(Judgment was delivered by PRABHA SRIDEVAN, J) The appellant filed an application for rejection of plaint. This was dismissed . Therefore, this appeal has been filed.
2. The facts in brief are as follows:-
(i) The first respondent is an association of nine owners of the nine apartments in plot No.48, Rukmani Road, Kalakshetra Colony, Besant Nagar, Chennai 600 090. The property belongs to the second respondent. The members of the first respondent-Association purchased the undivided share from the second appellant, who is the power of attorney of the second respondent. According to them, the basement was to have been kept free and was only meant for erection of generator. After the construction, when the possession was handed over to the members of the first respondent-Association, the appellant requested that he be permitted to use the basement for storing fome materials. They allowed him to do so. Slowly they found that he had usurped the entire basement. In February, 2005, they sent a letter to him, asking him to clear the basement. He gave evasive answer.
(ii) Therefore, O.S. No.2884 of 2007 was filed before the City Civil Court, Chennai by five persons, who were apartment owners. The suit was dismissed on 18.4.2009. According to the respondents/plaintiffs, it was dismissed on technical grounds of not filing the suit for recovery of possession; for non joinder of necessary parties and the suit was not filed by the registered Association. It is only when the written statement was filed on 3.10.2007 in the above suit, the respondents came to know that the appellants claimed that there was a sale deed dated 31.3.2003. It is the contention of the respondents that the sale deed is illegal. So, the suit has been filed for a declaration that the sale deed No.1511/2003 dated 31.3.2003, morefully described in the Schedule "A" executed by the second defendant through the third defendant in favour of the 1st defendant on 31.3.2003 as null and void; mandatory injunction directing the 1st defendant to demolish and close the 735 sq.ft. of unauthorized construction put up by the 1st defendant in the basement, morefully described in Schedule "B" and for recovery of possession, directing the 1st defendant to hand over possession of the approved basement measuring 415 sq.ft., morefully described in the Schedule "C" and for costs.
(iii) The earlier suit was filed by five occupants, who claimed that they had permitted the appellants to use the basement portion on compassionate ground for storing the construction material. In fact, at the minutes of meeting held on 19.2.2005, they had recorded that the storage of items in the basement by the appellants as against the commitments given by one Mr. Venkat and that no action was taken. They had also written a letter on 28.2.2005 asking the appellants to clear the junk materials. When they found that there was some unusual activity in the second week of March, 2007, they addressed a letter dated 12.3.2007 calling upon the appellants to inform them what was happening. They met on 18.3.2007.
(iv) When the appellants informed them that the portion of basement was let out for commercial purpose, they objected to this and reiterated their concerns. The appellant sent a letter on 29.3.2007 stating that the members of the first respondent-Association should meet the tenant, who was interested in setting up an Aerobic Training Center in the basement and additional basement charge would be paid. Thereupon they filed the suit for removal of articles and to hand over the 1160 sq.ft. premises and for handing over the original parent document.
(v) In the written statement filed in the said suit, the appellant came out with the case that 333 sq.ft. of undivided area has been conveyed to him under a deed of sale dated 31.3.2003 registered as document No.1511/2003 and therefore, he was entitled to a proportionate share, corresponding to the built up area, in the entire property.
(vi) In the earlier suit, six issues were framed, which dealt with non-joinder of necessary party; whether the plaintiffs are entitled to the relief: whether the Court fee paid was proper and whether the plaintiffs were entitled to the return of parent documents. On all issues, the City Civil Court held against the plaintiffs therein who are the members of the first respondent-Association. But, relevantly, it is recorded in he judgment, in the evidence of P.W.1 he had stated that he did not know whether the undivided share has been purchased under a sale deed and that it is stated so in the written statement but that he did not enquire him about it.
(vii) Learned Single Judge, after hearing the submissions of both the parties, referred to the judgments relied on by them and held that the grounds of estoppel, res judicata, Order II Rule 2 C.P.C. will have to be framed as specific issues and only after proper pleadings and evidence, the findings can be given and dismissed the application for rejection of plaint
3. Learned counsel appearing for the appellants submitted that when the appellants had brought to the notice that there was a sale deed in 2003, then it was the duty of the members of the first respondent who filed the earlier suit to find out the details regarding the purchase and in fact, in the earlier suit, all these issues had been gone into. The relief of recovery of possession was asked for only on the basis of title and merely by adding the prayer for declaration that the sale deed is null and void, the basic nature of the suit cannot be changed. . Learned counsel also submitted that the earlier suit would operate as res judicata.
4. Learned counsel also submitted that in A.I.R. 1928 MADRAS 445 (SONACHALAM PILLAI v. KUMARAVELU CHETTIAR), this Court had held that the question whether the suit was filed in a representative capacity should be decided with regard to the substance and not to the form of pleadings. So, according to the learned counsel, this would apply to the present case. In the earlier suit, it was specifically averred that the the plaintiffs and the other co-owners would use the schedule property for the benefit and enjoyment of all the owners.
5. Learned counsel submitted that in the decision in A.I.R. 1954 SC 82 (SUNDERABAI v. DEVAJI SHANKAR DESHPANDE), it is held as follows:-
" 11. The real ratio governing such class of cases is to be found in a decision of the Full Bench of the Lahore High Court in Mt. Sardaran V. Shiv Lal where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as res judicata though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was identical. It is therefore clear that the Plaintiff in the case before us was litigating under the same title i.e. in the same right as the adopted son of Shankar though that claim of his was sought to be based on a later adoption than the one in the former suit.
12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No.291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the Civil Procedure Code would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the Civil Procedure Code at p.84 of the 11th Edn. under the caption Consent decree and estoppel"
"The present section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum."
6. Learned counsel also referred to (2009) 10 S.C.C. 273 (RAMACHANDRA DAGDU SONAVANE v. VITHU HIRA MAHAR), wherein it was held as follows:-
" In a suit for injunction, the issues and the decision would be confined to possessory aspect. If the right to possession of property cannot be decided without deciding the title to the property and a person who approaches the court, his status itself is to be adjudicated then without declaring his status, the relief could not be granted.
A plea decided even in a suit for injunction touching the title between the same parties would operate as res judicata. It is no doubt true that if in an earlier suit for injunction, if there is an incidental finding on title, the same would not be binding if title is directly in question in the later suit or proceedings. But if in such earlier suit, a decision as to question of title was necessary for granting or refusing injunction and the relief for injunction was found or based on the bindings of title between the same parties, bar of res judicata would operate in such later suit where the issue of title is directly in question."
7. We have considered the rival submissions. It is well settled that in an application for rejection of plaint, the pleadings in the plaint have to be looked into. That alone will decide whether the plaint has to be rejected. The learned Single Judge had correctly applied 2004(9) SCC 512 (LIVERPOOL & LONDON S.P. & I ASSOCIATION LTD. v. M.V. SEA SUCCESS I). In the plaint in the earlier suit, the pleadings referred to the notice given in the year 2005 and the meeting between the parties in 2007. The earlier plaint does not disclose that in the reply to the notice in 2005, the appellants had referred to the sale deed.
8. It is also not the case of the appellants that on the date when the earlier suit was filed, the fact that there was a sale deed was made known to the respondents. In fact, to the notice dated 19.2.2005, the reply is only with regard to some tenant and even at the meeting the only statement made by the appellants was that the tenant was going to set up an Aerobic center. It is only in the written statement in the earlier suit for the first time, there is a reference to the sale deed. Therefore, this is not a relief that the respondents could have asked for on the date of filing of the earlier suit. As far as the issue of res-judicata is concerned, the earlier suit was purely for removal of materials and recovering the basement in the sense, clearing the basement comprising of 1160 sq.ft., It is only in the present suit that the comprehensive relief is asked for declaration that the sale deed is null and void and consequently, for recovery of possession. In the decision in (2009) 1 MLJ 1001 (ANATHULA SUDHAKAR v. P. BUCHI REDDY), the Supreme Court had laid down the principles for deciding the position in regard to the suit for injunction relating to immovable property and when the issue of title would be directly and substantially in issue. It held as follows:-
"15. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari AIR 1965 Mad. 355, the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred. On the other hand, in Sulochana Amma v. Narayanan Nair AIR 1994 SC 152: (1994) 2 SCC 14, this Court observed that a finding as to tile given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premise that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed:
"Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata."
This was reiterated in Annaimuthu Thevar v. Alagammal AIR 2005 SC 4004: (2004) 6 SCC 202: (2005) 4 MLJ 1.
16. This Court in Sajjadanashin Sayed Md. v. Musa Dadabhai Ummer AIR 2000 SC 1238 (2000) 3 SCC 350 : (2000) 2 MLJ 172, noticed the apparent conflict in the view expressed in Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari (supra) and Sulochana Amma v. Narayanan Nair (supra) and clarified that the two decisions did not express different view, but dealt with two different situations, as explained in CORPUS JURIS SECUNDUM (Vol.50, para 735, p.229):
"Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title."
In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari (supra), the finding on possession did not rest on a finding on title and there was no issue regarding title. The case related to an agricultural land and raising of crops and it was obviously possible to establish by evidence who was actually using and cultivating the land and it was not necessary to examine the title to find out who had deemed possession. If a finding on title was not necessary for deciding the question of possession and grant of injunction, or where there was no issue regarding title, any decision on title given incidentally and collaterally will not, operate as res judicata. On the other hand, the observation in Sulochana Amma v. Narayanan Nair (supra) that the fining on an issue relating to title in an earlier suit for injunction may operate as res judicata, was with reference to a situation where the question of title was directly and substantially in issue in a suit for injunction, that is, where a finding as to title was necessary for grant of an injunction and a specific issue in regard to title had been raised. It is needless to point out that a second suit would be barred, only when the facts relating to title are pleaded, when a issue is raised in regard to title, and parties lead evidence on the issue of title, and the Court, instead of relegating the parties to an action for declaration of title, decides upon the issue of title and that decision attains finality. This happens only in rare cases. Be that as it may. We are concerned in this case, not with a question relating to res judicata, but a question whether a finding regarding title could be recorded in a suit for injunction simpliciter, in the absence of pleadings and issue relating to title."
Taking into account the facts on hand and the decided cases, we do not find that plaint to can be rejected. The words "omits to sue" in Order II Rule 2 of the Civil Procedure Code must be decided with reference to what the plaintiff was aware at the time of institution of suit. Only then the plaintiff can be said to have omitted to sue. Here the existence of the sale deed is a defence taken only in the written statement. So Order II Rule 2 of the Civil Procedure Code will not apply.
9. A reading of the judgment in the earlier suit shows that no issue was raised with regard to title. There was no pre-suit denial of title by the appellant so the respondent did not have to plead the necessary facts relating to title. This is what we gather from the plaint. So the sale deed did not form the foundation for the previous suit. So applying 1996 1 SCC 735, Order II Rule 2 of the Civil Procedure Code will not apply. The mere averment that "the plaintiff and other co-owners would use the schedule property for the benefit and enjoyment of all the owners" would not make it a representative suit. Further, the mere comprehensive relief is asked only in the later suit. The learned Single Judge rightly held that Explanation VI to Section 11 of the Civil Procedure Code will not apply especially since a wider relief is claimed in the present suit.
10. We do not think that the judgment of the learned Single Judge requires any interference. It is needless to say that none of the observations will affect the right of the parties at the time of trial. The original side appeal is dismissed. Consequently, the connected M.P. is also dismissed. No costs.
(P.S.D.J) (M.S.N.J) 23.12.2009 Index:- Yes/No.
Internet:- Yes.
ssa.
To:
The Sub Assistant Registrar (Original Side).
High Court, Madras.
PRABHA SRIDEVAN, J. & M. SATHYANARAYANAN, J ssa.
O.S.A. No.423 of 2009 and connected M.P.
23.12.2009