IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.09.2009 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU A.No.2910 of 2009 in C.S.No.457 of 2009 ORDER : This application is filed by the applicant/first defendant under Order 7 Rule 11 C.P.C., for rejecting the plaint in C.S.No.457 of 2009. 2. The first respondent is the plaintiff. The suit is filed by the first respondent/plaintiff for a declaration that the sale deed No.1511/03 dated 31.03.03 executed by the second defendant on 31.03.03 is null and void and for a mandatory injunction directing the first defendant to demolish and close the 735 Sq.Ft. of unauthorised construction put up by the first defendant in the basement morefully described in the schedule 'B' and for recovery of possession and directing the first defendant to hand over the possession of the approved basementmeasuring 415 Sq.ft., described in the schedule 'C'. 3. The suit is filed by the plaintiff, who are an Association of flat owners of Ishwarya Apartments, situate at No.48, Rukmani Road, Kalakshetra Colony, Besant Nagar, Chennai -90 represented by its authorised agent and Secretary. The suit was admitted on 25.05.2009. 4. Pending the suit, O.A.No.562 and 577 of 2009 was filed. When the matter came up on 27.05.2009, this Court after recording the statement of the respondents that the construction was completely over, granted an injunction from putting up further constructions. Subsequently when the matter came up on 11.06.2009, it was recorded that the basement should not be used for any commercial purpose in the interest of the residents of the association of flat owners until further orders. The statement of the counsel for the respondent was recorded that the respondents will not let out the basement for any commercial purpose. In the meanwhile, the first defendant has taken out this application for rejecting the plaint. 5. It is the case of the plaintiff that the Association comprised of nine owners, who are owning flats in the Ishwarya Apartments. In paragraph 4 of the plaint, they have given the built up area as well as the undivided share in the land. The property in which the flats were built up at 48, Rukmani Road, belonged to the second defendant. Each of the nine members of the Association purchased 442 sq.ft of undivided share out of the entire land of 4008 sq.ft from the third defendant. Through the first purchasers, they have registered sale deeds in their favour executed on various dates between 2001 to 2003. 6. Nine members of the Association entered into separate and individual agreements with the first defendant for construction of their respective apartment in the property, in accordance with the terms, conditions and specifications of their respective agreements. The members had also paid all the monies as agreed by them to the first defendant, whereupon, the first defendant completed the construction of the apartment along with the construction in the fourth floor and had also applied for regularisation of the additions for the fourth floor, which are pending before the competent authority. 7. The first defendant after completing the construction and receiving the entire agreed amounts from all the nine members of the Association handed over possession of the flats to the respective owners. The first defendant had also purchased an adjoining property, measuring about 1600 sq.ft on the western side of the property and put up a car parking in the ground floor and an office building on the first floor. The first defendant thereupon informed the members of the Association that they could buy individual car parking at an additional of Rs.1,00,000/- each and requested that the first defendant may be allowed to use the passage on the western side of the apartment to park one of their vehicles in the additional car parking till the first defendant makes an alternative arrangement for parking their vehicle on their premises. Considering the additional car parking facility, which would decongest the passage on the western side of the apartment, the members purchased the additional car parking at additional cost of Rs.1,00,000/- each and allowed the first defendant to only use without any right or title, to park one of the first defendant's vehicles in the additional parking on the western side of the apartment. The permission was given to the first defendant only for interim convenience till he made alternative arrangement and it was not an absolute right. 8. As per the building plan approved by CMDA, the first defendant put up the basement, which is meant to be specifically used as generator room. After handing over possession of the completed flats to the members of the association, the first defendant requested the plaintiff to permit them to use the basement for storing their materials. On humanitarian consideration, the members allowed the first defendant to use the basement for storing their materials. 9. The third defendant is the Power of Attorney of the second defendant. The first defendant with the intention of claiming ownership of the entire basement and to make their unlawful gains had colluded and connived with the third defendant and by taking advantage of the permission given to store their materials and to park one of their vehicles, they made preparations to achieve their unlawful ends by stealthily putting up construction of 1150 sq.ft instead of the permitted 415 sq.ft of basement area. The first defendant never made his intentions known and they had joined the association by paying subscription of a monthly maintenance of Rs.5,000/-. It was stated that the construction of 1150 sq.ft instead of 415 sq.ft in the basement is against the permitted and approved plan and is also illegal. 10. If the total 4008 sq.ft (1.67 grounds) is taken into account, it leaves out only 30 sq.ft of unaccounted area taking into account after the undivided shares purchased by the members of the plaintiff association. During February 2005, the first defendant did not remove their materials stored at the basement. Therefore, a letter was sent to them to clear the basement. In March 2007, the members noticed unusual activities in the basement and they came to know that the first defendant was using it as a commercial establishment. 11. Therefore, some of the members of the association filed a civil suit in O.S.No.2884 of 2007 before the City Civil Court, Chennai seeking for a mandatory injunction, directing the first defendant to remove their materials from the basement and to hand over the possession to them. But the first defendant stealthily avoided to inform the members about the unlawful sale deed executed in their favour by the third defendant. It came to their knowledge only when the first defendant filed his written statement in that suit. 12. The VI Assistant City Civil Court which heard the matter found that only five members of the association were made as plaintiffs and the plaintiff's Association was not registered at the time of the filing of the suit and proper prayer has not been made with proper Court fee and hence dismissed the suit on 18.04.2009 on technical grounds of not filing a suit for recovery of possession with proper court fee, non joinder of necessary parties and the suit not being filed by a registered association. Therefore, the plaintiff association has come forward to file the present suit with proper prayer and had sought for interim orders. 13. The first and third defendants have filed the present application to reject the plaint. It was stated by them in the affidavit filed in support of the Judge's summons dated 25.06.2009 that the suit in C.S.No.457 of 2009 is barred by law as the earlier suit in O.S.No.2884 of 2007 was filed by the first five persons. The first defendant claims that he was the co-owner of the land at Plot No.48, Rukmani Road, Kalakshetra Colony, Chennai -90 and having purchased the same under a Deed of absolute sale dated 31.03.2003 which was registered as Document No.1611 of 2003 with the District Registrar (South), Chennai. The entire basement belonged to the first defendant as their share in the constructed area in the apartment complex, in proportion to their ownership of the undivided share in the land and they are the owner of 333 sq.ft of undivided share in the land. The first defendant had also raised the ground of non-joinder of parties. Out of 9 owners of the flats, only 5 of them have filed the suit and the suit was not filed in a representative capacity. The suit was dismissed by the City Civil Court by a judgment and decree dated 18.04.2009. Another objection raised by them was that no proper court fee was paid by plaintiff. The Trial Judge in the civil suit had rendered a finding in favour of the first defendant that he was a co-owner. Even during the pendency of the suit, the plaintiff association was duly registered under the provisions of Tamil Nadu Societies Regisration Act and it also filed an application to implead itself. But its impleading petition was rejected. The C.R.P. filed against the same was also rejected by this Court. Therefore, having failed in their attempt before the Civil Court, they cannot institute the present suit. 14. The defendants placed reliance upon Explanation 6 to Section 11 CPC, wherein it was stated that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Therefore, having filed the suit on behalf of all and allowing it to be dismissed, the present suit is barred by res judicata. 15. When the plaintiffs, at that time stated that it was not a registered association, they were not truthful. Even at the time of filing of the suit before the City Civil Court, there was a registered association. Since the earlier suit was filed in a representative capacity, the second suit is not maintainable. It was established that the first defendant being a co-owner and owns the basement, and as he had paid subscription to the owners association, they are estopped from contending that they are not the owners. The first defendant having a registered sale deed cannot be dislodged. If the plaintiffs are aware of the sale deed, they should pleaded for setting aside the sale in the earlier suit itself. By not doing the same, the present action is barred under Order II Rule 2 CPC. It was on these lines, the present application was filed for rejecting the plaint. 16. Heard the arguments of Mr.R.Parthasarathy, learned counsel for the applicant/first defendant and Mr.B.Lenin for M/s.Lenin and Bagya, learned counsel for the respondent/plaintiff. 17. Mr.R.Parthasarathy, learned counsel for the applicant/first defendant placed reliance upon the following judgments: i) Sonachalam Pillai v. Kumaravelu Chettiar AIR 1928 Mad 445) ii) Talluri Venkata Seshayya and Others v. Thadikonda Kotiswara Rao and others (AIR 1937 PC 1) iii)Sunderbai v. Devaji Shankar Deshpande (AIR 1954 SC 82) iv)Kothandarama Gramani v. Sellammal and Others (1959 [II] MLJ 218) v) K.Manathunainatha Desikar v. Sundaralingam & Others (1970 [II] MLJ 156) vi)Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu ((1977) 2 SCC 181) vii)K.K.Modi v. K.N.Modi and Others ((1998) 3 SCC 573) viii)Saroja v. Chinnusamy and Another ((2007) 8 SCC 329) 18. In the first decision (Sonachalam Pillai v. Kumaravelu Chettiar), it was held that even if the cause title did not describe the suit as being brought in a representative capacity, one has to see whether the plaintiffs did in substance bring the suit in a representative character or capacity and whether the defendants contested the suit on the larger question affecting the plaintiffs on record as well as others whom they were representing. 19. In the present case, the previous suit was filed by the five plaintiffs and there is no averment in the plaint to show that it was filed on behalf of others who were not party to the suit. The suit was filed under Section 38(3) of the Specific Relief Act r/w Order 7 Rule 1. No application was filed under Order 1 Rule 8 CPC to treat the suit in a representative capacity. In fact in the written statement filed by the applicant/defendant, in Paragraph 4(a), it was stated that five out of nine owners alone have filed the suit and the others have not joined in the suit and therefore, the suit was liable to be rejected on grounds of non-joinder. Hence, reliance placed upon the first judgment is misconceived. 20. The second decision (Talluri Venkata Seshayya and Others v. Thadikonda Kotiswara Rao and others) is cited for the purpose of showing that explanation VI to Section 11 CPC is mandatory and the suit in question is similar to the one brought previously. Since no evidence in the suit in question as to want of bona fides or collusion on the part of the plaintiffs in the previous suit. The findings in the previous suit is binding on the plaintiff. 21. The third judgment cited by the petitioner is a decision rendered by the Supreme Court in Sunderbai v. Devaji Shankar Deshpande, and it was pressed into service for the purpose of showing that even if plea of res judicata is not accepted, Estoppel as a rule of evidence enshrined in Section 115 of the Evidence Act will consequently apply. For that purpose, the following passage found in Paragraph 14 was pressed into service: "14. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Evidence Act which lays down that when one person has by his declaration act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. This is the rule of estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of res judicata. The estoppel in this case was pleaded by Defendant 1 in the manner following in para 8 of her written statement: "The plaintiff's claim is also barred by estoppel as he received Rs.8000 as a consideration for accepting the terms of compromise from the defendant. As the compromise was lawful and as he induced the defendant to pay Rs.8000 on the understanding that Gangabai lost her right to adopt and he would never raise any dispute, he is estopped from contending that Gangabai had not lost her right to adopt". But the question here will be for the purpose of pressing into service, estoppel there must be pleadings between the parties and contest must be there on the said issue. It cannot be decided solely on the basis of an application under Order 7 Rule 11. 22. The learned counsel relied on the fourth decision which is from this Court in Kothandarama Gramani v. Sellammal and Others, for the purpose of showing that even if there was gross negligence in the conduct of the previous suit, the subsequent suit will not take out of the bar of res judicata contained in the mandatory provisions of Section 11 CPC and that the present respondent/plaintiff never pleaded that there was any fraud or want of bona fides in not pursuing the earlier suit. 23. The learned counsel for the applicant/first defendant relied upon the Full Bench decision of this Court (K.Manathunainatha Desikar v. Sundaralingam & Others), relating to interpretation of Explanation VI to Section 11 CPC. It is contended that when persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Res judicata binds parties and also privies, persons who claim under parties on record. A person not actually claiming under a party to the former suit but who was represented by a party in the former suit in respect of a right claimed in common for himself, by virtue of Explanation VI to Section 11 will be deemed to be a party. Order 1, Rule 8 of CPC, though may be labelled as a representative suit, but they do not exhaust the classes of representative suits. It is not clear as to how the said decision will apply to the present case, wherein a wider relief is claimed in the suit and it is the Association which had filed the present suit. 24.The sixth decision (Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu) is again for the purpose of pressing into service underlining principles under Section 11 CPC. It was stated that the principle embodied in the statute is not so much the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on the two maxims: it concerns the State that thee be an end to law suit; and secondly, no man should be vexed twice over for the same cause. Explanation VI to Section 11 is not confined to cases covered by Order 1 Rule 8, but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves. One of the tests for applying the principles underlined in Section 11 is whether non-applicability of the doctrine of res judica results in inconsistent decrees. 25. The seventh decision [K.K.Modi v. K.N.Modi and Others] is to show that it will be an abuse of the process of the Court and contrary to justice and public policy for a party to litigate the same issue, which has already been tried and decided earlier against him. Reliance was placed upon the following passage found in Paragraph 44, which is as follows: "44. 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 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 whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding." 26. The last decision (Saroja v. Chinnusamy and Another), is again in support of the bar of res judicata. It is contended that party in subsequent proceeding though not a party in the former proceeding, litigating the subsequent proceeding on basis of the title acquired through a party in the former proceeding, in such cases the successor-in-title would be bound by the result of the earlier proceeding and to the extent the predecessor-in-title would have been bound. 27. Apart from this line of attack, the learned counsel for the applicant/first defendant placed reliance upon Order 2 Rule 2 CPC and contended that having come to know that the applicant/first defendant has proprietorial interest in property and had acquired the property through a sale deed, the plaintiff ought to have raised these issues in the previous suit itself. Hence bar under Order 2 Rule 2 will apply. For this purpose, he placed reliance upon two decisions of the Supreme Court in (i) S.Nazeer Ahmed v. State Bank of Mysore and Others reported in (2007) 11 SCC 75 and (ii) Dadu Dayalu Mahasabha,Jaipur (Trust) v. Mahant Ram Niwas and another reported in (2008) 11 SCC 753. 28. In this context, Explanation IV to Section 11 of the CPC was considered in Paragraph 25, which is as follows: "25.Explanation IV of Section 11 of the Code extends the principle of res judicata stating that the reliefs which could have been or ought to have been prayed for even if it was not prayed for would operate as res judicata. Section 12 thereof bars filing of such suit at the instance of a person who is found to be otherwise bound by the decision in the earlier round of litigation and in a case where the principle of res judicata shall apply." Therefore, in view of the above, it was argued that on all counts, the plaint is liable to be rejected. 29. Per contra, Mr.B.Lenin, learned counsel for the respondent/plaintiff submitted that the previous suit was filed by the five flat owners in their individual capacity for the purpose of removal of articles stored in the basement and for handing over the possession. It is the applicant/first defendant who had raised objection that the suit was not filed in a representative capacity and therefore, no relief can be claimed for the recovery of possession. It is also disclosed that they are the true owners of a portion in the property. 30. The City Civil Court vide its judgment and decree dated 18.04.2009 in O.S.No.2884 of 2007 had framed five issues and answered as follows:- i)on the first issue relating to non-joinder of parties, the Court found in favour of the defendant. ii) On the second issue relating to permanent injunction, the Court found that since they have acquired the property by way of a sale deed, the question of grant of permanent injunction will not arise. iii)On the third issue regarding payment of court fee, the Court found that there was a deficit court fee. iv)on the fifth issue regarding a direction to provide the parent documents regarding the property by the defendant, the Court negatived the claim of the plaintiffs. 31. It was submitted that in the present case, the plaintiff had laid the suit in a representative capacity and having come to know about the sale deed dated 31.03.2007 executed in favour of the applicant/defendant, they wanted to set aside it as null and void and for recovery of possession was also sought including a prayer for mandatory injunction. Therefore, there is no question of res judicata will arise between the two suits. 32. He placed reliance upon the judgment of the Supreme Court in State of Maharashtra v. National Construction Company reported in (1996) 1 SCC 735 and reliance was placed upon the following passages found in Paragraphs 9, 10 and 11, which is as follows: "9. We may now deal with the issue involving Order 2 Rule 2 of the Code which reads as under: "2.Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3)Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or nay of such reliefs; but if he