Karuppana Counder vs Shanmuga Counder

K. Kalyanasundaram, J.—These Civil Revision Petitions are filed challenging the orders passed in I.A. No. 1545 of 2006 and I.A. No. 1583 of 2006 in O.S. No. 70 of 2005 by the District Munsif Court, Palani. The respondent instituted a suit in O.S. No. 70 of 2005 on the file of the District Munsif Court, Palani for declaration and permanent injunction restraining the defendants, their men from interfering with his peaceful possession and enjoyment of the suit property. The Petitioners are the defendants in the suit.

The Plaintiff filed an application in I.A. No. 1545 of 2006 for appointment of an Advocate Commissioner to note down the physical features of the suit property. The application was resisted by the Petitioners, but however, the learned District Munsif allowed the application. Challenging the said order, C.R.P (PD)(MD) No. 1214 of 2008 is filed. The defendants in the suit filed an application in I.A. No. 1583 of 2006 under Order 7 Rule 11 of C.P.C. to strike off the plaint. The respondent resisted the Petition. The learned District Munsif dismissed the application; Challenging the said order, C.R.P. (PD)(MD) No. 1675 of 2008 is filed.

The facts necessary for the disposal of the revisions are as follows:

"One Kupputhayammal instituted a suit in O.S. No. 914 of 1974 before the Sub-Court, Palani against one Ponkaliyappa Gounder for recovery of money. In the suit, in I.A. No. 1369 of 1974, the properties of Ponkaliyappa Gounder in S. No. 473/3 measuring two acres and 26 cents, S. No. 472/2 measuring 0.16 cents, S. No. 472/3 measuring to an extent of 1 acre 50 cents were attached before judgement. Interim attachment order dated 23.12.1974 was made absolute on 30.1.1975. The suit was decreed on 19.4.1979 and in the execution proceedings, the properties referred to above were sold in court auction sale in E.P. No. 467 of 1983 on 16.12.1985. The plaintiff in the suit namely Kupputhayammal was the successful bidder in the court auction sale. On 21.7.1987 the sale was confirmed and a sale certificate was also issued in favour of the said Kupputhayammal. Thereafter, the properties were delivered to the auction purchaser and the same was recorded in the execution proceedings on 12.4.1988."

The second Petitioner Murugayee Animal purchased 1 acre in S. No. 472/3 and 16 cents in S. No. 472/2 from the said Kupputhayammal by registered sale deed dated 14.09.1988 along with a well with 5 HP Electric motor. It is seen from the records that the original owner Ponkaliyappa Gounder filed an application in E.A. No. 303 of 1989 in E.P. No. 467 of 1983 challenging the court auction sale made in favour of Kupputhayammal. After enquiry, the application is dismissed by the learned District Munsif on 7.12.1990. Aggrieved by the order the said Ponkaliyappa Gounder filed an appeal in C.M.A. No. 2 of 1991 before the District Court, Dindugul, but the learned Appellate Judge dismissed the appeal confirming the order passed by the learned District Munsif. It is also seen that the judgement passed in C.M.A. No. 2 of 1991 was not challenged further by the said Ponkaliyappa Gounder and hence it reached its finality.

Thereafter, the original owner Ponkaliyappa Gounder filed a separate suit in O.S. No. 340 of 1989 against the Petitioners for permanent injunction in respect of Properties in S.Nos. 472/3 and 472/2. The suit was dismissed by the learned District Munsif on 22.4.1996 and the appeal A.S. No. 122 of 1996 filed before the Sub-Court Palani, was dismissed on 13.07.1998. The second appeal S.A. No. 1445 of 1998 filed against the judgement and decree passed in A.S. No. 122 of 1996 was dismissed by this Court on 3.2.2005. It is noted that the original owner Ponkaliyappa Gounder filed another suit in O.S. No. 985 of 1991 against the Tamil Nadu Electricity Board and the second Petitioner in respect of service connection given to the well situated in S. No. 472/2. The said suit was also dismissed by the learned District Munsif on 4.1.2001.

When the original owner Ponkaliyappa Gounder during his lifetime had been challenging the court auction proceedings, his son the respondent filed a suit O.S. No. 484 of 1995 before the District Munsif Court, Palani against the second Petitioner and Court Auction Purchaser Kupputhayammal in respect of S. No. 473/3 for declaration and injunction. The suit was dismissed after trial on 27.3.2002. Aggrieved by the judgement and decree the Respondent filed an appeal in A.S. No. 27 of 2002 which was dismissed by the Fast Track Court, Dindigul on 9.6.2004. The Second Appeal filed against the Judgement and decree in A.S. No. 27 of 2002 was dismissed by this Court on 28.4.2010. The suit O.S. No. 122 of 1991 filed by the Kupputhayammal against Ponkaliyappa Gounder in respect of three items of properties was decreed by the learned District Munsif, Palani on 27.3.2002. The appeal filed against the judgement and decree by Ponkaliyappa Gounder was dismissed on 17.09.2004. When all the above said proceedings had reached finality, which were instituted on the basis of the Court auction sale dated 16.12.1995 made in favour of Kupputhayammal, the respondent has now filed the present suit in O.S. No. 70 of 2005 seeking permanent injunction against the Petitioners contending that the original owner Ponkaliyappa Gounder effected partition in me year 1973, which was confirmed by the registered partition dated 17.10.1980 and as per the partition deed he is in possession of the suit property i.e., S. No. 472 of 3-B 0.50 cents excluding 1 acre.

Heard the submissions made by Mr. S. Harihara Subramanian, learned counsel for the Petitioners and Mr. T. Lajapathi Roy, learned counsel for the respondent and perused the records

The learned counsel for the Petitioners submitted that the earlier proceedings would reveal that the Court Auction sale reached its finality by dismissal of the application in E.A. No. 303 of 1989 filed by Ponkaliyappa Gounder on 7.12.1990 and the appeal filed by the original owner in C.M.A. No. 2 of 1991 on 28.2.2995. While so, subsequent litigations by the respondent and his father are clear abuse of process of law and the same is liable to be rejected. The learned counsel further submitted that under Order 7 Rule 11 of CPC, if this Court finds that the present suit is a re-litigation, it can be struck off by this Court. In support of his version, the learned counsel for the Petitioners has placed reliance on the following judgements.

"1. 2005-4-L.W 206 (The Member Concern Department of Post v. Ms. Annapoorani and others)

N. Palanisami Vs. A. Palaniswamy, : N. Palanisami Vs. A. Palaniswamy, ."

Per contra, the learned counsel for the respondent submitted that the second Petitioner had purchased only 1 acre in S. No. 472/3 and 16 cents in S. No. 472/2 from Court Auction Purchaser Kupputhayammal and the present suit is filed in respect of remaining 50 cents in S. No. 472/3 and hence, the suit is maintainable. The learned counsel further submitted that there is a dispute with regard to the description of property and the learned District Munsif rightly dismissed the application holding that the document relied on by the Petitioners can be proved only during trial.

Indisputably, the properties in S. No. 473/3 measuring to an extent 2 acre 26 cents, S. No. 472/2 measuring 16 cents and S. No. 472/3 measuring 1 acre 50 cents of Amarapoondi village, Palani Taluk, Dindigul District was sold in Court Auction on 16.12.1985 in favour of Kupputhayammal. The sale was confirmed and a sale certificate was also issued in favour of Kupputhayammal on 21.7.1987. The original owner Ponkaliyappa Gounder challenged the sale in E.A. No. 303 of 1989 in E.P. No. 467 of 1983 which was dismissed on merits by the learned District Munsif on 17.12.1990. The appeal filed against the order made in C.M.A. No. 2 of 1991 was dismissed by the District Court, Dindgul on 28.2.1995. Subsequently, the original owner Ponkaliyappa Gounder and his son the respondent herein Shanmugam have been filing suits unsuccessfully as referred to above for different survey numbers, different suits. All the suits filed earlier challenging the court auction sale was dismissed and they were also confirmed by this Court.

In the above factual position, the respondent filed the present suit without disclosing the previous proceedings by merely stating that as per the oral partition effected in the year 1977 and registered partition deed dated 17.10.1980, he is in possession of the suit property. The respondent claims title only through his father Ponkaliyappa Gounoer, but in the civil suits referred supra, it has been held that the said Ponkaliyappa Gounder has lost his title in respect of above three survey numbers S.A. Nos. 472/2, 472/3 and 473/3.

In the case on hand, the respondent has no title in S.F. No. 472/3 which is now sub-divided into S. No. 472/3B. The respondent claims title only through his father Ponkaliyappa Gounder. As stated supra, the said Ponkaliyappa Gounder has already lost his title in the Court auction proceedings, so the respondent cannot claim any right in the suit property. The previous proceedings and the present suit would show that this is a clear case of re-litigation.

In 2005 4 LW 206 (The Member Concern Department of Post vs. Ms. Annapoorani and others) this Court held as as follows:

"26. One of the examples cited as an abuse of the process of the Court is re-ligation. It is an abuse of process of the Court and contrary to Justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res-judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of process of the Court. A proceeding being filed for a collateral purpose, as 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 Court then has the power to stop such proceedings summarily and prevent the time of public and the Court from being wasted. Undoubtedly, it is a matter of the Court''s discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which would be sparingly exercised and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding."

In N. Palanisami Vs. A. Palaniswamy, : 1998 (II) CTC 165(Nesammal and another v. Edward and another), this Court has upheld the rejection of plaint by the trial Court under Order 7 Rule 11 of Civil Procedure Code on the ground of suppression of materials and re-agitating the same matter and it is held as follows:

"11. In view of all these decisions the argument of the counsel for the Petitioners that unless the conditions are satisfied under Order 7 Rule 11 of Code of Civil Procedure, the plaint cannot be rejected is without any basis. The provisions of Order 7 Rule 11 are not exhaustive and the Court has got inherent powers to see that the vexatious litigations are not allowed to take or consume the time of the Court. In appropriate cases, directions can be given by this Court as well as the Court in which the suit is filed not to entertain the suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law. In this case all the grounds are made out and the very same plaintiff who got defeated in the litigation has agitated the very same issue by filing the present plaint. I appreciate the stand taken by the Lower Court in rejecting the plaint at the threshold."

Keeping in mind, the principles laid down by this Court and in view of my findings supra, the present suit is liable to be struck off on the grounds of suppression of material facts and as an abuse of process of law. In view of striking off the plaint from the file, no further orders are necessary in I.A. Nos. 1545 of 2006 in O.S. No. 70 of 2005, on the file of the District Munsif Court, Palani. In the result, the order passed in I.A. No. 1583 of 2006 is set aside and the plaint in O.S. No. 70 of 2005 is struck off from its file. Both the Civil Revision Petitions are allowed. Consequently, connected Miscellaneous Petition is closed. No costs.