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Judgment
V. Kanagaraj, J.—This Civil Revision Petition is directed against the fair and decretal order dated 27.6.1996 made in IA.No.557 of 19% in O.S.No.46 of 1994 on the file of the Court of Principal District Munsif, Villupuram thereby dismissing an application filed by the petitioners herein under Order 14 Rule 2(1) and Section 151 of the Code of Civil Procedure. The Revision petitioners, who are the defendants 1 to 5 to the suit in O.S.No.46 of 1994, have filed the petition in I.A.No.557 of 1996 under Order 14, Rule 2(1) and Section 151 of the CPC alleging thereby (1) that the respondents herein have filed the suit praying to declare that they are entitled, in their capacities as sons, daughters and wife of the deceased Selvanathan, to receive all the amounts due to the estate of the deceased Selvanathan, an employee of the 6th defendant-Villupuram Municipality and for permanent Injunction restraining the 6th defendant Municipality from making any payment of or recommendation or certification for the payment of or for the grant of amounts due to the estate of deceased Selvanathan or due to the sons, daughters or wife of the deceased Selvanathan to the defendants 1 to 5 and for costs; (ii) that a similar suit filed by the respondents herein in O.S.No.500 of 1991 got dismissed on 13.3.1992; (iii) that an application filed u/s 5 of the limitation Act in I.A.No.1030 of 1992 also got dismissed on 22.7.1993; (iv) that these petitioners filed O.S.No.1079 of 1992 praying to declare them as the heirs of the deceased Selvanathan and they are entitled to the estate of the deceased Selvanathan and the said suit got decreed on 21.6.1993; (v) that the application filed in I.A.No.1523 of 1993 by the respondents herein praying to set aside the ex parte decree also got dismissed on 18.2.1994; (vi) that against the dismissal of I.A.No.1030 of 1992 in O.S.No.500 of 1991, the respondents herein have filed C.R.P.No.1743 of 1994 in the High Court of Judicature at Madras and that too got dismissed; (vii) that the respondents herein have again filed the present suit for the same relief; (viii) that O.S.No.500 of 1991 and O.S.No.46 of 1994 are for one and the same relief and with the same cause of action and the present suit in O.S.No.46 of 1994 is barred under Order 2 Rule 2 of the Code of Civil Procedure; (ix) that such legal questions must be taken on preliminary issued framed and determined, in which event much of the time of the Court and lengthy oral evidence could be avoided; (x) that the present suit is barred by res judicata and this question has to be decided as a preliminary issue and on such grounds, the petitioners would pray to take up the issue of res judicata and the bar of the suit as preliminary issues and decide the same.
In the counter filed by the respondents, they would contend (i) that preliminarily it has to be decided whether the first petitioner is the legally wedded wife of the deceased Selvanathan; (ii) that the question of res judicata is a mixed question of facts and law and hence it could be decided only after full trial; (iii) that if the question relates to the jurisdiction of the Court or a bar created by any law, such questions could be preliminarily decided without any oral evidence being let in; (iv) that the trial in the suit had been commenced on 4.12.1995 itself; (v) that after the examination of P.W.1, the above application has been filed by the petitioners; (vi) that it is false to allege that the case is barred under Order 2, Rule 2 of the Code of Civil Procedure, which is not applicable to the case in hand; (vii) that the petitioners suppressed the fact that the petition filed to set aside the ex parte decree passed in O.S.No.1079 of 1992 having been dismissed, is pending on appeal before the Sub-Court, Villupuram in C.M.A. No.65 of 1994 and hence the ex parte decree passed by the District Munsif, Villupuram in O.S.No.1079 of 1992 is not final; (viii) that the suit in O.S.No.500 of 1991 was not dismissed on merit; (ix) that the respondents have also taken steps to review the order passed in C.R.P.No.1743 of 1994 since the petitioners have not disclosed the fact of pending of the C.M.A.No.65 of 1994 to the High Court; and (x) that the petition was highly belated, which should have been filed at the initial stage of the case, but not after examination of P.W.1 in the trial of the suit as it had been done in this case and hence would pray for dismissing the petition with costs.
The Court of District Munsif, Villupuram, having discussed the merit of the petition and the counter, has ultimately arrived at the conclusion to dismiss the petition, as a result of which, the petitioners have come forward to file the above Civil Revision Petition on grounds such as (i) that the learned Judge failed to note that the reliefs sought for in the present suit are identical to the reliefs sought for in O.S.No.500 of 1991; (ii) that the learned Judge failed to note that the defendants/ petitioners already filed O.S.No.1079 of 1992 for declaration to the effect that they are the legal heirs of the deceased Selvanathan and entitled to all the benefits and the same was decreed in their favour; (iii) that the learned Judge further failed to note that cause of action in both the suits filed by the respondents herein are one and the same as it is the reliefs claimed in both the suits; (iv) that the learned Judge failed to note that the present suit is barred by res judicata and when this principle applies, it is the duty of the Court to try the issue as a preliminary one; (v) that the learned Judge further failed to note that the suit is barred by the provisions of Order 2 Rule 2 of the C.P.C. (vi) that the learned Judge has erred in thinking that no finality has been reached in the previous proceedings which is incorrect even on the admitted facts; (vii) that the learned Judge ought to have allowed the application to thwart the intention of the plaintiffs/respondents to postpone the fruits of the decree being realized by the defendants/petitioners.
During arguments, the learned counsel appearing for the petitioners would contend that the deceased Selvanathan died on 5.6.1991; that O.S.No.500 of 1991 had been filed by the respondents herein for declaration as to who are the legal heirs of deceased Selvanathan and that suit got dismissed for default; that the petitioners herein filed O.S.No.1079 of 1992 for an identical relief to declare them as wife and the children of deceased Selvanathan and that suit was decreed ex parte on 21.6.1993; that the respondents herein have filed another suit in O.S.No.46 of 1994 for identical relief, slightly changing the relief of O.S.No.500 of 1991, as seen in para No.10 of the plaint; that the petition to condone delay in filing the petition for restoration of the suit in O.S.No.500 of 1991, which was dismissed for default, was also dismissed and the C.R.P. No.1743 of 1994 filed against such dismissal was also dismissed; that the petitioners in their affidavit have clearly stated that for settling the questions of res judicata and bar of fresh suit, preliminary issues have to be framed and determined prior to determining the other issues and since the lower Court dismissed the petition filed by the petitioners herein under Order 14 Rule 2(1) and Section 151 of the C.P.C., they preferred the present Civil Revision Petition. At this juncture, the learned counsel would cite a judgment delivered in N.K.T. National Girls Higher Secondary School represented by its Secretary School Committee Mrs. Mono Bakthavatsalam, Chennai v. The Government of Tamil Nadu and others reported in (1999) I M.L.J. 11 = 1998 Writ L.R. 795 = 1998. 2 L.W. 25 S.N. wherein it is held that under Order 9 Rules 8 and 9 of the C.P.C., dismissal of the suit for default is not an adjudication and hence the plaintiff will be barred from filing fresh suit on the same cause of action but it will not operate in favour of the defendants as res judicata. Citing the above proposition of law from the judgment, the learned counsel would further contend that under Order 9 Rule 9 of the C.P.C., if a suit is dismissed for default, a fresh suit is barred on the same cause of action.
The learned counsel for the petitioners would cite number of judgments in justification of his contention. The first among them is one delivered in The Registrar, The Registrar, Manonmaniam Sundaranar University Vs. Suhura Beevi Education Trust and Others, wherein it is held:
"On a careful analysis of the nature of claim sought to be projected in the subsequent suit one is constrained to come to the inevitable conclusion that it is for the very same purpose and with the very same object for which the earlier suit was filed, the second suit also came to be filed by the plaintiff apparently with an oblique and sinister motive and more. In addition thereto, undue haste and urgency appears to have been exhibited in seeking orders for dispensing with the compliance of the requirement of the notice under Sec.80, C.P.C., notwithstanding the pendency of the earlier suit. The plaintiff could not have sought for the relief of the nature prayed for in the second suit also without the presence of the petitioner-University, which is a necessary and proper party to the proceedings. The provisions of the Tamil Nadu Private Colleges (Regulation) Act would show that apart from getting recognition from the Government concerned, the affiliation of the concerned university must also be obtained to start an educational institution and it is beyond comprehension as to how the plaintiff could have chosen to institute a suit with a relief of protection in the nature of declaration of minority status of the plaintiff qua the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and Rules thereunder without arranging the necessary and proper parties to the said proceedings. The second suit appears to be deliberately schemed one to play fraud on the Court as also the opposite party, in gross abuse of process of Court, Hence the ex parte decree passed in the second suit has to be set aside".
The second judgment cited by the learned counsel for the petitioners is one delivered in P. Chenchu Ramiah Vs. A.M. Noohu Nachia and Another, wherein it is held:
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 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 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 third judgment cited by the learned counsel for the petitioner is one delivered in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, where it is observed:
The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank- loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
The other judgment cited by the learned counsel for the petitioners is one delivered in The Oriental Insurance Company Vs. R. Mani and Another, wherein also it is held that the judiciary possesses inherent powers to recall its judgment or order, if it is obtained by fraud and when allegation of fraud is found to be prima facie sustainable, authorities should not have returned the application.
The last judgment cited by the learned counsel for the petitioner is one delivered in Mana Soosai and another v. Esakkiammal reported in 1999-1-L.W. 727 wherein the learned single Judge of this Court has held that all the facts taken together, de hors the patta proceedings before the Settlement authorities show the petitioners are entitled to succeed and when possession has been allowed to be recovered on the basis of title, the present suit is nothing but abuse of process and with these remarks, the Court has directed the plaint to be struck off. The learned Judge would further quote from the Supreme Court Practice, 1995 published by Sweet and Maxwell, wherein the phrase "abuse of the process of the Court" is explained in the following terms:
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.
The learned counsel for the petitioners would read the pleadings of both the plaints in O.S.Nos.500 of 1991 and 46 of 1994 and would end up saying that except para No.10, the whole plaints are the same wording commencing from and ending with and would wonder as to how the office numbered the suit in O.S.No.46 of 1994 and would pray for allowing the Civil Revision Petition.
In reply, the learned counsel appearing for the respondents, besides giving the factual position of this case, would contend that the two main points raised by the other side is res judicata u/s 11 of the C.P.C. and the other under Order 2, Rule 2 of the C.P.C., that under both these circumstances, it is only Order 14 Rule 2(2) that is concerned with the preliminary settlement of the issue and they could arise only (i) if it should be decided purely on a question with respect to the jurisdiction of the Court; and (ii) if a bar is created by law for the time being in force. He would further contend that there is a specific bar for the Rent Control matters being taken up by Civil Court; that only under the above said circumstances, the preliminary issues could be tried; that the petitioners have now raised res judicata which is a mixed question of law and facts and it cannot be taken up as a preliminary issue; that both the earlier suits were not decided on merit and only the case in hand could be decided on merit; that the lower Court has considered these vital points and had widely discussed them, prior to arriving at the conclusion to dismiss the application. At this juncture, the learned counsel would cite two judgments viz. (1) delivered in M/s. Ramdayal Umraomal v. M/s. Pannalal Jagannathji reported in AIR 1979 Madhya Pradesh 153 and (2) delivered in Bhupender Kamal Vs. New Delhi Municipal Committee, .
In the first judgment cited above, it is held:
This provision (Order 14, Rule 2) makes it clear that the issue as to jurisdiction may be an issue of law or of fact or a mixed issue. The obligation to try the issue of jurisdiction as preliminary arise only when it is an issue of law. Issue of jurisdiction depending on question of fact and, or mixed question of law and fact, must be decided on merits at one and the same time, along with the other issues. If the Court finds, on a trial, on merits so far as this issue of jurisdiction goes, that the case is not cognizable by the Court because of want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper Court, and if, on the other hand, it finds that having regard to the nature of the suit, it is not cognizable by the class of Courts to which the Court belongs, the plaintiff''s suit will have to be dismissed in its entirety. Discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence.
In the second judgment cited above, dealing with Order 14, Rule 2 of the C.P.C. it is held:
In the amended Civil P.C. under O.14, R.2, only two categories of issues can be decided as preliminary issue. Those issues of law relate to (a) the jurisdiction of the Court or, (b) a bar to the suit created by any law for the time being in force. Apart from those issues, no other issue can be tried as preliminary issue by the Court The issue, which has been decided as a preliminary issue in the instant case does not fall in the category of the preliminary issues which are permissible to be tried as such under the provisions of 0.14. The jurisdiction vested in the trial Court has not been properly exercised while deciding the said issue. The order, deciding that issue, if allowed, would occasion a failure of justice and in any case cause irreparable injury to the petitioners.
The crucial point that is to be decided in the application filed under Order 14, Rule 2(1) and Section 151 of the CPC is, whether, on facts alleged on the part of the petitioners, the requirements of the Section, under which the application has been made, have been complied with and whether there is need for allowing such an application at a stage when, admittedly, the trial in the suit has commenced and P.W.1 already got examined in chief and cross?
For the sake of convenience, I extract Order 14, Rule 2(1) and (2) hereunder:
Court to pronounce judgment on all issues:-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force.
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
So far as Order 14, Rule 2(1) is concerned, subject to the provisions of sub-rule (2), the Court shall pronounce judgment on all issues. For this provision of law, sub-rule (2) serves as an exception wherein if issues both of law and fact arise and the Court is of the opinion that the case may be disposed of on an issue of law alone, it may try that issue if it relates to (a) the jurisdiction of the Court or (b) a bar to the suit created by law, and for the said purpose it could postpone the settlement of other issues. Hence, it is clear that only on two reasons, that is, on the question of jurisdiction of the Court and a bar of the suit created by law, issues could be tried preliminarily and settled prior to settling the other issues, based on facts or mixed questions of law and fact.
It is the case of the petitioners that since similar suits have already been filed and decided on similar set of facts and on the same cause of action, the suit filed by the respondents herein, O.S.No.46 of 1994 is barred by res judicata. But, the question of res judicata could be raised only where the ''former suit directly and substantially in issue'' has been ''heard and finally decided by the Court''. Nothing has been shown here by the petitioners that in suits hereinbefore, which are directly and substantially in issue with the present suit have been finally heard and decided.
So far as the suit said to have been filed by the respondents previously, it is alleged to have been dismissed for default and not finally heard and decided nor admittedly the suit filed in O.S.No.1079 of 1992 by the petitioners has been finally heard and decided. Hence, there is no question of the present suit filed by the respondents in O.S.No.46 of 1994 becoming barred by res judicata at all. Therefore, this legal question raised on the part of the petitioners is decided against the petitioners and in favour of the respondents.
Coming to Order 14, Rule 2(1) of the Code of Civil Procedure, notwithstanding that a case may be disposed of on a preliminary issue, subject to the provision of sub-rule (2), the Court shall pronounce judgment on all issues, thereby meaning that even those questions which could be preliminarily decided could be ultimately tried and decided on trial regarding all those issues that arise in a case. It is only under this provision, the petition has been filed. But, at the same time, Order 14, Rule 2(2), C.P.C. would postulate that the Court may try preliminarily on a issue of law provided it relates to either (a) the jurisdiction of the Court or (b) the bar to the suit created by any law, in which event alone and for that purpose, if the Court thinks fit, postpone the settlement of the other issues until such legal issues are determined and may deal with the suit in accordance with the decision of those issues.
From the above legal position what comes to be known is that both the provisions of Law, i.e., Order 14, Rule 2(1) and Order 14, Rule 2(2) since being interconnected and interrelated to each other, none of these two provisions could be read in isolation of the other and they should be read along with in order to get the full meaning of the combination of both.
So far as the petition filed by the petitioners is concerned, it has been filed under Order 14, Rule 2(1) of the C.P.C. and since Order 14, Rule 2(2) is only the continuity of Order 14, Rule 2(1), unless the conditions stipulated under Order 14, Rule 2(2) are complied with, no decision could be arrived at independently under Order 14 Rule 2(1) since Order 14, Rule 2(2) is a subjective provision to Order 14, Rule 2(1). Looking into the facts of the case, since no question of jurisdiction of the Court has been raised in the petition, thus complying with the conditions stipulated in Order 14, Rule 2(2)(a) nor have the petitioners succeeded in complying with the Order 14, Rule 2(2)(b) i.e. a bar to the suit created by any law, since they have failed in their attempt pleading res judicata as the bar, it is not incumbent on the part of the Court to try any issue as a preliminary one and since the petitioners have failed to comply with the subjective rule i.e. Order 14, Rule 2(2), they will have to go in accordance with Order 14, Rule 2(1).
For the above clarifications of the position of law and on facts, since it also comes to be known that P.W.1 had already been examined in the suit and at this belated stage, to decide the issues which are to arise at the initial stage of framing of the issues is undesirable and cannot be entertained in the sense that it is incumbent on the part of the Court to try all the issues whether legal or factual, or wherein mixed questions of law and facts are involved and determine the matter ultimately and pronounce the judgment in its entirety. At this score also, the petition filed by the petitioners fails to impress upon the Court.
So far as the judgments cited in support of the case of the petitioners are concerned, the first judgment is one reported in (1994) II M.L.J. 85 (cited supra) wherein the second suit filed has been concluded to have been filed to play fraud on the Court as also the opposite party in gross abuse of process of the Court. In the above circumstances, it was only the ex parte decree, that was passed in the second suit, has been set aside thereby allowing an application filed to set aside the ex parte decree by the other side and it is not a decision rendered on the principle of res judicata for which purpose the above judgment was cited by the petitioners.
The second judgment cited by the learned counsel for the petitioners is one reported in (1999) I M.L.J. 324 (cited supra). Though it deals with the doctrine of res judicata, on the given set of facts therein, the Court has concluded that it was amounting to an abuse of process of the Court, especially where such proceedings are absolutely groundless.
The third judgment cited by the learned counsel for the petitioners is one reported in (1994) I S.C.C. 1 (cited supra). It is a false case that has been filed by bogus and dishonest litigants and not to encourage such anti-social elements such as property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life who find the Court process a convenient lever to retain the illegal-gains indefinitely, the Apex Court holds that they have no hesitation to say that such persons cases can be summarily thrown out at any stage of the litigation.
The other judgment cited by the learned counsel for the petitioners is one reported in Oriental Insurance Company Vs. R. Mani and Another, which deals with fraud and contemplates that when allegation of fraud is found to be prima facie sustainable, authorities should not have returned the application.
The last judgment relied on by the learned counsel for the petitioners is one reported in 1999-1-L.W.727 (cited supra) wherein the patta proceedings before the Settlement Authorities show the petitioners are entitled to succeed and remarking that when possession has been allowed to be recovered on the basis of title, the suit is nothing but abuse of process, and the Court has directed the plaint to be struck off.
In short, it is neither fraud nor abuse of process of Court nor litigation by men of unscrupulous or antisocial activities either alleged or made out nor it is a case to set aside an ex parte decree so as to become applicable to the instant case. Hence, none of the propositions of law cited from all the above judgments by the learned counsel for the petitioners could be applied to the present case since the petition has not been filed on such averments pertaining to which the Courts have held in the above manner and they cannot be applied to the case in hand, which have been filed on a different footing and on different set of facts, which have absolutely no bearing on the judgments cited by the learned counsel for the petitioner. On the contrary, the two judgments cited by the learned counsel for the respondents viz. (1) Ramdayal Umraomal Vs. Pannalal Jagannathji, directly applies to the case in hand. In the first judgment cited above, it is clearly states as follows:
The obligation to try the issue of jurisdiction as preliminary arise only when it is an issue of law. Issue of jurisdiction depending on question of fact and, or mixed question of law and fact, must be decided on merits at one and the same time, along with the other issues.
Discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence.
In the second judgment cited above, it has been tellingly held that excepting those issues of law relating to (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force, no other issue can be tried as preliminary issue by the Court. So far as the case of the petitioners is concerned, the petitioners failed to substantiate the only legal question of res judicata that has been pleaded for being preliminarily tried. No other question of jurisdiction of the Court or bar to the suit created by any law has either been pleaded or sought to be tried preliminarily. The only legal question of res judicata has been raised by the petitioners at a highly belated stage i.e. after P.W.1 was examined in the suit. Absolutely, there is no scope for the petition being considered favourably as a result of which the lower Court has rightly decided to dismiss the same.
The trial Court, in consideration of the questions involved in the petition, has well appreciated not only the position of law but also the other questions involved and has passed merited order and the interference sought for by this Court into the same is uncalled for and the same is rejected. In result, the above Civil Revision Petition fails and the same is dismissed. The fair and decretal order dated 27.6.1996 made in I.A.No.557 of 1996 in O.S.No.46 of 1994 by the Court of Principal District Munsif, Villupuram is hereby confirmed. However, in the circumstances of the case, there shall be no order as to costs.