C.R.P. (PD) Nos.2809 of 2010 is preferred challenging the order dated 27.03.2010 made in I.A.No.181 of 2008 in O.S.No.534/2005 on the file of the 2nd Additional District Munsif, Erode, transposing the 1st respondent herein (R.Manickam) as 2nd plaintiff in the suit upon the death of the original plaintiff.
2.C.R.P. (PD) No.2812 of 2011 is preferred challenging the order dated 23.03.2011 in I.A.No.125 of 2011 in O.S.No.760 of 2007 on the file of the 1st Additional District Munsif, Erode allowing the application to implead one Palaniswamy as 4th defendant in the suit.
3.C.R.P.(PD) Nos.4225 to 4227 of 2013 are preferred under Article 227 of the Constitution of India praying to strike off the respective plaints in O.S.No.534 of 2005 on the file of the 2nd Additional District Munsif, Erode), O.S.No.760 of 2007 on the file of the 1st Additional District Munsif, Erode) and O.S.No.28 of 2013 on the file of the Principal District Judge, Erode).
4.The following are the brief facts germane for the disposal of all the Civil Revision Petitions:
O.S.No.534 of 2005 was preferred by one Sadayammal seeking a decree for partition of the suit properties in to two and to allot and put her in separate possession of one share. Subsequently Manickam, the first respondent herein (1st defendant in that suit) was transposed as second plaintiff upon the death of the sole plaintiff Sadayammal.
5.O.S.No.760 of 2007 was preferred by Manickam, 1st Respondent herein seeking a decree of permanent injunction restraining the defendants therein from putting up any construction in the suit property till finality is attained in O.S.No.534 of 2005 etc. The defendants therein are petitioners 1 to 3 herein and according to the Plaintiff they are utter strangers having no right, title and interest in the suit property.
6.O.S.No. 28 of 2013 was preferred by Manickam, 1st Respondent herein seeking a declaratory decree declaring (i) that the sale deed dated 09-11.1994 executed by him in favour of defendants 5 to 10 in that suit as null and void, as it was obtained by fraud committed by Defendants 19 to 21 in that suit; (ii) the sale deed dated 16-12-2000 executed by defendants 5 to 10 in that suit to one Nachimuthu whose LRs are arrayed as defendant 26 to 29 in that suit, as null and void since defendant 5 to 10 therein do not get valid title based on the sale deed dated 09.11.1994; (iii) that the sale deed dated 21-11-2007 executed by defendants 12 & 13 to 23 in that suit through the 22nd defendant in that suit is not binding on the 1st Respondent herein as they have no title to the properties conveyed under the said sale deed and further (iv) seeking a partition decree in respect of the suit properties in to three shares and to allot and put him in separate possession of one share as alleged by Defendant No.19 therein; (v) seeking permanent injunction restraining first defendant therein from putting up any constructions in R.S.No.88/2 of Kumilanparappu Village; (vi) seeking mandatory injunction against the first defendant therein to remove constructions made in R.S.No.88/2 of Kumilanparappu village; and (vii) seeking permanent injunction restraining 34th defendant therein from effecting any service connection to the buildings constructed in R.S.No.88/2 of Kumillanparappu village.
7. The following dry lands comprised in R.S.No.81/7 of an extent of 1.59 acres; 0.22 Acres in R.S.No.81/11, 0.21 Acres in R.S.No.81/14, (corresponding Old S.F.Nos.60/C, D, E, F, I, J & K & 61/A, B & C) in all totally measuring 2.02 acres situate at Kumilamparappu Village, Erode Taluk were joint family properties of S.Ramasamy Nadar. The said S.Ramasamy Nadar died on 24.06.1981 leaving behind his wife (Sadayammal), sons (i) R.Rangasamy, (ii) R.Ponnusamy @ Palaniappan @ Palanichamy and (iii) R.Manickam and a daughter Muthayammal as his legal heirs. It is stated that R.Kuppusamy eldest son of S.Ramasamy Nadar predeceased his father as bachelor.
8. It is stated that R.Ponnusamy @ Palaniappan @ Palanichamy died in 1983 leaving behind the petitioners 1 to 3 herein as his legal heirs and that they preferred O.S.No.91/87 for partition and separate possession of the above said lands and some other lands into 3 equal shares and to allot and put them in possession one such share out of the entire suit properties therein. The said suit in O.S.No.91/87 was decreed Exparte on 18.02.1988. The first respondent herein, R.Manickam and his mother Sadayammal filed I.A.No.459 of 1990 praying to condone the delay of two years and one month in filing a petition to set aside the exparte decree passed on 18.02.1988 in O.S.No.91/1987. The said petition having been dismissed on 29.07.1994, they filed C.R.P.No.2447 before this court and it was also dismissed on 12.07.1995, giving finality to the preliminary decree passed in O.S.No.91/1987. Later the Sub Court Erode passed a final decree as per order dated 24.01.1996 in I.A.No.590/1989 in O.S.No.91/87 giving a natural quietus and end to the partition suit.
9. It is seen that Sadayammal, wife of late S.Ramasamy Nadar and the first respondent herein (Manickam) sold their share in the lands comprised in R.S.No.81/7 of an extent of 1.59 acres; 0.22 Acres in R.S.No.81/11, 0.21 Acres in R.S.No.81/14, in Kumilamparappu Village, Erode Taluk under sale deed dated 09.11.1994 (Document No.2478/1994) relying on the partition decree in O.S.No.91/87.
10. However Sadayammal, who is a party to the Partition suit in O.S.No.91/1987 and who executed the sale deed dated 09.11.1994 (Document No.2478/1994) jointly along with the 1st respondent herein filed O.S.No.144/1996 on the file of Sub Court, Erode seeking partition and separate possession relating to the lands including the above said lands. The said suit in O.S.No.144/1996 was transferred to the 2nd Additional District Munsif Court Erode and was assigned O.S.No.534/2005 (subject matter of C.R.P.No.4225 of 2013).
Sadayammal died during the pendency of the proceedings and the 1st respondent herein got himself transposed 2nd plaintiff to continue the suit. It is to be noted that the 1st respondent herein is also an executant of the sale deed dated 09.11.1994 (Document No.2478/1994). The order dated 27.03.2010 in I.A.No.180/2008 in O.S.No.534/2005 transposing the 1st respondent herein as 2nd plaintiff in O.S.No.534/2005 is challenged in C.R.P. No.2809/2010.
11. Maragadham and Rajavel, wife and son of Muthayammal, daughter of Ramasamy Nadar and Sadayammal filed O.S.No.116/1996 before Sub Court Erode, seeking partition. The said suit was dismissed for default on 20.08.2002.
12. Sadayammal, wife of S.Ramasamy Nadar filed another injunction suit in O.S.No.439/1999 before the District Munsif Court Erode, against some strangers (K.Karuppannan & 9 others) alleging that she having been bequeathed all the properties owned by her husband S.Ramasamy Nadar under a registered Will dated 20.08.1968 has become the owner of all the properties of her husband upon his death on 24.06.1981; that her suit for partition in O.S.No.144/1996 (since transferred and renumbered as O.S.No.534/2005 – 2nd Additional DMC, Erode) is pending and that K.Karuppannan and 9 others who are strangers are attempting to take possession of all the properties that were bequeathed by her late husband under the Will dated 20.08.1968. Upon the death of plaintiff Sadayammal one Ayyavoo claiming under unregistered Will dated 20.01.1999 executed by Sadayammal in his favour, was impleaded as testamentary care of the plaintiff under order dated 21.06.2002 in I.A.No.391/2000 in O.S.No.483/1999. However above suit was not prosecuted and was dismissed for default on 06.02.2007.
13. Lakshmi, the 1st petitioner in all these C.R.Ps along with her two daughters sold their shares to G.Baskaran and M.Sakthivel under Sale Deeds date 21.11.2007 (Document Nos.4535 & 4536/2007) respectively pursuant to the final decree passed on 24.01.1996 in I.A.No.590/1989 in O.S.No.91/1987.
14. The above facts are not in dispute. It is in this back ground R.Manickam the 1st respondent in all these C.R.Ps filed O.S.No.28/2013 before the Principal District Court, Erode as stated above.
15. The petitioners herein have approached this Court under Article 227 of the Constitution of India to strike off the respective plaints as stated above.
16. Mr.V.P.Sengottuvel, learned counsel for the petitioners in all the C.R.Ps argued that Thiru.R.Manickam, the 1st respondent herein wilfully and deliberately suppressed several material facts and made false statements in the plaints in O.S.No.534 and 760 of 2007. He has not disclosed about the sale deed dated 09.01.1994 (Document 2478 of 1994) wherein he is a joint Vendor along with his mother Late.Sadayammal, selling undivided 1/3rd share of the properties declared as their entitlement in the preliminary decree dated 18.02.1988 in O.S.No.91 of 1987 long prior to passing of the final decree, which was passed on 24.01.1996 only. He further contented that while filing C.R.P. No.2447 of 1994 before this court challenging the order dated 29.07.1994 in I.A.No.459 of 1990 seeking to condone the delay of 2 years and one month in filing an application to set aside the exparte decree dated 18.02.1988 in O.S.No.91 of 1997, which C.R.P. was dismissed on 12.07.1995. It is the case of the petitioners that R.Manickam, the 1st respondent herein is litigating again and again even after he had transferred his rights and title in the properties to 3rd parties and thereby abused the process of court and he approached the court with unclean hands and as such he is not entitled to file and/or prosecute the 3 suits mentioned above since he has no subsisting right in the suit properties.
17. In support of his contentions as stated supra he relied upon the following reported judgements (1) 1994(1) S.C.C. page 1; (2) 2010(8) S.C.C. page 383; (3) 2002(1) C.T.C. page 183 (SC); (4) 1997(3) C.T.C. page 567; (5) 1998(1) C.T.C. page 66 and (6) 2002(1) C.T.C. page 277.
18. Per contra learned counsel for the contesting respondent (R.Manickam) submitted that the decree in O.S.No.91 of 1987 was obtained by the fraud as stated in the plaint in O.S.No.28 of 2013;
that no steps were taken to effect to divide the properties by meats and bounds as per the final decree and as of now filing of any execution petition is barred due to lapse of time and therefore the final decree is non est. He further contended that he still have rights over some part of the suit properties assuming that the sale deed dated 09.11.1994 is valid. According to him he was prompted to file O.S.No.28 of 2013 because his mother Late.Sadayammal suppressed her alienation along with him in her earlier suit and that filing a suit for partition cannot be found fault with since it is a continuing cause of action.
19. In support of his arguments, learned counsel for the contesting respondent submitted the following reported judgements:
1) 2007 (9) S.C.C. page 641
2) 2006 (3) S.C.C. page 100
3) 2004 (9) S.C.C. page 512
4) 2008 (12) S.C.C. page 661
5) 2015 (8) S.C.C. page 331
6) 1999 (3) S.C.C. page 267
7) 2007 (15) S.C.C. page 52
20. I have gone through the voluminous records submitted for the perusal of this court and considered the rival submissions in the light of the factual matrix and the views taken by the Hon’ble judges in the reported judgements cited by either parties.
21. In my considered opinion it is too late in the day to accept the contention of Thiru.R.Manickam, the 1st respondent herein that the decree in O.S.No.91 of 1987 was obtained by fraud. He along with his mother (Sadayammal) long before the final decree was passed and relying on the preliminary decree dated 18.02.1988 sold their share of the property to 3rd parties. A reading of the order dated 12.07.1995, passed by this court in C.R.P. No.2447 of 1994 shows that both Sadayammal and R.Manickam have not been fair to the court in that they have not disclosed above their alienation made on 09.11.1994. Having acted upon the preliminary decree passed in O.S.No.91/1987 the 1st respondent herein is estopped from contending that the said decree is obtained by fraud. It is pertinent to note that neither Sadayammal nor R.Manickam preferred any appeal as against the preliminary decree or the final decree passed in the said suit. In any event it is to be noted that both the preliminary and final decree in the partition suit have attained finality.
22. I am unable to countenance the argument made that the 1st respondent still has subsisting rights over the properties which he had disposed of under sale deed dated 09.11.1994 along with his mother. Therefore I am of the view that the continuation of the 3 civil suits mentioned above and initiated either by contesting 1st respondent or by his mother are against the principle of finality of litigation and the contentions of the contesting 1st respondent in this regard are factually untenable and legally unsustainable.
23. It is further to be noted that though the alienation was made by the contesting 1st respondent along with his mother as early as 09.11.1994 he chose to prefer O.S.No.28 of 2013 only on 17.01.2013 nearly after 19 years contending that the alienation in favour of defendants 5 to 10 therein is sham and nominal and is actuated by fraud committed by defendants 19 to 21 therein and therefore the subsequent sale deeds are also liable for cancellation. I am convinced, both on facts and in law that the said suit is hopelessly time barred and is abuse of the process of court. Though the plaintiff being the dominant litigant makes allegations in his plaints to suit his convenience the court cannot be a silent spectator. In the present case it is clear that the contesting 1st respondent is re-litigating without any just cause after the suit in O.S.No.91 of 1987 attained finality, by making allegations far from truth.
that:
that:
24.(i)The Hon’ble Supreme Court in 1994 (1) SCC 1 has held “One who comes to court must come with clean hands. A person who’s case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage, on the other side, then he would be guilty of playing fraud on the court as well as opposite party” (Para 5 & 6)
ii) The Hon’ble Supreme Court in 2010 (8) SCC 383 has held “...fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine, including Res Judicata. Fraud is proved when it is shown that a false representation has been made (i) Knowingly, or (ii) Without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court.”
iii) The Hon’ble Supreme Court in the case of Roshan Deen v.
Preeti Lal reported in 2002 (1) CTC 183 while dealing with the powers conferred on the High Court under Article 226 & 227 of the Constitution of India has held that:
“...Time and again this court has reminded that power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it. (vide State of Uttar Pradesh V. District Judge, Unno and ors, AIR 1984 SC 1401) The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law”. Para 12
iv) This Court in the case of Renuka Devi v. D.Manoharan reported in 1997 (III) CTC 567 while dealing with the powers conferred on the High Court under Article 227 of the Constitution of India has held that :
“...The person coming to the Court with false case, with the aid of false and fraudulent document, is not entitled to any equity, nor he is entitled to get any order in his favour. The law is settled that such cases should be thrown out even at the threshold. The court also has a duty to see that as far as possible, litigation is avoided and multiplicity of proceedings are avoided, and when the court has such a power to grant relief, it should not close its eyes on technicalities.“
v) Again this Court in a case of Ranipet Municipality Rep. By Its Comer. and Special Officer, Ranipet v. M.Shamsheerkhan reported in 1998 (1) C.T.C. 66 while dealing with the powers conferred on the High Court under Article 227 of the Constitution of India has held that : the power under Article 227 can be exercised when a proceeding is an abuse of process of court.
vi) This Court in the case of S.Viswanathan v. M/s.Sri Muruga Agencies, represented by its Partner, R.V.Ramasamy and two others reported in 2002 (1) CTC 277 while dealing with the powers conferred on the High Court under Article 227 of the Constitution of India has held that :
“if the parties are allowed to play hide and seek and hoodwink the process of law, the people will lose in the courts” and in such circumstances such suit would make mockery of justice and the same can be stuck off.
25. The judgements cited by the Respondent in my considered view are distinguishable and are not applicable to the facts of the present case:
The judgment reported in the case of Des Raj and Others v. Bhagat Ram (Dead) by LRs. and others in (2007) 9 S.C.C. 641 relates to the case on adverse possession wherein earlier suits filed in the year 1968 allowed to be dismissed in the year 1977 and another suit filed in the year 1978 was dismissed in 1984 and the last suit was filed in the year 1986 and the court has held that a co-owner can bring about successive suits for partition as the cause of action thereof would be a continuous one.
26. But, in this case the suits were filed long after sale of the suit properties and particularly suits in O.S.No.534/2005 and 760/2007 are filed by suppressing material facts.
27. The judgment reported in the case of Mayar (H.K.) Ltd. and others v. Owners & Partners, Vessel M.V. Fortune Express and others) in (2006) 3 S.C.C. 100 relates to rejection of Plaint under Order 7 Rule 11 of CPC. In the said judgment the Hon’ble Supreme Court as held as follows:
As held in S.J.S. Business Enterprises case, 2004 (7) S.C.C. 166, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view of the court may have taken”.
28. Therefore, in the said judgment the Court has held that the claim can be rejected when it has suppression of material facts. This support, the case of the petitioners that the suits mentioned herein are liable to be struck off as the Plaintiff has deliberately suppressed material facts and the same is an abuse of process of Court.
29. The Judgment reported in the case of Liverpool & London S.P. & I Association Ltd. v. M.V.Sea Success I and Another in (2004) 9 S.C.C. 512 also relates to rejection of Plaint under Order 7 Rule 11 and many other points. Paragraph 139, 146 and 149 relates to rejection of Plaint and disclosure of cause of action, etc., and same cannot be applied to the present case.
30. Similarly, the decision in the case of Kamala and others v. K.T.Eshwarasa and others reported in (2008) 12 S.C.C. 661 also relates to rejection of Plaint and the facts mentioned therein are different and the same is not applicable.
31. The judgment reported in the case of P.V.Guru Raj Reddy Represented by GPA Laxmi Narayan Reddy and another v. P.Neeradha Reddy and others in (2015) 8 S.C.C. 331 is also rejection of Plaint and not applicable in the above petitions. In that judgment the Hon’ble Supreme Court has held that averments in the Plaint have to read as a whole to find out whether it discloses the cause of action or whether the suit is barred under any law.
32. The judgment reported in the case of D.Ramachandran v. R.V.Janakiraman and others in (1999) 3 S.C.C. 267 also relates to rejection of Plaint under Order 7 Rule 11 and the Court has held that C.P.C. enjoins the Court to reject Plaint where it does not disclose any cause of action. The plea of the petitioners in the above Revision Petition are that the Court is empowered to struck off the suit, as the Plaintiff has approached the Court with unclean hands and there are suppression of material facts.
33. The judgment reported in the case of Jageshwari Devi and others v. Shatrughan Ram in (2007) 15 S.C.C. 52 also relates to order 7 Rule 11 wherein the Hon’ble Supreme Court as held that non- disclosure of cause of action and defective cause of action. As such the principle laid down therein cannot be followed in this case.
34. In 2000 (3) C.T.C. page 74, this court has observed that “process of court must be used bonafide and properly and must not be misused or abused. The court has to see that it is not used as a means of oppression and the process of litigation is free from vexatiousness. The categories of contact rendering a claim frivolous, vexatious or abuse of process would depend upon the relevant circumstances. But it has to be judged from the angle of interest of justice and public policy”.
35. In my opinion the above lines can be aptly referred to while countenancing the case of the revision petitioners. As already observed by me the contesting respondent has not approached the Courts with clean hands and did not disclosing the material facts. Hence I am of the considered view that C.R.P. (PD) Nos.4225 to 4227of 2013 are liable to be allowed and the respective plaints in each of the suits are liable to be struck off. This Court had got inherent Jurisdiction and Power of Superintendents to render justice and to see that the opposite parties are not vexatiously made to suffer by defending repeated re-litigations over the issues that had been settled long back.
36. In the result:
(a) CRP(PD)No.4225, 4226 and 4227 of 2013 are allowed;
(b) the suits in O.S.No.534 of 2005, O.S.No.760 of 2007 and O.S.No.28 of 2013 respectively, are strike off from the file of the Additional District Munsif, Erode, District Munsif Court, Erode and Principal District Judge, Erode respectively;
(c) the CRP(PD)No.2809 of 2010 and CRP(PD)No.2812 of 2011 are challenged the interim orders passed in the suits, since the suits are struck off from the file of the respective Courts, both the civil revision petitions are unnecessary and the same is closed. No costs.
03.03.2017
Index:Yes Internet:Yes vs To
1. The Principal District Judge, Erode.
2. The Additional District Munsif, Erode.
3. The II Additional District Munsif, Erode.
M.V.MURALIDARAN, J.
vs
Pre-Delivery order made in C.R.P.(PD) Nos.2809 of 2010 and
C.R.P.(PD)NO.2812 of 2011 and C.R.P.(PD) Nos.4225 to 4227 of 2013
03.03.2017
http://www.judis.nic.in