned counsels appearing on behalf of the appellants as well asthe respondent had submitted that since the lower appellate Courthad not considered the issue as to whether the suit in O.S.No.217of 1998 was maintainable, in view of Order 9 Rule 9(1) of The CivilProcedure Code, 1908, it would only be appropriate for the lowerappellate Court to adjudicate upon the same and therefore, it wouldbe proper for this Court to remit the matter back to the lowerappellate Court for considering and adjudicating upon the saidissue. 18. In such circumstances, the judgment and decree of the SubCourt, Tiruvarur, dated 20.6.2003, in A.S.No.3 of 2001, is set asideand the matter is remitted back to the lower appellate Court toconsider and decide the issue relating to Order 9 Rule 9 (1) of TheCivil Procedure Code, 1908, taking into consideration the facts andcircumstances of the case, on merits and in accordance with law andcome to a conclusion, after giving sufficient opportunity to theparties concerned, within a period of three months from the date ofreceipt of a copy of this Judgment. However, it is made clear thatduring the pendency of the matter before the lower appellate Court,the appellants as well as the respondent would maintain the positionof status quo as on the date of the passing of this Judgment.Further, it is open to the parties concerned to move the lowerappellate Court for any interim relief, as found necessary, duringthe pendency of the matter and on such relief being claimed thelower appellate Court is to pass appropriate orders thereon, onmerits and in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ The second appeal is ordered accordingly as stated above. Nocosts. Consequently, connected C.M.P.No.21379 of 2003 is closed. LanSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge, at Tiruvarur2. The District Munsif, Thiruthuraipoondi3. The Record Keeper, VR Section, High Court, Madras.+ 1 cc to Mr. Srinath Srideven, Advocate SR No.51305+ 1 cc to Mr. S. Sathiamurthi, Advocate SR No. 51138JRG(CO)SR/19.9.2007S.A.No.2268 of 2003