OSA.No.377 of 2007
1. M. Somasundaram
2. S. Selvakumar .. Appellants Vs.
1. The District Collector-cum-
Accommodation Controller, Singaravelar Maligai, Rajaji Salai, Chennai 600 001.
2. V. Srinivasan S/o. Vellaya Naidu
3. M/s. Rajalakshmi Properties, 44, Basin Bridge Road, Chennai 600 079.
4. Mrs. Kokila Charles Ebenezer, W/o. Late Charles Ebenezer
5. Mrs. Sujatha Chandrasekar W/o. Chandrasekar
6. Abraham Sudhakar S/o. Late Charles Ebenezer
7. Mrs. Vijayalatha W/o. Daniel Gupta
8. R. Vincent Balasingh S/o. Late Vincent Balasingh
9. Samraj Prabhakar S/o. Late Vincent Balasingh
10. Mrs.V. Jayanthi W/o. Daniel Vedayanagam
11. Rev. Fr. C.S. Sundaresan S/o. Chella Jesudas Chetty
12. Mrs.E. Laura Dhanaraj W/o. Dhanaraj
13. Mrs. Lenina Bharahi Moses, W/o. J.C. Moses
14. Dr. Freeda Christiana Shanthini, W/o.E.S.D. Thambiraj .. Respondents O.S.A.NOs.378 of 2007
1. M. Somasundaram
2. S. Selvakumar .. Appellants Vs.
The District Collector-cum-
Accommodation Controller, Singaravelar Maligai, Rajaji Salai, Chennai 600 001. .. Respondent Original Side Appeals filed under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the common order dated 14.11.2007 made in Appln.No.6129 of 2007 in C.S.No.420 of 2007, C.S.No.420 of 2007 and O.A.No.606 of 2007 in C.S.No.420 of 2007 respectively.
For Appellants : Mr.G. Ethirajalu for Mr.C. Prakasam For Respondent-1 in : Mrs. Bhavani Subburayan OSA.Nos.377, 378/07 & Special Govt. Pleader (C.S.) R-2 in OSA.376.07 For Respondent-1 in : Mr.T.R. Rajagopalan OSA.No.376/07 & R-2 Senior Counsel for in OSA.No.377/2007 Mr.M. Stalin
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COMMON JUDGMENT P.K. MISRA, J The present appellants have filed C.S.No.420 of 2007 in the Original Side of the Madras High Court claiming the following reliefs :-
"(a) For a declaration declaring that the three Sale Deeds dated 10.03.1996 registered as Document No.2001/96, 2009/96 & 2007/96 at the office of The Sub Registrar, Purasawalkam, Chennai, executed in favour of the 3rd Defendant by Defendants 4 to 14 are sham, nominal and therefore null and void and not binding on the 2nd Plaintiff.
(b) For a consequential Declaration declaring that the three Sale Deeds dated 30.10.2000 registered as Document Nos.3661 of 2000, 3665 of 2000 and 3667 of 2000 at the office of The Sub Registrar, Purasawalkam, Chennai, executed in favour of the 2nd Defendant is sham, nominal and therefore null and void and not binding on the 2nd Plaintiff.
(c) For a Declaration declaring that the 2nd Plaintiff is the absolute owner of the suit 'A' Schedule property by virtue of Will dated 01-07-1978 executed by Daisy Devasagayam.
(d) To Grant Permanent Injunction restraining the 1st Defendant, his men, agents, staff, subordinates and officials or any person claiming through or engaged on behalf of the 1st Defendant from and in any way interfering with the Plaintiffs peaceful possession and enjoyment of premises bearing Door No.80, Millers Road, Kilpauk, Chennai 600 010 either by way of dispossessing, eviction or in any other manner pending disposal of the above suit."
2. During pendency of such suit, they filed O.A.No.606 of 2007 against Defendant No.1, namely, the District Collector-cum-Accommodation Controller, for injunction restraining such defendant from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the schedule property either by way of dispossessing, eviction or in any other manner pending disposal of the suit. The second defendant filed Application No.6129 of 2007 for rejection of the plaint in C.S.No.420 of 2007.
2. By a common order dated 14.11.2007, the learned single Judge has rejected the plaint in C.S.No.420 of 2007 thereby allowing Application No.6129 of 2007 and consequently rejecting O.A.No.606 of 2007 with costs of Rs.10,000/- to be paid to the Tamil Nadu State Legal Services Authority.
3. O.S.A.No.376 of 2007 is directed against the order allowing Application No.6129 of 2007, O.S.A.No.377 of 2007 is directed against the order relating to rejection of the suit and O.S.A.No.378 of 2007 is directed against the order whereby the application filed by the plaintiffs for injunction has been rejected on account of rejection of the plaint itself. All the three appeals, which are thus against one common order, have been heard together and shall be governed by this common judgment.
4. Learned single Judge has rejected the plaint by invoking Order VII Rule 11 apparently on the ground that the present suit C.S.No.420 of 2007 is barred under Order II Rule 2, Order XXIII and Rule 1 C.P.C., and the filing of the suit is an abuse of process of the Court inasmuch as it amounts to re-litigation.
5. For appreciating the questions raised in the present appeals, it is necessary to notice in brief the factual background as apparent from the plaint or as admitted by the parties in course of hearing before the learned single Judge or before us.
For convenience, the parties are described as they are described in C.S.No.420 of 2007.
6. There is no dispute that one J.G. Devasahayam was the admitted owner of the properties now in dispute. He had one brother Rajamani and one sister Soundaram Sundaresan. The aforesaid Devasahayam expired on 28.1.1962 leaving behind her widow Amy Devasahayam and two unmarried daughters Daisy and Padmini. Amy Devasahayam died on 22.1.1978. Daisy expired on 11.11.1979 and Padmini expired on 118.1995.
6.1 Rajamani's branch is represented by Defendant Nos.4 to 10 and Soundaram Sundarersan's branch, who died on 10.11.1986, is represented by Defendant Nos.11 to 14. Defendant No.3 has purchased the properties in dispute by registered sale deeds dated 10.3.1996 from Defendant Nos.4 to 14.
6.2. Plaintiff No.2 is the son of Plaintiff No.1. They are not related to J.G. Devasahayam.
6.3 The property at Door Nos.79 and 80, Millers Road, Kilpauk, was handed over to the Accommodation Controller, the first defendant. Subsequently, the first plaintiff, who was working as a steno-typist under the Tamil Nadu Transport Department, was inducted by the Accommodation Controller as a tenant in respect of Door No.80 ('A' schedule property) with condition regarding payment of rent directly to Daisy. It is claimed by the plaintiffs that Daisy, who was staying in the same house, had executed a Will on 1.7.1978 in favour of the second plaintiff in respect of A to D schedule properties, 'A' schedule is 50% of undivided share over land and building in premises bearing Door No.80, Millers Road, Kilpauk, 'B' schedule is 50% of undivided share over land and building in premises bearing Door No.79, Millers Road, Kilpauk and 'C' schedule is 50% of undivided share over land and building in premises bearing Door No.34, Balfour Road, Kilpauk and 'D' scheule is 50% of undivided share over land and building in premises bearing Door No.9, Vinayagar Koil Street, Purasawalkam. Daisy expired on 11.11.1979. Defendant No.8 had filed O.P.No.59/1981 to declare Padmini as a lunatic and to appoint him as her guardian. The High Court by order dated 22.6.1983 declared Padmini as lunatic. Subsequently, Padmini expired on 11.8.1985. The first defendant subsequently sent a letter dated 12.8.1993 to the first plaintiff to vacate 'A' schedule property on the ground that the first plaintiff had retired from Government service, even though the first plaintiff had informed the 1st defendant regarding existence of the Will executed by Daisy. The first defendant again sent a letter dated 24.3.1995 threatening to evict the plaintiffs without considering the request of the second plaintiff to release such property in favour of him. At that stage, the plaintiffs filed O.S.No.2902 of 1995 against the first defendant for injunction, but the suit was withdrawn. The plaintiffs had filed appeal against the order of the first defendant before the Secretary to the Government and, at the time of filing of the present suit, such appeal was stated to be pending and stay had been granted. One R. Gnanadhikkam had filed O.P.No.41 of 1991 claiming that a Will, dated 8.8.1986 had been executed in his favour by Mrs. Soundaram Sundaresan in respect of the assets previously belonging to Daisy Devasahayam. Thereafter the children of Soundaram Sundaresan had filed Application Nos.2902 and 2903 of 1987 to set aside the order made in O.P.No.59 of 1981 regarding lunancy proceedings, but in such application there has been no whisper about the Will dated 8.8.1986 by Soundaram Sundaresan. By order dated 3.10.1988, the High Court had passed an order in Application No.1127/87, 2902 and 2903 of 1987 directing all the persons claiming under J.G. Deivasahayam to file appropriate suit and establish their rights over the properties of Padmini Devasahayam, which they claimed to have succeeded after the death of Daisy. Defendant Nos.11 to 14 subsequently filed W.P.No.15660 of 1989 for issuing a Writ of Mandamus to implement G.O.Ms.No.1338 dated 10.5.1988, whereunder the Government had directed that the rent for 'C' schedule property should be paid to them. Though initially by order dated 22.12.1989 such writ petition was allowed, subsequently, 11th defendant, the father of Defendants 5 to 7, had filed an application for recalling such order and ultimately the High Court recalled the earlier order and dismissed the writ petition filed by Defendant Nos.11 to 14 on the ground that they had suppressed the material facts and directed that criminal proceedings should be initiated. Even though initially the High Court granted probate in respect of O.P.No.41 of 1991, subsequently, the second plaintiff had filed Appln.No.704 of 1991 to revoke the probate and Appln.No.748 of 1991 for restraining Gnanathikkam from putting up any construction. In the said application it was claimed by the second plaintiff that Daisy had executed a Will dated 1.7.1978. Subsequently, the second plaintiff had filed O.P. for grant of probate on 26.8.1991, but the same was numbered as O.P.No.210/1995. The second plaintiff also issued notice to the Accommodation Controller not to handover possession of the disputed property to anyone. Defendant Nos.4 to 7 jointly executed a sale deed on 10.6.1996 in favour of Defendant No.3 in respect of 1/4th share in the property in Door No.80, Millers Road. On the very same, Defendant Nos.8, 9 and 10 jointly executed another sale deed in favour of the very same Defendant No.3 in respect of 1/4th share in the very same property and Defendant Nos.11 to 14 had executed a sale deed in favour of Defendant No.3 in respect of 1/2 share in the very same property. The first defendant once again sent a notice dated 22.2.2000 directing the first plaintiff to vacate and deliver possession of 'A' schedule property. At that stage, the plaintiffs filed O.S.No.2411 of 2000 against the first defendant for permanent injunction. While such suit was pending, the second defendant filed a petition for being impleaded on the ground that he had purchased 'A' and 'B' schedule property from 3rd defendant, who in turn had purchased the properties from Defendant Nos.4 to 14. The second defendant produced the sale deeds only on 13.1.2005 before the trial court in O.S.No.2411 of 2000, which was marked as Exs.B-1 to B-3 and claimed title. From the documents filed by Defendant No.2 in course of cross-examination, the plaintiffs came to know that suppressing the orders of the High Court in W.P.No.15660 of 1989 and O.A.Nos.704 of 1991 and 741 of 1991, Defendant Nos.4 to 14 had colluded together and created sale deeds in favour of Defendant No.3 and such sale deeds in favour of Defendant No.3 are sham and nominal. The defendants had also suppressed the pendency of probate petition numbered as O.P.No.210 of 1995. Validity of such sale deeds dated 10.6.1996 had been impugned by raising several contentions. Three sale deeds in favour of Defendant No.2 were also assailed on similar grounds. Plaintiff No.2 claims title by virtue of the Will. It is claimed that because of the subsequent sale deeds and the stand of the defendants, the plaintiffs have filed the comprehensive suit for title in respect of 'A' schedule property with liberty to file appropriate suit against 'B' 'C' and 'D' schedule properties and it has been stated that they undertake to withdraw O.S.No.2411 of 2000 pending before the City Civil Court as the only prayer in the said suit was for permanent injunction.
7. Defendant No.2 in his application numbered as Application No.6129 of 2007 for rejection of the plaint has stated that widow and the two unmarried daughters of J.G. Devasahayam having died intestate, the property was inherited by the heirs of the brother and sister of D.G. Devasahayam and they by separate sale deeds dated 10.6.1996 had sold the property to Defendant No.3 and subsequently Defendant No.3 had sold the property to Defendant No.2 by registered sale deeds 30.10.2000. Since J.G. Devasahayam was residing outside, the property had been entrusted to the Accommodation Controller, who had allotted a portion of the premises of Door No.80 to the first plaintiff as tenant. Since the first plaintiff had retired from service with effect from 31.12.1990, the Accommodation Controller had issued a letter dated 21.9.1993 to vacate the premises. Such Accommodation Controller initiated eviction proceedings under Section 3(a) of the Tamil Nadu Buildings (Lease and Rent) Control Act. The plaintiffs filed O.S.No.2902 of 1995 against the Accommodation Controller for bare injunction and, at that stage, for the first time, the plaintiffs came up with a story of alleged Will in their favour. When the suit was ripe for trial during the year 2000, the plaintiffs withdrew the same, which was accordingly dismissed on 7.7.2000. Thereafter, the Accommodation Controller again initiated eviction proceedings, but, the plaintiffs, on the basis of similar allegations as had been made in O.S.No.2902 of 1995, filed a fresh suit numbered as O.S.No.2411 of 2000 again for bare injunction and obtained an interim order of injunction. In the meantime, Defendant No.2, who had purchased the property from Defendant No.3, had filed an application dated 31.7.2001 before the Accommodation Controller for release of the said property from the Government Tenancy under Section 3A(i)(a) of the Rent Control Act. The Accommodation Controller vide proceedings, dated 21.9.1993, ordered release of the subject property and directed the plaintiffs to vacate and handover possession, but the plaintiffs continued to remain in illegal possession. At that stage, Defendant No.2 got himself impleaded in O.S.No.2411 of 2000 and the plaintiffs thereafter were merely dragging on the suit and subsequently filed W.P.No.20769 of 2004 and obtained stay in respect of the very same subject matter but, subsequently, such writ petition was withdrawn. Even during pendency of such suit, the second plaintiff filed RCOP.No.414 of 2002 for eviction against his father, the first plaintiff. Even after hearing of the suit was completed and the matter was reserved for judgment, the plaintiffs filed application after application with a view to drag on the proceedings but, ultimately on 8.6.2007, they withdrew O.S.No.2411 of 2000 as by then they had already filed the present suit C.S.No.420 of 2007 and had obtained an ex-parte injunction. The present suit has been filed only with a view to drag on the proceedings to continue the illegal occupation. Defendant No.2 has claimed that the prayer No. (a) and (b) relating to earlier sale deeds as null and void was barred by the law of limitation. So far as prayer No.(c) is concerned, it was asserted in the application :-
"12. As regards prayer (c) of the suit to declare the 2nd Plaintiff as the absolute Owner of the suit property by virtue of alleged Will date 1-7-1978, I humbly submit that the same is also not maintainable. The Plaintiffs have filed O.P.No.210 of 1995, before this Hon'ble Court seeking probate of the alleged Will. The Plaintiffs have stated in their evidence before the City Civil Court in O.S.NO.2411 of 2000 that unless they get probate of the alleged Will they will not get right over the property. That has been their stand all these years. The alleged probate proceedings are also kept pending by the Plaintiffs for more than 12 years. Hence the relief sought for in prayer C is against law."
So far as the prayer relating to (d) injunction is concerned, it is contended that the plaintiffs had filed two earlier suits for the same relief and they are playing fraud by using the process of the Courts to suit their illegal ends. In respect of probate proceedings, it has been further indicated that though the alleged Will was in respect of three other properties, namely, Door No.79 at Millers Road, Door No.34 at Balfour Road and Door No.9 at Vinayagar Koil Street, the suit for declaration has been filed only in respect of the suit property at Door No.80, Millers Road, which was indicative of the fact that the Will was not at all genuine and the only intention of the plaintiffs was to delay the matter as they were in possession.
8. A counter was filed by the second plaintiff by stating that the petition under Order VII Rule 11 was not maintainable. It was stated in the counter that the sale deeds in favour of Defendant No.2 and his vendor Defendant No.3 were all collusive and nominal transactions. It was further stated that the earlier suits were based on different cause of action. It was further stated that probate proceedings in O.P.No.210 of 1995 had been filed for probating the Will, but, subsequently by amendment to the Indian Succession Act in 2002, the Will executed by an Indian Christian need not be probated and, therefore, the plaintiffs became the owner of the property. The plaintiffs filed the present suit when the sale deeds were disclosed and produced in the court.
9. Learned Counsel appearing for the appellants has submitted that for rejecting the plaint under Order VII Rule 11 CPC., the Court is required to come to a conclusion only on the basis of the allegations made in the plaint that the suit is barred by any law. In this context it has been submitted that the earlier two suits had in fact been withdrawn and had not been decided on merit and, therefore, the bar under Order II Rule 2 was not applicable. Moreover, two earlier suits were only the suits for bare injunction and the present suit is one for declaration that the sale deeds in favour of Defendant No.3 and Defendant No.2 are null and void and also for declaration of the title of the plaintiffs and, therefore, it cannot be said that the present suit is based on some cause of action. For the aforesaid reasons, the learned counsel for the appellant has also submitted that the bar under Order XXIII Rule 1(3) would not be applicable inasmuch as the present suit is a compendious suit for title and for declaration that the sale deeds in favour of Defendant Nos. 2 and 3 are null and void and also for injunction.
10.Order II Rule 2, Order VII Rule 11 and Order XXIII Rule 1(3) & (4) being relevant, are extracted hereunder :-
Order II Rule 2:
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
Order VII Rule 11:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaintiff to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
Order XXIII Rule 1(3) & (4) "(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff -
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
11. Apart from thebar Order II Rule 2 and Order 23 Rule 1, the learned single Judge has also applied the doctrine of abuse of process of court and the doctrine of re-litigation. It is necessary at this stage to notice the latter principles.
12. In (1998) 3 SCC 573 (K.K. MODI v. K.N. MODI AND OTHERS), the appellant before the Supreme Court had filed a petition under
Section 33 of the Arbitration Act, 1940, challenging the decision of the Chairman and Managing Director of IFCI on the footing that it was an award in the arbitration proceedings between the two groups. On the very same day, they had also filed a civil suit challenging the very same decision of the Chairman and Managing Director of IFCI on the basis of substantially the same allegations as had been made in the arbitration petition. In one paragraph, however, it had been stated that the same reliefs were being claimed in a suit in the event of it being held that the decision of the Chairman and Managing Director of IFCI was not an arbitration award but was just a decision. Learned single of the Delhi High Court held that filing of the suit was an abuse of process of the court as the allegations in the arbitration petition and the suit were identical and had been instituted on the same day and accordingly the single Judge struck down the plaint by invoking jurisdiction under Order 6 Rule 16 of the Code of Civil Procedure. The Division Bench, while admitting the appeal, passed an order reviving the order passed by the learned single Judge wherein the single Judge had directed that no meeting should be held. From different orders, Special Leave Petitions were filed. The Supreme Court posed the following questions :-
"15. The present proceedings raise two main questions:
Question 1: Whether clause 9 of the Memorandum of Understanding dated 24-1-1989 constitutes an arbitration agreement; and whether the decision of the Chairman, IFCI dated 8-12-1995 constitutes an award? and Question 2: Whether Suit No. 1394 of 1996 is an abuse of the process of court? "
12.1 While dealing with Question No.1, the Supreme Court had agreed with the conclusion of the learned single Judge that the proceedings before the Chairman, IFCI, were not arbitration proceedings and, therefore, his decision was not an award Therefore, such SLP was rejected. While dealing with Question No.2, the Supreme Court observed as follows :-
"41. He has submitted that in the event of it being held that clause 9 of the Memorandum of Understanding is not an arbitration clause and the decision of the Chairman, IFCI, is not an award, it is open to the appellants to file a suit to challenge the decision. This is the reason why along with the arbitration petition, a suit has also been filed as an alternative method of challenging the decision in the event of it being held that the decision of the Chairman and Managing Director, IFCI, is not an award. He has contended that filing a separate proceeding in this context cannot be considered as an abuse of the process of the court; and the learned Single Judge was not right in striking out the plaint under Order 6 Rule 16 of the Code of Civil Procedure.
42. Under Order 6 Rule 16, the court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn., Vol. II, p.1179, note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase abuse of the process of the court thus:
This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the courts discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard1 the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court.
46. In Mcllkenny v. Chief Constable of West Midlands Police Force1 the court of appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiffs earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel.
47. In the present case, the learned Judge was of the view that the appellants had resorted to two parallel proceedings, one under the Arbitration Act and the other by way of a suit. When the order of interim injunction obtained by the appellants was vacated in arbitration proceedings, they obtained an injunction in the suit. The learned Single Judge also felt that the issues in the two proceedings were identical, and the suit was substantially to set aside the award. He, therefore, held that the proceeding by way of a suit was an abuse of the process of the court since it amounted to litigating the same issue in a different forum through different proceedings.
48. This perception of the learned Judge may be substantially correct though not entirely so. Undoubtedly, if the plaint in the suit is viewed as challenging only the arbitration award, a suit to challenge the award would be relitigating the issues already raised in the arbitration petition. The suit would also be barred under
Section 32 of the Arbitration Act, 1940.
Section 32 of the Arbitration Act, 1940 provides that notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act."
12.2 Ultimately, the Supreme Court allowed the appeal in part by observing :-
"53. The appeal of the appellants from the judgment of the learned Judge striking out the plaint is, therefore, partly allowed and the suit, to the extent that it challenges independently the decision of the Chairman and Managing Director, IFCI as a decision and not as an award, is maintainable in the sense that it is not an abuse of the process of the court. We make it clear that we are not examining the merits of the claim nor whether the plaint in the suit discloses a cause of action in this regard. The plaint leaves much to be desired and it is for the trial court to decide these and allied questions. The plaint insofar as it challenges the decision as an award and on the same grounds as an award; or seeks to prevent the enforcement of that award by the Chairman, Modipon Ltd. or in any other way has been rightly considered as an abuse of the process of the court since the same reliefs have already been asked for in the arbitration petition. Transfer Case No. 13 of 1997 is, therefore, partly allowed."
13. From the aforesaid observations of the Supreme Court including the observation made in several decisions, which were noticed in the aforesaid decision, the concept of rejecting a plaint by invoking jurisdiction under Section 151 CPC., on the ground that a litigation virtually amounts to "relitigation" and thus an abuse of process of court has gained ground.
14. At this stage, it may be convenient to notice some relevant decisions relating to applicability of Order 7 Rule 11 of the Code of Civil Procedure.
15. In (2006) 1 Supreme 677 : (2006) 3 SCC 100 (MAYAR (H.K.) LTD. & OTHERS v. OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPRESS & OTHERS), while dealing with the scope of Order VII Rule 11, it was observed :-
"10. Under Order 7 Rule 11 of the Code, the court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam v. T.V. Satyapal this Court has held that if on a meaningful, not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the court should exercise its power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sathi v. Nachhattar Singh Gill this Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court therein could not act under Order 7 Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order 6 Rule 16 to strike out the paragraphs in the absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. v. Debts Recovery Appellate Tribunal it was held that the basic question to be decided while dealing with an application filed by the defendant under Order 7 Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision. In Saleem Bhai v. State of Maharashtra5 this Court has held that the trial court can exercise its powers under Order 7 Rule 11 of the Code at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose the averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property v. State Bank of India Staff Assn. this Court has culled out the legal ambit of Rule 11 of Order 7 of the Code in these words: (SCC p.516, para 19) 19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."
16. In (2006) 5 SCC 658 (BALASARIA CONSTRUCTION (P) LTD. v. HANUMAN SEVA TRUST AND OTHERS), while dealing with the question relating to dismissal of a suit on the ground of limitation, it was observed :-
"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."
17. 2007(5) MLJ 187 (SC) : (2007) 5 SCC 614 [HARDESH ORES PVT. LTD. AND ANOTHER v. HEDE AND COMPANY), it was observed :-
"12. Aggrieved by the order of the trial court the appellants preferred two appeals before the High Court which have been dismissed by the impugned order. Before the High Court it was urged that in deciding an application under Order 7 Rule 11 CPC the contentions raised in defence or submissions advanced by the respondent-defendant about their case need not be considered and the matter must be decided on the basis of averments in the plaint and the documents annexed with the plaint. The trial court had fallen into an error when it referred to the defence of the defendant to determine as to whether the plaint was liable to be rejected as barred by limitation. It also noticed the submission urged on behalf of the appellant that the question of limitation was a mixed question of law and fact and, therefore, such a question could be adjudicated only in the trial."
18. In the present case, though Defendant No.2 had raised a contention that the suit, particularly the relief relating to declaration of the sale deeds in favour of Defendant No.3 and Defendant No.2 were illegal and void was barred by limitation, the learned single Judge has not specifically rejected the suit on the ground of limitation, apparently on the footing that some factual aspect was required to be considered. At any rate, the learned counsel for Defendant No.2 / respondent has also stated that the present suit has not been dismissed on the ground of limitation and only on the bar under Order II Rule 2 and Order 23 Rule 1(4) of CPC and the doctrine of relitigation had been invoked. Therefore, the dismissal of the suit on the question of limitation does not strictly arise at the present. The decisions noticed above make it clear that the applicability of Order VII Rule 11 has to be decided on the basis of the averments made in the plaint itself and not on the basis of the plea of the defendants. However, while considering whether a suit is to be dismissed on the ground that it is an abuse of process of court or hit by the doctrine of "relitigation", obviously the court is not confined to the averments made in the plaint, but the court is required to look into undisputed surrounding circumstances to come to a conclusion whether filing of the suit is an abuse of process of court and hit by the doctrine of relitigation.
19. With the above prefatory factual and legal backdrop, the contentions are required to be considered. Learned counsel for the appellants has raised the following contentions :-
(1) The bar under Order II Rule 2 CPC., was not available to be raised on the following grounds :-
(a) Two earlier suits were only for injunction, whereas the present suit is for declaration that the sale deeds in favour of Defendant Nos.3 and 2 are void and for declaration of title of Plaintiff No.2, which causes of action were not available to Plaintiff No.2 in the year 1995 or 2005 as the Plaintiff No.2 was yet to obtain probate in respect of the Will in his favour.
(b) The bar under Order II Rule 2 would be applicable in a subsequent suit only when the suit has been decided on merit and, in the present case, since the earlier suits had not been decided on merit and had been withdrawn, there was no occasion for the learned single Judge to invoke the principle of Order II Rule 2 CPC.
(c) The bar under Order II Rule 2 is not applicable since the cause of action in the second suit filed in the year 2000 was different from the cause of action for the first suit and the cause of action for filing the present suit is different from the cause of action in the first suit in the year 1995 and the second suit filed during the year 2000.
(2) So far as the bar under Order 23 CPC is concerned, learned counsel for the appellants has raised a similar contention by stating that two earlier suits were for bare injunction, whereas the present suit is a comprehensive suit for declaration of title of Plaintiff No.2 and for declaration that the sale deeds in favour of Defendant Nos.3 and 2 are void.
(3) So far as the bar on the ground of re-litigation and abuse of process of court is concerned, it is contended by him that such a bar can be invoked only when the earlier suit had been decided on merit and, since the present suit is on the basis of separate cause of action, he could not have filed such a suit earlier for declaration of title inasmuch as he was yet to obtain probate in respect of the Will and, therefore, he could not claim any title keeping in view the provisions contained in
Section 213 of the Indian Succession Act and only by virtue of the amendment to
Section 213 by insertion of provision relating to non-applicability of
Section 57 of the Indian Succession Act to Indian Christian, a person can only be entitled to sue for title based on the Will without obtaining probate.
20. Learned single Judge, while considering the question of applicability of bar under Order II Rule 2 CPC., has summarised the position of law by observing as follows :-
"(a) The previous and second suit must arise out of the same cause of action.
(b) Both the suits must be between the same parties; and
(c) The earlier suit must have been decided on merits."
21. However, in course of discussion, the learned single Judge has observed that the earlier suit was not decided on merits only because the plaintiffs have withdrawn the suit and the plaintiffs having omitted to include for declaration of second plaintiff's title in the earlier suit, the subsequent suit is barred by Order II Rule 2 CPC.
22. Though there are some decisions of different High Courts, which indicate that to attract the bar under Order II Rule 2 CPC., the earlier suit should have been decided on merits, which position was apparently accepted by the learned single Judge as apparent from the conclusion in para 32 (c), in the present case, the earlier suits were not decided on merits, but were withdrawn. Therefore, a doubt may arise as to whether the bar under Order II Rule 2 CPC could be invoked. That however, may not improve the position for the present appellants in view of the fact that even assuming that the bar under Order II Rule 2 may not apply on account of the fact that the earlier suits had not been decided on merits but had been withdrawn, the appellants are to overcome the bar created under Order 23 of CPC., inasmuch as the earlier suits were withdrawn without applying for leave to file a fresh suit.
23. To overcome the bar under Order 23, the learned counsel for the appellants has raised a contention that the present suit is on the basis of a different cause of action as compared to the two earlier suits. This aspect requires careful consideration.
24. The first suit, namely O.S.No.2902 of 1995 was for injunction seeking to restrain the first defendant, the Accommodation Controller, as he had issued notice to the first plaintiff, the father of Plaintiff No.2. A reference has been made therein to the effect that a Will has been executed in favour of Plaintiff No.2 and Plaintiff No.2 had applied for probate of such Will. In the present suit, there is a prayer for declaration that the sale deeds executed by Defendant Nos.4 to 14 in favour of Defendant No.3 are void and the subsequent sale deeds executed by Defendant No.3 in favour of Defendant No.2 are equally void. It is no doubt true that such sale deeds having been executed in the year 1996 and 2006, the prayer (a) and (b) in the suit were not available to be made in the year 1995. However, the question is whether the prayer for declaration of title of Plaintiff No.2 was available to be made at that stage. Similarly, by the time when the subsequent suit was filed in the year 2000, though the sale deeds in favour of Defendant No.2 were yet to be executed, the sale deeds were already executed by Defendant Nos.4 to 14 in favour of Defendant No.3 in the year 1996. The contention of the appellants is that the factum of such execution of the sale deeds by Defendant Nos.4 to 14 was not within the knowledge of the plaintiffs as such execution came to their knowledge only during the trial of the suit and, therefore, they could not have sought for a declaration that the sale deeds in favour of Defendant No.3 were void. But, again the question crops up whether at that stage the plaintiffs could have sought for declaration of the title.
25. In the above context, the learned counsel for the appellants has placed reliance upon
Section 213 of the Indian Succession Act. The relevant provision of
Section 213, which is applicable to the present case, before amendment and after amendment are to the following effect :-
Before amendment :-
"213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans, and shall only apply-
. . . (omitted as not necessary) "
After amendment :-
"213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply-
. . . (omitted as not necessary) "
26. It is claimed by him that by virtue of
Section 213(1) of the Indian Succession Act, no right to the property could have been claimed by praying for declaration of title until a probate is obtained and since a probate proceeding was already pending, the plaintiffs could not have sued for declaration of title. In this connection, it is further contended that, even though the probate proceeding is still pending, only in view of the amendment to
Section 213, the cause of action seeking declaration of title is now available to Plaintiff No.2 as probate is no longer required after amendment.
27. The aforesaid submission of the learned counsel for the appellants is apparently on the basis of misconception. The question is whether Plaintiff No.2, who is seeking declaration of title in the present suit filed in the year 2007, could have also sued for declaration of title in the year 1995 or 2000 or not? It is not that the plaintiffs were not aware that the Defendant Nos.4 to 14 were claiming their title to the property. Narration of facts and events, as per the present plaint, clearly indicates that some of the defendants were laying their separate claim to the property. It may be that there was some internecine dispute among them, but the fact remains that they either conjointly or separately, were laying their claim. If at all there was a cause of action for declaration of title now, there is similar cause of action available in the year 1995. The contention that since probate proceedings had been initiated and till probate was granted no title can be established, is not a complete answer inasmuch as there was no bar for filing the suit for declaration, though without obtaining the probate no such title could have been established.
28. There are several decisions of various High Courts, which indicate that there may not be any necessity to wait for obtaining a probate for filing the suit and the probate can be obtained any time before the suit itself is decided on merits. The proper course is to file the suit for declaration and, if required, pray for stay of such proceedings in view of pendency of probate proceedings. As per
Section 211 of the Indian Succession Act, title to the property vests on the Executor of the Will as soon as the Executant expires. This is because of the well known concept in jurisprudence that succession to a particular property never lies in vacuum be it on the basis of any Will or otherwise. The property passes on to the successor either on the basis of the Will or in the absence of any Will on the basis of law relating to succession.
Section 213 only creates an embargo relating to establishing such title in a court of law.
29. That such a suit is required to be filed as and when the cause of action arises can be viewed from another angle by taking an illustration.
Supposing a person, who claims title by virtue of being successor on the basis of a Will, is forcibly dispossessed by a person who sets up independent title by adverse possession, would it be open to the person claiming through the Will to contend that he need not sue for possession on the basis of the title because he is yet to obtain probate. In this context it has to be borne in mind that there is no specific period of limitation for applying for probate, whereas a suit for possession on the basis of title has to be filed within the prescribed period of limitation. Therefore, in our opinion, Plaintiff No.2 could have also prayed for declaration of title in the year 1995 or in the year 2000.
30. Apart from the above, in our considered opinion, the prayers relating to declaration that the sale deeds executed in favour of Defendant No.3 and thereafter in favour of Defendant No.2 are null and void and even the prayer for declaration of Plaintiff No.2's own title are all unnecessary prayers which were not required for the purpose of determining the main issue. There is no dispute by any body that the property belonged to one J.G. Devasahayam and after his death it was inherited by his widow and two daughters. In other words, there is no dispute that Daisy Devasahayam was the owner of a part of the property which is now claimed under the Will by the plaintiffs. Even the defendants claim their title through Daisy Devasahayam. In such a sense, when there is no dispute regarding title of the last-holder and the only dispute is relating to mode of succession, namely, whether it should be on the basis of the Will or otherwise, it cannot be said that any cloud on the title to the property has arisen now and not earlier. Since Defendants 4 to 14 either separately or jointly were claiming their title on the basis of intestate succession and the present Plaintiff No.2 was claiming title on the basis of testamentary succession, it cannot be said that the cause of action for suing for declaration has arisen only after filing of two previous suits. In our considered opinion, the very same cause of action was equally available before filing of the suit in 2000 as well as in 1995.
31. Learned counsel for the appellants has also claimed that at the time when the first suit was filed in the year 1995, no sale deeds had been executed by the defendants 4 to 14 in favour of Defendant No.3 and even though subsequently such defendants 4 to 14 executed sale deeds in favour of Defendant No.3 in the year 1996, such factor was not within the knowledge of the plaintiffs when the subsequent suit was filed in the year 2000 and only when the plaintiffs became aware of such sale deeds in course of hearing of the suit of 2000, they sought to amend the plaint by including the prayer for declaration of title and declaration that the sale deeds are invalid, but unfortunately such prayer for amendment was rejected and, therefore, they have now filed a compendious suit including all the relevant prayers and more particularly after amendment of the Indian Succession Act.
32. In the subsequent suit of 2000, Defendant No.2, who was the ultimate purchaser, had got himself impleaded. The suit was one for injunction. The present plaintiffs are not eo nomine party to the sale deeds executed by Defendant Nos.4 to 14 in favour of Defendant No.3, who in turn executed sale deeds in favour of Defendant No.2. The plaintiffs are obviously not claiming title through Defendant Nos.4 to 14. In such view of the matter, there is no necessity for them to pray for declaration that the sale deeds are void inasmuch as being not party to the documents, they can simply ignore the sale deeds and pursue their claim either on the basis of possession alone or even on the basis of title and possession. Therefore, the reliefs now included appear to be mere camouflage to get over the hurdle of Order 23 Rule 1. In this context, it has to be kept in view that the plaintiffs withdrew the suit after they filed a fresh suit and obtain a fresh order of injunction against the very same Accommodation Controller and, even though they had included other defendants including the last purchaser, they had not prayed for injunction as against Defendant No.2.
33. The question can now be examined from the point of view of relitigation. If the Will in favour of Plaintiff No.2 was legal and binding, on that basis, Plaintiff No.2, if he is in possession, can sue for permanent injunction against the entire world. If he is not in possession, he had a right to sue for recovery of possession. He had already filed a suit for injunction. Even at that stage of filing of the first suit in the year 1995, he was aware that Defendant Nos.4 to 14 were claiming right over the property and as a matter of fact he had impleaded all those persons in the probate proceedings initiated by him. Therefore, if he had deliberately omitted to include those defendants in the suit filed in the year 1995 as well as in the suit filed in the year 2000, he was required to pursue his remedy as available in law against all the persons who are required to be sued. The very fact that he has allowed the first suit to be withdrawn when the matter became ripe for hearing without taking to its logical end and similarly the second suit was withdrawn even after conclusion of the trial and when the matter was pending for judgment, are very relevant factors to consider whether his subsequent suit filed in the year 2007 is an abuse of process of court. In the very first suit he has obtained an injunction against the Accommodation Controller and withdrew the same on some pretext. Thereafter, after few days he again filed a similar suit for injunction against the very same Accommodation Controller. In such suit, Defendant No.2, who had already purchased the property from the rival claimants and thereby claiming absolute right for himself, has got himself impleaded. While hearing in such suit was concluded and the matter was reserved for judgment, he filed the present suit, obtained an injunction again against the Accommodation Controller only without seeking for injunction against the last purchaser, namely, Defendant No.2 or any other defendant and only after obtaining an ex-parte injunction, he got the earlier suit of 2000 dismissed as withdrawn. In these circumstances, the conclusion of the learned single Judge that the plaintiffs were trying to abuse the process of court appears to be fully justified keeping in view the further fact that in between, while all such controversies are pending, Plaintiff No.2 filed a proceeding under the Rent Control Act against his father, who is a co-plaintiff in all the suits seeking for eviction. In these circumstances, even assuming that, technically speaking, the bar under Order II Rule 2 was not applicable and similarly bar under Order XXIII Rule 1 CPC., was not applicable, at least the doctrine of relitigation was applicable.
34. Under these circumstances, we find that the order passed by the learned single Judge by rejecting the plaint appears to be justified. The appeals are accordingly dismissed. No costs.
dpk To
1. The Sub-Asst. Registrar, Original Side, High Court, Madras