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Judgment
G. Rajasuria, J.—This second appeal is filed by the Plaintiff, inveighing the judgment and decree dated 22.7.2010 passed by the Subordinate Judge, Ranipet, Vellore District, reversing the judgment and decree dated 31.8.2007 passed by the District Munsif, Sholinghur, in OS. No. 6 of 2006, which was filed for permanent injunction.
The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
The merits relating to the factual matrix lie within a narrow campus, which could tersely and briefly be set out thus:
(a) The Appellant herein, as Plaintiff, filed the suit for bare injunction relating to an immovable property described in the schedule of the plaint.
(b) The Respondents/Defendants resisted the suit by filing written statement.
(c) Whereupon the trial Court framed the issues. The Plaintiff on his side examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A4. On the Defendants'' side, the first Defendant examined himself as D.W.1 along with D.W.2-the second Defendant and marked Exs.B1 to B31. Exs.C1 and C2 were marked as Court documents.
(d) Ultimately, the trial Court decreed the suit to the effect that the injunction shall be in force, pending disposal of one other partition suit in O.S. No. 11 of 2001 on the file of the Sub-Court, Ranipet, as against which, the Defendants preferred the appeal. Whereupon, the appellate Court reversed the judgment and decree of the trial Court and dismissed the original suit on the main ground that the partition suit O.S. No. 11 of 2001 was dismissed for default.
Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, the Plaintiff filed this second appeal on various grounds, inter alia to the effect that the appellate Court was not justified in simply upsetting the reasoned judgment and decree of the trial Court on the flimsy ground that the suit O.S. No. 11 of 2001 was dismissed for default, without taking into consideration the fact that the application filed u/s 5 of the Limitation Act was pending, at the instance of the Plaintiff therein to get the suit O.S. No. 11 of 2001 restored.
Accordingly, the following substantial questions of law are found suggested in the second appeal:
a) Whether the dismissal of injunction suit during the pendency of the comprehensive suit for partition will take away the rights of the parties?
b) Whether the dismissal of O.S. No. 6 of 2006 which is a suit for bare injunction will have bearing on the pendency of O.S. No. 11 of 2001 which is a suit for partition?
c) Whether the dismissal of the suit in O.S. No. 11 of 2001 for default will operate as resjudicata in O.S. No. 6 of 2006 on the file of the District Munsif Court, Sholinghur?
d) has not the lower Appellate Court errred in reversing the well considered judgment of the trial Court?
(extracted as such)
After hearing both sides, I am of the considered view that the following substantial question of law could be formulated for consideration:
Whether the bare suit for injunction was maintainable, during the pendency of the regular partition suit, i.e.O.S. No. 11 of 2001, wherein the present suit property happened to be one of the suit items and the parties herein are also figuring in the party array?
The gist and kernal, the pith and marrow of the arguments, as put forth and set forth on the side of the Appellant/Plaintiff would run thus:
(i) The suit property involved in this matter happened to be one among the joint family properties and the Respondents/Defendants are carrying on with the construction to the detriment of the Plaintiff''s right.
(ii) Even though the Plaintiff-one of the co-sharers in O.S. No. 11 of 2001 allowed the partition suit to be dismissed for default, yet subsequently, steps were being taken to get the said suit restored and now the petition u/s 5 of the Limitation Act is pending. In such a case, the first appellate Court was not justified in leaving the Appellant/Plaintiff high and dry and the Plaintiff is in need of relief at the hands of this Court, as otherwise, even if any partition decree is passed, the rights of the Plaintiff/Appellant would be prejudiced.
By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the Appellant/Plaintiff, the learned Counsel for the Respondents/Defendants would advance his arguments, which could tersely and briefly be set out thus:
(a) Piecemeal suit in the form of injunction suit is not maintainable.
(b) As on the date of the filing of the present suit, the Plaintiff herein happened to be one of the Defendants in the said partition suit in O.S. No. 11 of 2001 and the subject matter of the present suit also is one of the items in the partition suit, admittedly, and in such a case, the trial Court itself was not justified in entertaining such a bare suit injunction and granting injunction. The appellate Court correctly and appropriately reversed the judgment and decree of the trial Court, warranting no interference in second appeal.
The learned Counsel for the Defendants would submit that no question of law much less substantial question of law would arise for consideration in this second appeal and as such, he prays for the dismissal of the same.
At the outset itself, I would like to fumigate my mind with the following decisions of the Honourable Apex Court:
(i) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, , certain excerpts from it would run thus:
It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
In Hero Vinoth v. Seshammal, this Court has observed that: SCC p.556, para 24
(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or action on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
(i) (2006) 5 Supreme Court Cases 545 - Hero Vinoth (Minor) v. Seshammal;
(ii) 2008(4) Scale 300 - Kashmir Singh v. Harnam Singh And Anr..
(iii) 2009-1-L.W.1 - State Bank Of India and Ors. v. S.N.Goya:
A plain reading of the above precedents would reveal and demonstrate that u/s 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless substantial question of law is involved.
Indubitably and indisputably, as on the date of filing of the present suit OS. No. 6 of 2006, the earlier partition suit O.S. No. 11 of 2001, which was filed by one other co-sharer belonging to the family of the Plaintiff and the Defendants herein, adding the subject matter of this suit as also one of the items therein, was pending.
At this juncture, I would like to point out that piecemeal litigation is prohibited. The cause of action for a suit has to be ascertained and reckoned as it prevailed on the date of filing of the suit. As on the date of filing of the present suit, the earlier partition suit O.S. No. 11 of 2001 was pending and in that the parties herein also were parties therein along with others. The Plaintiff herein who was the Defendant there in that partition suit had every right to file an application to get injunction, if at all he was having a good case for getting such relief of injunction, but he did not do so. His intention was that pending adjudication in the partition suit, status-quo should be maintained and in such a case instead of filing this bare suit for injunction, the Plaintiff herein as Defendant therein could have filed an I.A. in the said partition suit seeking injunction. The Plaintiff herein wrongly filed the present suit, which, in my opinion was not at all maintainable and the trial Court erroneously decreed the suit instead of driving the Appellant/Plaintiff, at the time itself to seek his remedy in the then pending suit O.S. No. 11 of 2001. The appellate Court, of course, considered some other point, namely, the dismissal of the very partition suit itself and even then its ultimate decision in allowing the appeal and dismissing the present original suit cannot be found fault with.
It is a trite proposition of law that in a partition suit, the Defendants are Plaintiffs and vice versa. As such, the partition suit is entirely on a different footing.
I would also incidentally like to point out that even if the partition suit instituted by one of the co-owners was dismissed for default, that it does not mean that the other co-sharers are having no right to file a separate suit for partition, as till the effecting of the partition, the cause of action would be deemed to be a continuing one. Hence, I am of the considered view that the present second appeal is not maintainable and for that matter, the original suit itself was a misconceived one. Accordingly, the substantial question of law is answered and I make it clear that it is open for the Appellant/ Plaintiff to seek his remedy in the way known to law as the mere filing of this
In the result, the second appeal is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.