Madras High Court
K.K.Swaminathan vs Srinivasagam on 10 October, 2003
 In the High Court of Judicature at Madras
Dated: 10/10/2003
Coram
The Hon'ble Mrs. Justice R.BANUMATHI
C.R.P.(P.D.) No. 1147 of 2001
K.K.Swaminathan                            ..Petitioner
-Vs-
Srinivasagam                                ..Respondent
        Civil Revision Petition under section  115  of  Civil  Procedure  Code
filed  against  the  Order  dated  16.03.2001  in  I.A.No.98/2001 in O.S.No.24
73/1996 on the file of Additional District Munsif Court, Coimbatore.
!For Petitioner :  Mr.A.Venkatesan
^For Respondent :  Ms.M.B.Dominique for Mr.P.Duraisamy
:ORDER
This Revision Petition is directed against the order of II Additional District Munsif, Coimbatore in
I.A.No.98/2001 in O.S.No.2473/1996 (dated 16.03.2001) dismissing the Application to send the
Promissory Note dated 24.11.1983 to Handwriting Expert for the purpose of comparison of the
signature thereon with the admitted signatures in the presence of the Officer of the Court.
2. This Revision Petition arises out of the following common grounds:-
(i) O.S.No.352/1986 - II Additional Subordinate Judge, Coimbatore: The Respondent / Defendant
filed this Suit for recovery of Rs.1 5,672/= on Promissory Note for Rs.12,000/= (dated 24.11.1983).
Revision Petitioner contested the said suit. In the said suit, the main contention raised by the
Revision Petitioner was denial of execution of the said Promissory Note. In the said suit, Revision
Petitioner had filed Application in I.A.110/1987 for sending the Suit Promissory Note to obtain the
opinion of the Handwriting Expert and the same was dismissed. After full trial, O.S.No.352/1986
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was decreed.
(ii) A.S.No.38/1987:-
Aggrieved over the decreeing of the suit, the Revision Petitioner has filed this Appeal before District
Judge, Coimbatore. The Appeal was heard on merits. Confirming the judgment and decree of the
trial court in O.S.No.352/1986, A.S.No.38/1987 was dismissed on 24.12 .1988. As against the
concurrent findings of courts below, Revision Petitioner had also filed a Second Appeal. Finding that
no substantial question of law is involved, the Second Appeal was dismissed even in the admission
stage.
(iii) E.P.No.162 of 1988:
O.S.352/1986 Respondent has filed this Execution Petition to execute the decree passed in
O.S.No.352/1986 and the Execution Petition was posted on 12.10.1988. While the Execution
Petition was so pending, Revision Petitioner had filed the present suit O.S.No.656/1988 on the file
of Sub Court, Coimbatore (re-numbered as O.S.No.2473/1996 - DMC, Coimbatore).
(iv) O.S.No.656/1988 - Sub Court, Coimbatore (re-numbered as O.S.No.2473/1996 - District Munsif
Court, Coimbatore) After being unsuccessful in all the Forums, Revision Petitioner had re-opened
the entire issues re-agitating the matter, attacking the Suit Promissory Note and the decree passed
on merits in O.S.No.352/1986. The present suit O.S.No.2473/1996 originally filed in the Sub Court,
Coimbatore in O.S.No.656/1988 is for the cancellation of the decree obtained by the Respondent in
O.S.No.352/1986 as having been obtained fraudulently by the use of a false document.
3. Case of Revision Petitioner / Plaintiff is that he had borrowed a sum of Rs.3,000/= from the
Defendant on 16.06.1981, for which the Respondent had taken his signatures in four stamped blank
papers from the Revision Petitioner and the Respondent paid only a cash of Rs.2,7 00/= deducting
advance interest of Rs.300/=. Towards discharge the Promissory Note debt, Revision Petitioner had
totally paid Rs.7,600/=. Respondent had not only refused to pass receipt, but also inspite of
repeated demands failed to return the Promissory Note executed by the Revision Petitioner. The
Promissory Note for Rs.12,000/= filed in O.S.No.352/1986 is a concocted false document. Further
case of the Revision Petitioner is that the Respondent made use of the false document in
O.S.No.352/1986 and fraudulently obtained the decree thereon and the Plaintiff is entitled to have
the matter re-opened under section 44 of the Evidence Act and is entitled to get a declaration that
the decree in O.S.No.352/1986 is null and void and not binding upon the Plaintiff.
4. Respondent is resisting the suit by filing the written statement contending that the Suit is barred
by Res Judicata and that the decree in O.S.No.352/1986 operates as Res Judicata. When the
contested decree in O.S.No.352/1986 was confirmed by the Appellate Court / District Judge,
Coimbatore in A.S.No.38/1987, Revision Petitioner having exhausted his remedies has filed the
present suit for the purpose of harassing the Respondent. The present suit, which is highly
vexatious, is nothing but abuse of process of the court and is absolutely barred by Res Judicata.
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5. When the Suit was taken up for trial, after the examination of the Respondent was completed,
Revision Petitioner had filed I.A.No.98/2001 on the ground that the Promissory Note in
O.S.No.352/1986 is a false and concocted document. According to him, the Promissory Note, which
was the subject matter of the dispute in O.S.No.352/1986, is to be further examined by the
Handwriting Expert by comparing with the admitted signatures in the presence of the Officer of the
Court and the opinion of the Handwriting Expert is very much essential to prove his case that the
contested decree in O.S.No.352/1986 was obtained by playing fraud upon the Court.
6. Respondent has filed the counter statement referring to the filing of similar Application in
I.A.No.110/1987 in O.S.No.352/1986 under section 73 of Indian Evidence Act. I.A.No.110/1987 was
dismissed. Against which, the Revision Petitioner had not preferred any Appeal or Revision before
the High Court and the dismissal of the Application I.A.No.110/1987 has reached finality. The
inconsistent stand adopted by the Revision Petitioner in the plaint averments is also pointed out in
the counter statement.
7. Submitting that the decree in O.S.No.352/1986 was fraudulently obtained from the Court and to
substantiate the same, an opportunity to be given to the Revision Petitioner to prove that the
Promissory Note is a forged one, which could be established only by obtaining the opinion of the
Handwriting Expert, who could compare the disputed signature with the admitted signatures.
Contending that such a suit for setting aside the decree is maintainable under section 44 of the
Indian Evidence Act, the learned counsel relied upon AIR 1995 SC 1440 in support of his contention
that it is open to the party to the suit to avoid the decree if proved to have been obtained by fraud or
collusion. It is the further contention of the Revision Petitioner that order in the earlier interlocutory
Application 110/1987 would not operate as Res Judicata. Submitting that it is dangerous for the
Court itself to compare the disputed signature, it is contended that obtaining of the opinion of the
Handwriting Expert is very much essential, which the Revision Petitioner was deprived of the
opportunity in the earlier suit by the dismissal of the Application in I.A.No.110/1987.
8. Countering the arguments and seriously assailing the very maintainability of the suit
O.S.No.2473/1996, the learned counsel for the Respondent / Defendant submitted that the
dismissal of the Application in I.A.No.110/1987 and decreeing of the suit in O.S.No.352/1986 have
given quietus to the matter. It is further submitted, when the dispute regarding the Promissory Note
has reached the finality in the earlier litigation, the same cannot be re-agitated by filing another
Application. Submitting that the fraud committed upon the Court is not elaborated in the plaint and
that the suit is not maintainable, the learned counsel further submitted that the present suit in
reagitating the earlier contested matter is clearly barred by Res Judicata. It is further submitted that
such re-litigation is nothing but abuse of process of the court, which needs to be halted.
9. Upon consideration of the submissions of both sides, the available materials and grounds urged in
the Memorandum of Revision, in my considered view, the following points arise for determination
in this Revision. (1) When the dispute regarding the validity of execution of the Promissory Note has
reached finality in the earlier contested proceedings in O.S.No.352/1986 and A.S.No.38/1987, can
the Revision Petitioner / Plaintiff re-agitate the same raising the same point by filing another suit
under section 44 of the Indian Evidence Act ?
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(2) Can the contested decree in O.S.No.352/1986, confirmed by the First Appellate Court, be
allowed to be re-agitated on the ground that it was obtained fraudulently by the use of a false
document ?
(3) Is any fraud as contemplated under Section 44 of the Indian Evidence Act is made out ?
10. We may straightaway point out that the present Application I.A.98/2001 and the suit
O.S.No.2473/1996 are nothing but re-agitating the entire points, which have already reached finality
in the earlier round of litigation both on (i) adjudication upon the suit ; (ii) adjudication of the
Application. O.S.No.352/1986 was determined after full trial. Revision Petitioner / Plaintiff herein
contested the said suit raising the same point that the Promissory Note dated 24.11.198 3 is a forged
and fabricated one. The Courts have gone into that question and that question was adjudicated upon
and the suit O.S.No.352/1 986 was decreed after full contest. In that suit, Revision Petitioner herein
had filed I.A.No.110/1987 for sending the Promissory Note to Handwriting Expert and the same was
dismissed; against which, Revision Petitioner / Plaintiff has not preferred any Revision. Thus, in the
suit O.S.No.352/1986, genuineness or otherwise of the Promissory note was directly and
substantially in issue, which was adjudicated upon and determined.
11. The validity or genuineness of execution of the Promissory Note was directly and substantially in
issue in O.S.No.352/1986. The contested decree of the trial court was confirmed by the First
Appellate Court in A.S.No.38/1987. The Second Appeal preferred against the concurrent findings of
the courts below was dismissed in the admission stage. Now, the Revision Petitioner / Plaintiff has
sought to reopen the entire issue, which has reached the finality in the earlier round of litigation.
12. In I.A.No.98/2001, Revision Petitioner has sought for the document to be examined by the
Handwriting Expert in the presence of the Court Officer. As discussed earlier, Courts of competent
jurisdiction have already considered the validity and genuineness of execution of the Promissory
Note and adjudicated and conclusively determined the same. The contention of the Revision
Petitioner that the Promissory Note is a forged and fraudulent one is not well substantiated even by
the plaint averments. In para (3) of the plaint, Revision Petitioner has stated that his signatures
were obtained in four stamped blank forms and utilising the same, Respondent / Defendant had
concocted the Promissory Note. While in para (4) of the plaint, the Revision Petitioner has averred
the execution of the Promissory Note and that he had repaid the same and the Respondent has not
returned the Promissory Note. On the execution of the Promissory Note, the pleadings in the plaint
are only self contradictory.
13. The present suit O.S.2473/1996 is filed for the relief of " Cancellation of the decree in
O.S.No.352/1986 as having been obtained fraudulently by the use of a false document". Revision
Petitioner alleges fraud mainly on the ground that the decree was obtained on the basis of the
Promissory Note, which, according to him, is a concocted false document. As noted earlier,
admitting borrowing of Rs.3,000/= from the Respondent and execution of a Promissory Note for
Rs.3,000/= in favour of the Respondent, in para (3) of the plaint, Revision Petitioner himself had
admitted that his signatures were obtained in four blank papers apart from the Promissory Note.
Para (4) of the Plaint refers to the payment of the debt totalling Rs.7,600/= and that the Respondent
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has not returned the Promissory Note. From the plaint averments, two things emerge-
(i) borrowal of the amount and execution of the Promissory Note;
and
(ii) that the Revision Petitioner himself had re-paid the amount and Respondent had not returned
the Promissory Note.
The above defence was raised in O.S.No.352/1986, which was finally adjudicated rejecting the
defence, and the suit was decreed confirmed by the Appellate Court.
14. It passes one's comprehension as to how could the contested decree confirmed by the Appellate
Court be sought to be set aside on the ground of forgery or fraud played upon the Court. Section 17
of the Indian Contract Act defines 'fraud' as under:
"Fraud" means and includes any of the following acts committed by a party to a contract, or with his
connivance, or by his agents, with intent to deceive another party thereto or his agent, or to induce
him to enter into the contract:
(1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it; (4) any other act fitted to
deceive;
(5) any such act or omission as the law specially declares to be fraudulent".
15. No such instance of fraud is averred or proved by the Revision Petitioner. In the plaint, the
Revision Petitioner has not elaborated the details of fraud played upon the Court. In the cause of
action, the details of fraud not shown making out a case of fraud. The Revision Petitioner has also
not stated as to when and how he detected the fraud played upon the Court in obtaining the decree
in O.S.No.352/19 86. If really any deception was played upon the Court, the same could have been
brought to the notice of the Court either in the First Appellate Court or in the Second Appellate
stage. The learned counsel for the Revision Petitioner has submitted that the Revision Petitioner has
filed Copy Application for I.A.No.110/1987 and that the same was returned as no such petition was
filed in O.S.352/1986. In the impugned order, the learned District Munsif has clearly referred to the
earlier Application in I.A.No.110/1987 and the order passed thereon. While so, the return on the
Copy application as to the nonavailability of the Petition in I.A.110/1987 may not be correct. Even if
that be so, suitable direction could be issued to the concerned court to take appropriate action on
the non-availability of the petition and orders in I.A.110/1987. That need not in any way detain us
from considering the matter. In my view, as against the contested decree, confirmed by the First
Appellate Court, no suit could be filed under section 44 of Indian Evidence Act for cancellation of
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the decree.
16. Section 44 of the Indian Evidence Act lays down "when one of the parties to a suit or other
proceeding tenders, or has put in evidence, a judgment, order or decree under ss 40, 41 and 42 , it is
open to the party against whom it is offered to avoid its effect on any of the three grounds specified
in the section, without having it set aside, viz.,
(a) the incompetency or want of jurisdiction of the court by which the decree was passed;
(b) that the judgment was obtained through fraud; or 8 that it was obtained by
collusion"
17. Sections 40 - 44 deal with the relevancy of judgments of courts of justice. Section 40 enacts that
the existence of any judgment, order or decree which by the law, that is, by the provisions of the
Civil Procedure Code or Criminal Procedure code (i.e. judgments in support of a plea of Res
Judicata, in civil case or of autre fois acquit or autre fois convict, in criminal cases, constitutes Res
Judicata, that is, bars a second suit or trial is a relevant fact.
18. Section 41 deals with what is usually called judgments in rem, that is, judgments which are
conclusive not only against parties to them, but against all the world. The section does not however,
give any definition of the term judgment in rem, but only enumerates four classes of judgments.
19. Section 42 deals with the admissibility of judgments relating to matters of public nature, though
not between the parties or privies, without making any distinction between the words "public" and "
general".
20. Section 43 says that judgments other than those mentioned in ss 40-42 are irrelevant unless the
existence of such judgments is a fact in issue or is relevant under some other provisions of the Act,
eg.under ss 8,11,13,54 Expl. (2) & C.
21. Section 44 says that when any judgment, order or decree has been received under ss 40-42, the
adverse party may show that it was obtained by fraud or was delivered by a court without
jurisdiction. Judgments vitiated by fraud can therefore be challenged under s 44 without brining a
suit to set them aside.
22. By a careful reading of Sections 40 - 44 of Indian Evidence Act, the first essential requirement is
that the judgment ought to have been tendered or put in evidence under sections 40, 41, 42, 43 of
Evidence Act. In the case in hand, the judgment in O.S.352/1986 is not tendered in evidence as
contemplated under section 44, in any of the situations arising under sections 40 to 42. The suit was
decreed after full contest and the same was produced only in execution of the decree.
23. Fraud or collusion as contemplated under S.44:
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The nature and kind of fraud contemplated under section 44 must be actual and positive fraud. The
decree must have been fraudulently obtained keeping the adversary and the Court in ignorance of
the real facts of the case. In my view, fraud as laid down in section 44 refers to the fraud practised
against the court by anyone of the parties or it may also imply a fraud against any parties to the
proceedings. In a case of contested decree fought out till the Appellate Court, where is the question
of fraud, that too, actual positive fraud played against the Revision Petitioner ? Absolutely there
could be none.
24. What is contemplated under Section 44 of Indian Evidence Act is "actual positive fraud". In this
regard, we may usefully refer to the following passage in SARKAR'S LAW OF EVIDENCE, 14TH
EDITION Page No.763: "It is now well established that a decree cannot be set aside as fraudulent on
the allegation that it was obtained by perjured evidence, or that the claim was false. It must be
shown that Plaintiff was prevented by some fraud or contrivance from appearing and placing his
case before the court, i.e.the alleged fraud must be an extrinsic act. JAMES L.J, in FLOWER ..vs..
LLOYD, LR 10 Ch D 327, observed as follows:-
"Where is litigation to end, if a judgment obtained in an action fought out adversely between two
litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury
had been committed in the first action or that false answers had been given to interrogatories, or a
misleading production of documents, or of a machine, or of a process had been given? There are
hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be
on one side or other wilfully and corruptly perjured. In this case, if the plaintiffs had sustained on
this appeal the judgment in their favour, the present defendants in their turn, might bring a fresh
action to set aside that judgment on the ground of perjury of the principal witness and subornation
of perjury; and so the parties might go on alternately ad infinitum....... Perjuries, falsehoods, frauds,
when detected must be punished and punished severely, but in their desire to prevent parties
litigant from obtaining any benefit from such foul means, the Court must not forget the evils which
may arise from opening such new sources of litigation, amongst such evils not the least being that it
would be certain to multiply indefinitely the mass of those every perjuries, falsehoods and frauds" (
Emphasis added).
25. In the Courts of Law, thousands of actions / suits are tried every day / every month. On the
issues and the evidence let in, several matters are adjudicated upon and decrees are passed. If all
those unsuccessful litigants are to allege that the judgment and decree passed against them is
fraudulently obtained on forged document or on perjury, there would be no finality of litigation. If
such suits are allowed to be filed, the court proceeding to hear the same would amount to
Subversion of Judicial System by the onslaught from within the system. Unless such actions are
stopped and sternly dealt with, a time would come where almost all the unsuccessful litigants would
come to the Court alleging that the decree was obtained against them fraudulently. The fraud
contemplated under section 44 is entirely different. The actual positive fraud contemplated under
Sec.44 is not at all established. The decree in O.S.352/1986 earlier fought out by the parties is not
vitiated by fraud as contemplated under section 44 of Indian Evidence Act. Not only the suit is
barred by Res Judicata but the suit O.S.2473/1996 is sheer abuse of process of the Court.
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26. The learned counsel for the Revision Petitioner has relied upon AIR 1995 SC 1440 in support of
his contention that it is always open to the Plaintiff to invoke section 44 of Evidence Act to set aside
the earlier decree even if it is a contested one. AIR 1995 SC 1440 refers to the suit filed by the minor
plaintiff represented by the next friend. In that case, inference of fraud or collusion was drawn on
account of the proved negligence or gross negligence of the next friend and that it was held "it would
be permissible for a minor to avoid judgment or decree passed in the earlier proceedings by
invoking section 44". The factual situation arising in that case is entirely on a different footing from
the case in hand, where the Plaintiff himself was a party and was strongly agitating the suit
O.S.352/1986.
27. One of the most abuse of process of the court is re-litigation. It is an abuse of process of the court
and contrary to justice to re-litigate the same issue, which has already been tried and decided earlier
against him. If the same issue is sought to be re-agitated by frivolous and vexatious suits, it is not as
if the Court is powerless to stop the proceedings when it is brought to its notice. O.S.2473 /1996 is
sheer abuse of process of the court re-agitating the same issue, in my view, should not be allowed to
continue.
28. Contending that the suit could be filed invoking Section 44 since no opportunity was available to
the Plaintiff in the earlier proceedings to prove to the Court that the Promissory Note is a false and
concocted document, further contention of the Plaintiff that such an opportunity was not available
to the Plaintiff since I.A.110/1987 was dismissed without considering on merits. From the available
materials, the nature of disposal of I.A.110/1987 is not known. Without accepting, for the sake of
arguments, even if we assume that no opportunity was afforded to the Plaintiff in I.A.110/1987, the
same could have been very well brought to the notice of the First Appellate Court and necessary
steps could have been taken to substantiate that contention. If not in the First Appeal, at least in the
Second Appellate stage, the same could have been brought to the notice of the court. In fact, such an
opportunity was not afforded to the Plaintiff is nowhere alleged in the present plaint O.S.2473/1996
also.
29. The present suit O.S.2473/1996 was filed with the only intention to re-agitate the same issues,
which were substantially in issue in O.S.352/1986. Even the present Application I.A.98/2001 was
filed only when the evidence of Respondent / Defendant was completed. From the stage in which
I.A.98/2001 was filed and from the chequered career of the litigation, it is obvious that the only
intention of Revision Petitioner / Plaintiff seems to be that would not allow the Respondent to enjoy
the fruits of the decree. The present suit is not only hopelessly barred by Res Judicata but also
amounts to Subversion of Judicial System.
30. In cases of this nature, it is not as if the Court is powerless or its hands are tied merely because
the matter comes to the notice of the court in the revisional Jurisdiction under Sec.115 CPC. The
investiture of power u/s.115 CPC is of superintendence and visitorial....Not fettered to deal with such
situations. Where there is clear abuse of process of court, the Court has to view such conduct
seriously and the same is to be halted to save precious time of the public and the court being wasted.
In the recent decision of the Supreme Court reported in K.K.Modi ..vs.. K.N.Modi (1998) 3 SCC 573
elaborately considering the abuse of process of the Court, the Supreme Court has held that the Court
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has power to stop such frivolous and vexatious proceedings. The Supreme Court has only cautioned
that such power is to be exercised with circumspection. It is necessary to refer to the observations of
the Supreme Court, which are very much relevant for our purpose.
"42.Under Order 6 Rule 16, the Court may, at any state of the proceeding, Order to be struck out,
inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla
in his treatise on the Code of Civil Procedure, (15th Edn., Vol.II.P.1179, note 7) has stated that power
under clause 8 of Order 6, Rule 15, of the Code is confined to cases where the abuse of the process of
the Court is manifest from the pleadings; and that this power is unlike the power under Section 151
whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings
which are an abuse of their process. In the present case the High Court has held the suit to be an
abuse of the process of the Court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344)
explains the phrase "abuse of the process of the Court" thus:
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".
44. One of the examples 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 the 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 the 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 the public and the Court from being wasted.
Undoubtedly, it is a matter of the Court's discretion that has to be exercised with circumspection. It
is a jurisdiction which should be sparingly exercised only in special cases. The Court should also be
satisfied that there is no change of the suit succeeding.
45. In the case of Greenhalgh ..vs.. Mallard the Court had to consider different proceedings on the
same cause of action for conspiracy, but supported by different averments. The Court held that if the
plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction
before the Court, put his case in another way and say that he is relying on a new cause of action. In
such circumstances he can be met with the plea of Res Judicata or the statement or plaint may be
struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the
Court.
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46. In Mellkenny ..vs.. Chief Constable of West Midlands Police Force the Court of appeal in
England struck out the pleading on the ground that the action was in abuse of the process of the
Court since it raised an issue identical to that which had been finally determined at the plaintiffs'
earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the
ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because
it is an abuse for a party to relitigate a question or issue which has already been decided against him
even though the other party cannot satisfy the strict rule of Res Judicata or the requirement of issue
estoppel".
In my view, the above observation of the Supreme Court squarely applies to the case in hand. I find
that in the interest of the System, it is just and necessary that the suit O.S.2473/1996 is to be
ordered to be struck off.
31. With a view to prevent the Decree Holder from enjoying the fruits by taking delivery of
possession, placing reliance upon (1998)3 SCC 573 S.S.SUBRAMANI, J., in 1999-2 L.W.781 directed
the executing court to issue suitable direction to the police assistance without even waiting for any
formal application. The learned single Judge held, "Dehors Order 23, on the ground of public policy
and for administration of justice, such repeated attempts by litigant to thwart execution of decree
and attempt to reagitate the same matter should be prevented".
32. In the case reported in Smt.Patasibal and others ..vs.. Ratanlal (JT (1990) 3 SC 68), the Supreme
Court has held thus:-
"The trial should not proceed when there is no controversial issue but the trial Court failed to
perform its duty and proceeded to issue summons without carefully reading the plaint. Since the
plaint suffers from that fatal defect, the mere issuance of summons by the trial court did not require
that the trial should proceed even when no triable issue is shown to arise; permitting the
continuance of such a suit is tantamount to licensing frivolous and vexatious litigation, which
cannot be done. The Supreme Court has also held that it is not necessary to adopt the technical
course of directing the trial Court to make the consequential order of rejecting the plaint".(Emphasis
added) Thus, in the case in hand, to avoid any further delay in the conclusion of the vexatious suit,
the only practical course would be to order the plaint in O.S.2473/1996 to be struck off.
33. Be it under Article 227 of the Constitution of India or under section 115 CPC, the High Court has
general supervisory jurisdiction. That supervisory revisional jurisdiction of the High Court is the
residuary jurisdiction conferred on the High Court. Thus, exercising the supervisory jurisdiction
conferred on the High Court under section 115 CPC, it is just and necessary that the plaint in
O.S.2473/1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to
direct the Revision Petitioner to pay the costs of the suit to the Respondent.
34. For the reasons stated above, O.S.2473/1996 on the file of II Additional District Munsif Court,
Coimbatore is ordered to be struck off. Resultantly, O.S.2473/1996 stands dismissed. Revision
Petitioner / Plaintiff is directed to pay the suit costs to the Respondent.
K.K.Swaminathan vs Srinivasagam on 10 October, 2003
Indian Kanoon - http://indiankanoon.org/doc/601533/
10
35. Resultantly, this Revision Petition is also dismissed. There is no order as to costs. Revision
Petitioner / Plaintiff is directed to pay the suit costs to the Respondent / Defendant.
Index: Yes.
Internet: Yes.
gl To The II Additional District Munsif, Coimbatore.

K.K.Swaminathan vs Srinivasagam on 10 October, 2003
Indian Kanoon - http://indiankanoon.org/doc/601533/
11