IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-07-2009 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE R. SUBBIAH O.S.A.NOs.376 to 378 of 2007 OSA.No.376 of 2007 1. M. Somasundaram 2. S. Selvakumar .. Appellants Vs. 1. Mr.V. Srinivasan S/o. Vellaya Naidu 2. The District Collector-cum- Accommodation Controller, Singaravelar Maligai, Rajaji Salai, Chennai 600 001. .. Respondents OSA.No.377 of 2007 1. M. Somasundaram 2. S. Selvakumar .. Appellants Vs. 1. The District Collector-cum- Accommodation Controller, Singaravelar Maligai, Rajaji Salai, Chennai 600 001. 2. V. Srinivasan S/o. Vellaya Naidu 3. M/s. Rajalakshmi Properties, 44, Basin Bridge Road, Chennai 600 079. 4. Mrs. Kokila Charles Ebenezer, W/o. Late Charles Ebenezer https://hcservices.ecourts.gov.in/hcservices/ 5. Mrs. Sujatha Chandrasekar W/o. Chandrasekar 6. Abraham Sudhakar S/o. Late Charles Ebenezer 7. Mrs. Vijayalatha W/o. Daniel Gupta 8. R. Vincent Balasingh S/o. Late Vincent Balasingh 9. Samraj Prabhakar S/o. Late Vincent Balasingh 10. Mrs.V. Jayanthi W/o. Daniel Vedayanagam 11. Rev. Fr. C.S. Sundaresan S/o. Chella Jesudas Chetty 12. Mrs.E. Laura Dhanaraj W/o. Dhanaraj 13. Mrs. Lenina Bharahi Moses, W/o. J.C. Moses 14. Dr. Freeda Christiana Shanthini, W/o.E.S.D. Thambiraj .. Respondents O.S.A.NOs.378 of 2007 1. M. Somasundaram 2. S. Selvakumar .. Appellants Vs. The District Collector-cum- Accommodation Controller, Singaravelar Maligai, Rajaji Salai, Chennai 600 001. .. Respondent Original Side Appeals filed under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the common order dated 14.11.2007 made in Appln.No.6129 of 2007 in C.S.No.420 of 2007, C.S.No.420 of 2007 and O.A.No.606 of 2007 in C.S.No.420 of 2007 respectively. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.G. Ethirajalu for Mr.C. Prakasam For Respondent-1 in : Mrs. Bhavani Subburayan OSA.Nos.377, 378/07 & Special Govt. Pleader (C.S.) R-2 in OSA.376.07 For Respondent-1 in : Mr.T.R. Rajagopalan OSA.No.376/07 & R-2 Senior Counsel for in OSA.No.377/2007 Mr.M. Stalin - - - COMMON JUDGMENT P.K. MISRA, J The present appellants have filed C.S.No.420 of 2007 in the Original Side of the Madras High Court claiming the following reliefs :- "(a) For a declaration declaring that the three Sale Deeds dated 10.03.1996 registered as Document No.2001/96, 2009/96 & 2007/96 at the office of The Sub Registrar, Purasawalkam, Chennai, executed in favour of the 3rd Defendant by Defendants 4 to 14 are sham, nominal and therefore null and void and not binding on the 2nd Plaintiff. (b) For a consequential Declaration declaring that the three Sale Deeds dated 30.10.2000 registered as Document Nos.3661 of 2000, 3665 of 2000 and 3667 of 2000 at the office of The Sub Registrar, Purasawalkam, Chennai, executed in favour of the 2nd Defendant is sham, nominal and therefore null and void and not binding on the 2nd Plaintiff. (c) For a Declaration declaring that the 2nd Plaintiff is the absolute owner of the suit 'A' Schedule property by virtue of Will dated 01-07-1978 executed by Daisy Devasagayam. (d) To Grant Permanent Injunction restraining the 1st Defendant, his men, agents, staff, subordinates and officials or any person claiming through or engaged on behalf of the 1st Defendant from and in any way interfering with the Plaintiffs peaceful possession and enjoyment of premises bearing Door No.80, Millers Road, Kilpauk, Chennai 600 010 either by way of dispossessing, eviction or in any other manner pending disposal of the above suit." https://hcservices.ecourts.gov.in/hcservices/ 2. During pendency of such suit, they filed O.A.No.606 of 2007 against Defendant No.1, namely, the District Collector-cum- Accommodation Controller, for injunction restraining such defendant from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the schedule property either by way of dispossessing, eviction or in any other manner pending disposal of the suit. The second defendant filed Application No.6129 of 2007 for rejection of the plaint in C.S.No.420 of 2007. 2. By a common order dated 14.11.2007, the learned single Judge has rejected the plaint in C.S.No.420 of 2007 thereby allowing Application No.6129 of 2007 and consequently rejecting O.A.No.606 of 2007 with costs of Rs.10,000/- to be paid to the Tamil Nadu State Legal Services Authority. 3. O.S.A.No.376 of 2007 is directed against the order allowing Application No.6129 of 2007, O.S.A.No.377 of 2007 is directed against the order relating to rejection of the suit and O.S.A.No.378 of 2007 is directed against the order whereby the application filed by the plaintiffs for injunction has been rejected on account of rejection of the plaint itself. All the three appeals, which are thus against one common order, have been heard together and shall be governed by this common judgment. 4. Learned single Judge has rejected the plaint by invoking Order VII Rule 11 apparently on the ground that the present suit C.S.No.420 of 2007 is barred under Order II Rule 2, Order XXIII and Rule 1 C.P.C., and the filing of the suit is an abuse of process of the Court inasmuch as it amounts to re-litigation. 5. For appreciating the questions raised in the present appeals, it is necessary to notice in brief the factual background as apparent from the plaint or as admitted by the parties in course of hearing before the learned single Judge or before us. For convenience, the parties are described as they are described in C.S.No.420 of 2007. 6. There is no dispute that one J.G. Devasahayam was the admitted owner of the properties now in dispute. He had one brother Rajamani and one sister Soundaram Sundaresan. The aforesaid Devasahayam expired on 28.1.1962 leaving behind her widow Amy Devasahayam and two unmarried daughters Daisy and Padmini. Amy Devasahayam died on 22.1.1978. Daisy expired on 11.11.1979 and Padmini expired on 118.1995. 6.1 Rajamani's branch is represented by Defendant Nos.4 to 10 and Soundaram Sundarersan's branch, who died on 10.11.1986, is represented by Defendant Nos.11 to 14. Defendant No.3 has purchased the properties in dispute by registered sale deeds dated 10.3.1996 https://hcservices.ecourts.gov.in/hcservices/ from Defendant Nos.4 to 14. 6.2. Plaintiff No.2 is the son of Plaintiff No.1. They are not related to J.G. Devasahayam. 6.3 The property at Door Nos.79 and 80, Millers Road, Kilpauk, was handed over to the Accommodation Controller, the first defendant. Subsequently, the first plaintiff, who was working as a steno-typist under the Tamil Nadu Transport Department, was inducted by the Accommodation Controller as a tenant in respect of Door No.80 ('A' schedule property) with condition regarding payment of rent directly to Daisy. It is claimed by the plaintiffs that Daisy, who was staying in the same house, had executed a Will on 1.7.1978 in favour of the second plaintiff in respect of A to D schedule properties, 'A' schedule is 50% of undivided share over land and building in premises bearing Door No.80, Millers Road, Kilpauk, 'B' schedule is 50% of undivided share over land and building in premises bearing Door No.79, Millers Road, Kilpauk and 'C' schedule is 50% of undivided share over land and building in premises bearing Door No.34, Balfour Road, Kilpauk and 'D' scheule is 50% of undivided share over land and building in premises bearing Door No.9, Vinayagar Koil Street, Purasawalkam. Daisy expired on 11.11.1979. Defendant No.8 had filed O.P.No.59/1981 to declare Padmini as a lunatic and to appoint him as her guardian. The High Court by order dated 22.6.1983 declared Padmini as lunatic. Subsequently, Padmini expired on 11.8.1985. The first defendant subsequently sent a letter dated 12.8.1993 to the first plaintiff to vacate 'A' schedule property on the ground that the first plaintiff had retired from Government service, even though the first plaintiff had informed the 1st defendant regarding existence of the Will executed by Daisy. The first defendant again sent a letter dated 24.3.1995 threatening to evict the plaintiffs without considering the request of the second plaintiff to release such property in favour of him. At that stage, the plaintiffs filed O.S.No.2902 of 1995 against the first defendant for injunction, but the suit was withdrawn. The plaintiffs had filed appeal against the order of the first defendant before the Secretary to the Government and, at the time of filing of the present suit, such appeal was stated to be pending and stay had been granted. One R. Gnanadhikkam had filed O.P.No.41 of 1991 claiming that a Will, dated 8.8.1986 had been executed in his favour by Mrs. Soundaram Sundaresan in respect of the assets previously belonging to Daisy Devasahayam. Thereafter the children of Soundaram Sundaresan had filed Application Nos.2902 and 2903 of 1987 to set aside the order made in O.P.No.59 of 1981 regarding lunancy proceedings, but in such application there has been no whisper about the Will dated 8.8.1986 by Soundaram Sundaresan. By order dated 3.10.1988, the High Court had passed an order in Application No.1127/87, 2902 and 2903 of 1987 directing all the persons claiming under J.G. Deivasahayam to file appropriate suit and establish their rights over the properties of Padmini Devasahayam, https://hcservices.ecourts.gov.in/hcservices/ which they claimed to have succeeded after the death of Daisy. Defendant Nos.11 to 14 subsequently filed W.P.No.15660 of 1989 for issuing a Writ of Mandamus to implement G.O.Ms.No.1338 dated 10.5.1988, whereunder the Government had directed that the rent for 'C' schedule property should be paid to them. Though initially by order dated 22.12.1989 such writ petition was allowed, subsequently, 11th defendant, the father of Defendants 5 to 7, had filed an application for recalling such order and ultimately the High Court recalled the earlier order and dismissed the writ petition filed by Defendant Nos.11 to 14 on the ground that they had suppressed the material facts and directed that criminal proceedings should be initiated. Even though initially the High Court granted probate in respect of O.P.No.41 of 1991, subsequently, the second plaintiff had filed Appln.No.704 of 1991 to revoke the probate and Appln.No.748 of 1991 for restraining Gnanathikkam from putting up any construction. In the said application it was claimed by the second plaintiff that Daisy had executed a Will dated 1.7.1978. Subsequently, the second plaintiff had filed O.P. for grant of probate on 26.8.1991, but the same was numbered as O.P.No.210/1995. The second plaintiff also issued notice to the Accommodation Controller not to handover possession of the disputed property to anyone. Defendant Nos.4 to 7 jointly executed a sale deed on 10.6.1996 in favour of Defendant No.3 in respect of 1/4th share in the property in Door No.80, Millers Road. On the very same, Defendant Nos.8, 9 and 10 jointly executed another sale deed in favour of the very same Defendant No.3 in respect of 1/4th share in the very same property and Defendant Nos.11 to 14 had executed a sale deed in favour of Defendant No.3 in respect of 1/2 share in the very same property. The first defendant once again sent a notice dated 22.2.2000 directing the first plaintiff to vacate and deliver possession of 'A' schedule property. At that stage, the plaintiffs filed O.S.No.2411 of 2000 against the first defendant for permanent injunction. While such suit was pending, the second defendant filed a petition for being impleaded on the ground that he had purchased 'A' and 'B' schedule property from 3rd defendant, who in turn had purchased the properties from Defendant Nos.4 to 14. The second defendant produced the sale deeds only on 13.1.2005 before the trial court in O.S.No.2411 of 2000, which was marked as Exs.B-1 to B-3 and claimed title. From the documents filed by Defendant No.2 in course of cross-examination, the plaintiffs came to know that suppressing the orders of the High Court in W.P.No.15660 of 1989 and O.A.Nos.704 of 1991 and 741 of 1991, Defendant Nos.4 to 14 had colluded together and created sale deeds in favour of Defendant No.3 and such sale deeds in favour of Defendant No.3 are sham and nominal. The defendants had also suppressed the pendency of probate petition numbered as O.P.No.210 of 1995. Validity of such sale deeds dated 10.6.1996 had been impugned by raising several contentions. Three sale deeds in favour of Defendant No.2 were also assailed on similar grounds. Plaintiff No.2 claims title by virtue of the Will. It is claimed that because of the subsequent sale deeds https://hcservices.ecourts.gov.in/hcservices/ and the stand of the defendants, the plaintiffs have filed the comprehensive suit for title in respect of 'A' schedule property with liberty to file appropriate suit against 'B' 'C' and 'D' schedule properties and it has been stated that they undertake to withdraw O.S.No.2411 of 2000 pending before the City Civil Court as the only prayer in the said suit was for permanent injunction. 7. Defendant No.2 in his application numbered as Application No.6129 of 2007 for rejection of the plaint has stated that widow and the two unmarried daughters of J.G. Devasahayam having died intestate, the property was inherited by the heirs of the brother and sister of D.G. Devasahayam and they by separate sale deeds dated 10.6.1996 had sold the property to Defendant No.3 and subsequently Defendant No.3 had sold the property to Defendant No.2 by registered sale deeds 30.10.2000. Since J.G. Devasahayam was residing outside, the property had been entrusted to the Accommodation Controller, who had allotted a portion of the premises of Door No.80 to the first plaintiff as tenant. Since the first plaintiff had retired from service with effect from 31.12.1990, the Accommodation Controller had issued a letter dated 21.9.1993 to vacate the premises. Such Accommodation Controller initiated eviction proceedings under Section 3(a) of the Tamil Nadu Buildings (Lease and Rent) Control Act. The plaintiffs filed O.S.No.2902 of 1995 against the Accommodation Controller for bare injunction and, at that stage, for the first time, the plaintiffs came up with a story of alleged Will in their favour. When the suit was ripe for trial during the year 2000, the plaintiffs withdrew the same, which was accordingly dismissed on 7.7.2000. Thereafter, the Accommodation Controller again initiated eviction proceedings, but, the plaintiffs, on the basis of similar allegations as had been made in O.S.No.2902 of 1995, filed a fresh suit numbered as O.S.No.2411 of 2000 again for bare injunction and obtained an interim order of injunction. In the meantime, Defendant No.2, who had purchased the property from Defendant No.3, had filed an application dated 31.7.2001 before the Accommodation Controller for release of the said property from the Government Tenancy under Section 3A(i)(a) of the Rent Control Act. The Accommodation Controller vide proceedings, dated 21.9.1993, ordered release of the subject property and directed the plaintiffs to vacate and handover possession, but the plaintiffs continued to remain in illegal possession. At that stage, Defendant No.2 got himself impleaded in O.S.No.2411 of 2000 and the plaintiffs thereafter were merely dragging on the suit and subsequently filed W.P.No.20769 of 2004 and obtained stay in respect of the very same subject matter but, subsequently, such writ petition was withdrawn. Even during pendency of such suit, the second plaintiff filed RCOP.No.414 of 2002 for eviction against his father, the first plaintiff. Even after hearing of the suit was completed and the matter was reserved for judgment, the plaintiffs filed application after application with a view to drag on the proceedings but, https://hcservices.ecourts.gov.in/hcservices/ ultimately on 8.6.2007, they withdrew O.S.No.2411 of 2000 as by then they had already filed the present suit C.S.No.420 of 2007 and had obtained an ex-parte injunction. The present suit has been filed only with a view to drag on the proceedings to continue the illegal occupation. Defendant No.2 has claimed that the prayer No. (a) and (b) relating to earlier sale deeds as null and void was barred by the law of limitation. So far as prayer No.(c) is concerned, it was asserted in the application :- "12. As regards prayer (c) of the suit to declare the 2nd Plaintiff as the absolute Owner of the suit property by virtue of alleged Will date 1-7-1978, I humbly submit that the same is also not maintainable. The Plaintiffs have filed O.P.No.210 of 1995, before this Hon'ble Court seeking probate of the alleged Will. The Plaintiffs have stated in their evidence before the City Civil Court in O.S.NO.2411 of 2000 that unless they get probate of the alleged Will they will not get right over the property. That has been their stand all these years. The alleged probate proceedings are also kept pending by the Plaintiffs for more than 12 years. Hence the relief sought for in prayer C is against law." So far as the prayer relating to (d) injunction is concerned, it is contended that the plaintiffs had filed two earlier suits for the same relief and they are playing fraud by using the process of the Courts to suit their illegal ends. In respect of probate proceedings, it has been further indicated that though the alleged Will was in respect of three other properties, namely, Door No.79 at Millers Road, Door No.34 at Balfour Road and Door No.9 at Vinayagar Koil Street, the suit for declaration has been filed only in respect of the suit property at Door No.80, Millers Road, which was indicative of the fact that the Will was not at all genuine and the only intention of the plaintiffs was to delay the matter as they were in possession. 8. A counter was filed by the second plaintiff by stating that the petition under Order VII Rule 11 was not maintainable. It was stated in the counter that the sale deeds in favour of Defendant No.2 and his vendor Defendant No.3 were all collusive and nominal transactions. It was further stated that the earlier suits were based on different cause of action. It was further stated that probate proceedings in O.P.No.210 of 1995 had been filed for probating the Will, but, subsequently by amendment to the Indian Succession Act in 2002, the Will executed by an Indian Christian need not be probated and, therefore, the plaintiffs became the owner of the property. The plaintiffs filed the present suit when the sale deeds were disclosed and produced in the court. https://hcservices.ecourts.gov.in/hcservices/ 9. Learned Counsel appearing for the appellants has submitted that for rejecting the plaint under Order VII Rule 11 CPC., the Court is required to come to a conclusion only on the basis of the allegations made in the plaint that the suit is barred by any law. In this context it has been submitted that the earlier two suits had in fact been withdrawn and had not been decided on merit and, therefore, the bar under Order II Rule 2 was not applicable. Moreover, two earlier suits were only the suits for bare injunction and the present suit is one for declaration that the sale deeds in favour of Defendant No.3 and Defendant No.2 are null and void and also for declaration of the title of the plaintiffs and, therefore, it cannot be said that the present suit is based on some cause of action. For the aforesaid reasons, the learned counsel for the appellant has also submitted that the bar under Order XXIII Rule 1(3) would not be applicable inasmuch as the present suit is a compendious suit for title and for declaration that the sale deeds in favour of Defendant Nos. 2 and 3 are null and void and also for injunction. 10.Order II Rule 2, Order VII Rule 11 and Order XXIII Rule 1(3) & (4) being relevant, are extracted hereunder :- Order II Rule 2: "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 any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Order VII Rule 11: "11. Rejection of plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; https://hcservices.ecourts.gov.in/hcservices/ (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaintiff to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." Order XXIII Rule 1(3) & (4) "(3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff - (a) abandons any suit or part of claim under sub-rule (1), or https://hcservices.ecourts.gov.in/hcservices/ (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." 11. Apart from thebar Order II Rule 2 and Order 23 Rule 1, the learned single Judge has also applied the doctrine of abuse of process of court and the doctrine of re-litigation. It is necessary at this stage to notice the latter principles. 12. In (1998) 3 SCC 573 (K.K. MODI v. K.N. MODI AND OTHERS), the appellant before the Supreme Court had filed a petition under Section 33 of the Arbitration Act, 1940, challenging the decision of the Chairman and Managing Director of IFCI on the footing that it was an award in the arbitration proceedings between the two groups. On the very same day, they had also filed a civil suit challenging the very same decision of the Chairman and Managing Director of IFCI on the basis of substantially the same allegations as had been made in the arbitration petition. In one paragraph, however, it had been stated that the same reliefs were being claimed in a suit in the event of it being held that the decision of the Chairman and Managing Director of IFCI was not an arbitration award but was just a decision. Learned single of the Delhi High Court held that filing of the suit was an abuse of process of the court as the allegations in the arbitration petition and the suit were identical and had been instituted on the same day and accordingly the single Judge struck down the plaint by invoking jurisdiction under Order 6 Rule 16 of the Code of Civil Procedure. The Division Bench, while admitting the appeal, passed an order reviving the order passed by the learned single Judge wherein