This review application has been filed against the order dated 10.02.2009 passed in CRP (PD) No.3541 of 2008 on the file of this Court.
2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this review application would run thus:
Earlier this Court passed order dated 10.02.2009 in CRP (PD) No.3541 of 2008. The said order was passed after hearing both sides. However, this revision application has been focussed on the following main grounds:
(i) This Court in para 6 of the said order referred to supra observed as though the said Singaram, the Father of Shanthi, the plaintiff in the trial Court, was alive when the Award was passed by the authority under the Tamil Nadu Co-operative Societies Act and on that basis the Civil Revision Petition was disposed of. This Court also observed that had the Award was passed after the death of Singaram, then the matter would have been different. Since infact it is found that Singaram actually died even before the passing of the Award, this Court might review the order earlier passed by this Court.
(ii) The award passed after the death of Singaram is a nullity.
3. The learned counsel for the plaintiff placing reliance on the aforesaid grounds would develop his argument to the effect that the bar contained in Section 156 of the Tamil Nadu Co-Operative Societies Act ousting civil Court jurisdiction, would not be attracted, because the Award passed was a nullity. Any order passed against a dead person is a nullity.
4. Whereas, by way of torpedoing and pulverising the arguments as put forth on the side of the review applicant, the learned counsel for the auction purchaser would develop his argument to the effect that even though Singaram died even before the passing of the Award by the authority concerned under the Tamil Nadu Co-operative Societies Act, the property concerned jointly belonged to three persons, viz., Singaram, Kumaresan and Gopalan and along with them Singaram's sons, viz., Rajendran, Manivannan and Chandran were also parties in the Award proceedings. The authorities under the Co-operative Societies Act proceeded as against those persons by way of recovering the debt availed by them for the purpose of improving their business by name Sri Murugan Timber Mart; the said Kumaresan, Gopalan and Singaram's sons were alive but did not contest the matter; the suit property is not a joint family property, but admittedly, it belonged jointly to the deceased Singaram and the said Kumaresan and Gopalan.
5. Accordingly, he submits that when the other two owners, viz., Kumaresan and Gopalan were alive at the time of the Award being passed, the question of labelling or describing the said Award as nullity does not arise. Even though Rajendran, Manivannan and Chandran happened to be the sons of Singaram and they were very much available on record before the passing of the Award, they along with those two owners have not voluntarily chosen to contest the matter. As such, all the persons interested in the matter remained exparte and in such a case, the plaintiff cannot raise her accusative finger as against the proceedings.
6. The learned counsel for the plaintiff would cite the decision of the Hon'ble Apex Court reported in CDJ 2009 SC 354 (T.Gnanavel vs. T.S.Kanagaraj and another) and develop his argument to the effect that according to the said judgment, the Award passed against a dead person is a nullity. I would like to extract hereunder the relevant portion of the said precedent:
"8. We have heard the learned counsel appearing on behalf of the parties and perused the materials on record. The issue, which is to be decided in this appeal, whether the decree passed by the civil court in ignorance of the death of the defendant, without granting any exemption to the appellant before the judgment was pronounced, as required under Order XXII Rule 4 (4) of the CPC, is sustainable in law.
9. Order XXII Rule 1 of the CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a civil suit. Order XXII Rule 2 relates to procedure where one of several plaintiffs or defendants dies and right to sue survives. Order XXII Rule 3 of the CPC deals with procedure in case of death of one of several plaintiffs or of sole plaintiff. Order XXII Rule 4 of the CPC,however, deals with procedure in case of death of one of several defendants or of sole defendant. For understanding the issue raised before us in this appeal, it would be convenient at this stage to reproduce Order XXII Rule 4 of the CPC, which runs as under:-
"(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place".
13. In view of our discussions made hereinabove and after going through the provisions under Order XXII Rule 4(4) of the CPC, as discussed herein earlier, and in view of the principles laid down by the aforesaid decision, it is therefore, clear that if exemption, which is provided under Order XXII Rule 4(4) of the CPC is obtained from the Court before the delivery of the judgment, in that case, it would be open to the court to exempt the plaintiff from bringing on record the heirs and legal representatives of the defendant even if, the defendant had died during the pendency of the suit as if the judgment was pronounced by treating that the defendant was alive notwithstanding the death of such defendant and shall have the same force and effect as if it was pronounced before the death had taken place. That being the position, we are, therefore, of the view that since in this case, admittedly, exemption was obtained after the judgment was pronounced, the provision of Order XXII Rule 4 (4) of CPC would not be attracted.
In our view, the aforesaid decision in the case of Zahirul Islam (Supra) can also be distinguished on facts. As noted herein earlier, in that decision, the plaintiff did not seek permission of the Court under Order XXII Rule 4(4) of the CPC and in that view of the matter, this court held that the legal representatives of the deceased defendant was entitled to be brought on record in the suit. Admittedly, in our case, after the judgment was pronounced, the permission was sought to exempt the plaintiff from the necessity of substituting the heirs and legal representatives of the defendant and not before it. That being the position, we do not find any ground to rely on this judgment of this Court as sought by Mr.Ranjit Kumar, learned Senior counsel appearing for the appellant. This view has also been expressed by Madras High Court in a decision reported in Elisa and others vs. A.Doss (AIR 1992 Mad.159), in which the Madras High Court in paragraph 3 had observed as follows:-
"It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub rule 3. Sub Rule (4) provides an exception to Sub-rule (3). Under Sub-Rule (4), it is open to the court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub rule (4) is clear enough to show that the court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the court "may exempt the plaintiff" and "judgment may, in such case pronounced". That part of the sub rule says that the order of exemption should precede the judgment to be pronounced in the suit ..........."
14. For the reasons aforesaid, we are of the opinion that the High Court had rightly interpreted the provision of Order XXII Rule 4 (4) of the CPC and accordingly held that the decree passed by the trial court on 20th December,2002, in O.S.No.3946 of 1999 was a nullity in the eye of law as the defendant had died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the plaintiff/appellant to bring on record the heirs and legal representatives of the defendant before the judgment was pronounced."
The facts involved in that case were that there was a sole defendant and despite his death, the plaintiff had not chosen to implead properly the persons concerned for the carriage of the case. But here, it is quite obvious that the facts are different. The immovable property concerned belonged to three persons, viz., Singaram, Kumaresan and Gopalan and it was not a joint family property. The said Singaram, Kumaresan and Gopalan were not co-parceners, but they jointly availed loan from Co-operative Society for their business purpose, but they had not repaid it. Hence, the Co-operative Society proceeded as against those three persons and also as against the sons of Singaram, viz., Rajendran, Manivannan and Chandran for recovering the dues under that debt.
7. Whereas, the plaintiff who happened to be the daughter of Singaram would claim as one of the legal heirs of Singaram her share, so to say an extent of 1/18th share in the suit property on the ground that Singaram died leaving behind his six legal heirs, viz., (1) S.Rajendran (Son) D2 (2) S.Manivannan (Son) D3 (3) S.Chandran (Son) D4 (4) Shanthi (Daughter)Plaintiff (5) Kalavathi (Daughter)D5 (6) Meenakshi (Wife) D1
8. According to the learned counsel for the respondent herein, the unsuccessful plaintiff, in para 6 of the plaint contended as though the debt incurred by those persons were for 'ayavacarica' purpose etc. and on such ground the said debt cannot be challenged at all by the plaintiff.
9. The point which falls for consideration is as to whether simply because after the death of Singaram the Award was passed, whether the Award could be set aside or ignored at the instance of the plaintiff and permit the plaintiff to pursue with the partition suit?
10. The facts available on record and the perusal of the plaint would clearly indicate that the property is not a joint family property and as such, I would like to agree with the submission made by the learned counsel for the respondent that the very said plea referred to supra, on which the plaintiff has attempted to attack the very Award and lay claim over the suit property is untenable and exfacie and prima facie, such a suit cannot be allowed to be proceeded with.
11. Even though Singaram died during the pendency of the Award proceedings, the remaining interested persons in the property, viz., Kumaresan and Gopalan were very much alive, but they had not chosen to contest the proceeding obviously on the ground that they were having no defence, as the Co-operative Society proceeded to recover the debt incurred by them. D2, D3 and D4, admittedly before the death of Singaram were not at all entitled to the said property. After the death of Singaram, during the pendency of the award proceedings, D2, D3 and D4 could be taken as deemed to have stepped into the shoes of Singaram relating to the deceased Singaram's interest in the property and the other three legal heirs were not parties. In such a case, it is to be seen as to whether there is any fraud committed by the Co-operative Society in bringing the property for sale and obtaining an Award.
12. Here, indubitably and indisputably, uncontrovertibly and unassailably, the facts are that after the said Award, the property was brought for sale after complying with the procedure including publication etc. and the respondent happened to be one of the third party purchasers of a property, who filed I.A.No.110 of 2008 for rejection of the plaint, as against the disposal of that application he came on revision and that revision was allowed and as against such allowing of the revision, this review has been filed.
13. The core question arises as to whether this Court can by virtue of the supervisory power can allow a suit, which is exfacie and prima facie untenable to proceed further to this logical end. Time and again, the Hon'ble Apex Court as well as this Court held that fraudulent/baseless litigations in any manner should be discouraged and even at the bud itself, such suits should be nipped.
14. Here a bare perusal of the plaint and the contention on the side of the plaintiff would clearly indicate that the filing of the suit is nothing but an abuse of the process of the Court, as the Co-operative Society which brought for sale the property for recovering the debt is sought to be baselessly dragged into the litigation.
15. The learned counsel for the respondent has brought to the knowledge of this Court the fact that if at all the plaintiff was aggrieved, she could have challenged the sale as per Rule 128 of the Tamil Nadu Co-operative Society Rules. The sale was effected as early as on 25.01.2005, whereas, within thirty days she could have very well filed an application to set aside the sale as per Rule 128 of the Tamil Nadu Co-operative Society Rules, but she had not chosen to do so. However, she has chosen to file the suit instead of availing the statutory remedy available for her, if at all she was really aggrieved by such a sale.
16. The fact also remains as per the plaint averments that even in the year 2003 she was aware of the said Award as well as the proceedings taken by the authorities under the Co-operative Societies, but immediately she had not chosen to raise her accusative finger as against it. There is nothing to indicate that the Co-operative Society or the authorities under the said Act indulged in fraud or any other act which is totally illegal or antithetical to the provisions of the Tamil Nadu Co-operative Societies Act and Rules so as to attract Section 9 of CPC, so as to enable the plaintiff to file a separate suit de hors the embargo as contained under Section 156 of the Tamil Nadu Co-operative Societies Act.
17. The contention on the side of the review applicant is that there was suppression of the fact of the death of Singaram and thereupon, Award was passed, but there is nothing to indicate that there was any fraud committed by any individual in suppressing the death of Singaram and thereby gaining any mileage in the Award proceedings. As such, the contention of the plaintiff as though the plaintiff on the death of her father became the owner of the suit property is something untenable, which cannot be countenanced.
18. The learned counsel for the respondent also cited the decision of the Hon'ble Apex Court reported in (2008) 2 MLJ 1108 (SC) [Mohd.Hussain (Dead) by Lrs.and Others vs. Occhaval and Others] in support of his contention. The relevant portion is extracted hereunder for ready reference:
"........From a bare reading of the aforesaid observation of this Court in the above mentioned decision, it is clear that ordinarily the Court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this Court culled out some important exceptions:
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii) The Court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record.
Applying the dictum enunciated above, when the matter at hand is viewed, it is clear in this case even though consequent upon the death of Singaram, his wife and two daughters were not impleaded, yet his three sons were very much parties to the award proceedings and simply because they and other two owners of the said property have not chosen to contest the matter it cannot be taken as though they voluntarily and allegedly allowed the property to be grabbed by the Co-Operative Society. By no stretch of imagination, such a plea as put forth on the side of the plaintiff in the facts and circumstances of this case could be countenanced. As such, the plaintiff cannot be allowed to proceed with the suit. Even though this Court in the earlier order dated 10.02.2009 observed as under :
"6. ........ If after the death of Singaram-the father of Shanthi, his share was auctioned without impleading Shanthi-the daughter, then the matter would be different. But here indubitably and indisputably, admittedly and unassailably, during the life time of Singaram, by citing Singaram and his two sons, namely, defendants 6 and 7, the other co-sharers, the suit property was auctioned under the Tamil Nadu Co-operative Societies Act, for recovering the dues of the Co-operative Society concerned and accordingly in that auction, the revision petitioner/16th defendant happened to be the successful bidder and he got the property knocked in his favour; in such a case, he has got the right to call upon the Court to reject the plaint, but the lower Court unjustifiably dismissed the prayer of the revision petitioner.", this Court on hearing both sides and on deep analysis of the matter, is of the view that the ultimate conclusion need not be changed in view of the ratiocination supra adhered to by this Court. Accordingly, I could see no merit in the review application and the same is dismissed. No costs.
gms