Kandhaiah vs Durairaj (died) and Others

P.R. Shivakumar, J.—Arguments advanced by Mr. R. Saravanan, learned counsel for the petitioner, were heard. Kandhaiah, the first

defendant in the Original Suit in O.S. No. 651 of 1993 on the file of the District Munsif, Ramanathapuram, is the petitioner in the Civil Revision

Petition. The said suit was filed by one Durairaj S/o Santiagu as the sole plaintiff against the revision petitioner, Kandhaiah and the respondents 7 to

9 in the revision petition, for the relief of partition. In the plaint, the said Durairaj contended that the suit property was the property of one

Angammal and he being the son of Angammal born through her first husband Santiagu and the revision petitioner and respondents 4 to 7 being the

sons and daughters of the said Angammal born through her second husband, were entitled to succeed to the suit property in equal shares. The suit

was resisted contending that Durairaj was not the son of Angammal. The learned trial Judge after trial rejected the defence plea and accepted the

plea of Durairaj to be the son of Angammal born through her first husband Santiagu. The suit resulted in the passing of a preliminary decree for

partition and the preliminary decree was passed on 02.06.1996. As against the preliminary decree, the revision petitioner and the respondents 7 to

9 filed an appeal in A.S. No. 35 of 1998 and the same was dismissed. Thereafter, they filed a second appeal in S.A. No. 1434 of 1999 before the

High Court and the same was also dismissed on 25.03.2008.

After the dismissal of the second appeal, the said Durairaj, who was the sole plaintiff in whose favour the preliminary decree had been passed,

died on 25.03.2008. Thereafter, the respondents 1 to 6 herein filed a petition praying for the passing of a final decree in terms of the preliminary

decree along with the petition under Order 22 Rule 3 of the CPC to implead them as legal representatives of the deceased Durairaj in the said suit.

The said petition filed under Order 22 Rule 3 of the CPC was taken on file as I.A. No. 968 of 2011 in O.S. No. 651 of 1993 on the file of the

trial Court. The revision petitioner, who figured as the first respondent, alone contested the petition. The other respondents in the petition, namely

respondents 7 to 9 in the civil revision petition, did not contest the petition and they remained ex-prate.

The only contention on which the revision petitioner resisted the application, was that the original plaintiff Durairaj was not the son of Angammal

and hence the respondents 1 to 6 herein could not file the final decree application as legal representatives of Durairaj. In a petition under Order 22

Rule 3 of the Code of Civil Procedure, what is to be considered is whether the persons claiming to be the legal representatives of a deceased party

are in fact legal representatives of such party or not? Whether the original plaintiff was the son of Angammal and whether his claim to be a legal heir

of Angammal could be sustained or not? are not germane to the petition filed under Order 22 Rule 3 of the Code of Civil Procedure. The said

question was an issue and in fact the main plea of defence in the original suit. The said plea of defence taken by the revision petitioner and

respondents 7 to 9 was negatived by the trial Court. It was also confirmed not only by the first appellate Court, but also by the second appellate

Court namely, High Court. Thereafter, the very same question cannot be raised in the subsequent proceedings. The revision petitioner seems to

have opposed the application filed under Order 22 Rule 3 of the CPC on an erroneous assumption that the question which had been given a

quietus by the Judgment of the trial Court resulting in the preliminary decree, which was confirmed by the High Court in the second appeal, can be

reopened and re-agitated.

The learned counsel for the petitioner made a meek attempt to contend that since the second appeal was withdrawn by the revision petitioner, it

cannot be taken as a confirmation of the decrees of the trial Court and the first appellate Court by the High Court in the second appeal. Whether

the second appeal is dismissed as withdrawn or on merits, the result shall be one and the same, namely confirmation of the decree passed by the

first appellate Court. The first appellate Court''s decree confirming the preliminary decree passed in the suit is in recognition of the plea of Durairaj

that he was the son of Angammal born through her first husband Santiagu. The said question cannot be re-agitated and the present attempt made

by the revision petitioner stands barred by the principle of res judicata. The learned trial Judge made no mistake in law and the present revision

petition does not fall within any one of the clauses (a) to (c) of Section 115 of the Code of Civil Procedure. The finding cannot be termed perverse.

There is no merit in the present Civil Revision Petition and the same deserves dismissal at the threshold. Accordingly, this Civil Revision Petition is

dismissed. No costs. Consequently, connected Miscellaneous Petition is dismissed.