IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.09.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.580 of 2003 1. K.Jayakumar (Died) 2. K.Vijayakumar 3. J.Kala .... Appellants/Defendants (3rd appellant brought on record as L.R of the deceased first appellant vide order of Court dated 11.08.2008 made in C.M.P.No.1351 of 2008) vs. 1. Koteeswaran 2. Murthy ... Respondents/Plaintiffs Appeal preferred against the judgment and decree dated 22.10.2002 passed in O.S.No.4879 of 1997 by the III Additional Judge, City Civil Court, Chennai. For Appellants : Mr.V.Raghavachari For Respondents : Mr.S.V.Jayaraman, Senior counsel for Mr.C.Selvaraju JUDGMENT This appeal is focussed as against the judgment and decree dated 22.10.2002 passed by the III Additional Judge, City Civil Court, Chennai in O.S.No.4879 of 1997, which is a suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The parodying and portrayal of the case of the plaintiffs, succinctly and precisely, as stood exposited from the plaint would run thus: https://hcservices.ecourts.gov.in/hcservices/ a) One Late Madurai Chetty and his second wife Ammakannu gave birth to two children, viz., Kristappa Chetty, the father of the defendants herein and Elumalai Chetty, the father of the plaintiffs herein. The said Madurai Chetty acquired four house properties of which, two are described in the schedule of the plaint. Madurai Chetty executed a Settlement Deed dated 18.09.1926 in respect of all his four house properties with the stipulation that the two properties described in the schedule of the plaint should be enjoyed by his second wife Ammakannu and his two sons during their life time and the male issues of Madurai Chetty's sons should enjoy those properties absolutely. The said Ammakannu died and Madurai Chetty's two sons, viz., Elumalai chetty and Kristappa Chetty died on 22.12.91 and 30.11.91 respectively. Consequent upon the death of the two sons of Madurai Chetty, the plaintiffs and defendants, being the descendants of them, became the owners of the properties described in the schedule of the plaint. The other two properties not specified in the schedule of the plaint were dealt with by Elumalai Chetty and Kristappa Chetty and they disposed them of, over which, there is no controversy. b) During the life time of Elumalai Chetty and Kristappa Chetty, the plaintiffs, even though happened to be the sons of Elumalai Chetty were denied enjoyment of the scheduled mentioned properties; whereupon O.S.No.6794 of 1988 was filed in the Court of VIII Assistant Judge, City Civil Court, Madras for rendition of accounts, for permanent injunction and for other incidental reliefs. During the pendency of such previous suit, Elumalai Chetty and Kristappa Chetty died. Subsequently, the suit was withdrawn by both of them as the same has become infructuous. After the death of Elumalai Chetty and Kristappa Chetty, the plaintiffs and the defendants have been enjoying the suit properties. Owing to family circumstances, the plaintiffs inducted the tenants into the suit properties and they are in possession on behalf of the plaintiffs. The incessant demands by the plaintiffs to the defendants for amicable partition evoked no positive response from them, which necessitated the plaintiffs to file the suit for partition. c) The plaintiffs parents are Elumalai Chetty and Rajeswari Ammal whose marriage took place on 23.02.1956 according to Hindu Rites and Customs and during the wedlock, the first and the second plaintiff were born in the year 1957 and 1960 respectively. Misunderstanding crept in the relationship between the plaintiffs' father and mother and their father drove out their mother from the matrimonial house and neglected to maintain her and the plaintiffs, who https://hcservices.ecourts.gov.in/hcservices/ were minors at that time. Consequently, the plaintiffs' mother filed M.C.No.745/62 as against Elumalai Chetty, before the V Presidency Magistrate Court, which Court ordered maintenance on 19.05.1962. Elumalai Chetty was paying maintenance to Rajeswari Ammal till her death on 15.04.1978. Accordingly, they prayed for decreeing the original suit. 3. Remonstrating and refuting, controverting and contradicting, the allegations/averments in the plaint, the defendants filed the written statement with various averments, the warp and woof of them would run thus: a) The previous suit O.S.No.6794/88 referred to in the plaint was dismissed for default at the trial stage for non- prosecution; whereupon the plaintiffs filed a petition for setting aside the order of dismissal of the said suit along with I.A.No.11665/92 for getting the 194 days delay condoned in filing such application. But the said petition was dismissed on merits, as against which, no appeal was filed. However, the plaintiffs have chosen to file this suit once again. b) In the previous suit, Elumalai Chetty himself during his life time, filed the written statement contending that the plaintiffs are not his sons and even though Elumalai Chetty married Rajeswari Ammal, the mother of the plaintiffs on 23.02.1956, nonetheless, the plaintiffs who were born to Rajeswari Ammal were not born through Elumalai Chetty, who was suffering from tuberculosis and as per Doctor's advice Elumalai Chetty refrained from having sexual relationship with Rajeswari Ammal; whereupon, Rajeswari Ammal left the matrimonial home within a few days of marriage, expressing her desire that she could not live with Elumalai Chetty as his wife. Subsequently, Rajeswari Ammal herself informed Elumalai Chetty that she was living with one Deivasigamani. Inasmuch as the plaintiffs are not the paternal grand sons of Madurai Chetty, the original owner of the suit properties, who executed the Settlement Deed, the plaintiffs cannot claim any right over the same. The allegations to the contrary relating to enjoyment of the suit properties by the plaintiffs through the tenants are false and frivolous and the plaintiffs are having no locus standi to file the suit. The defendants are the absolute owners of the suit properties and they are in physical posession of the same. The present suit is barred by res judicata. Accordingly, they prayed for the dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 4. The trial Court framed the relevant issues. During trial, on the plaintiffs' side, the first plaintiff was examined as PW1 and Exs.A1 to A13 were marked. On the defendants' side the first defendant Jayakumar was examined as DW1 and Exs.B1 to B6 were marked. Ultimately, the trial Court decreed the suit. 5. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendants filed this appal on the following grounds among others: (i) the judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case. (ii) The trial Court failed to hold that the plaintiffs are not the sons of Elumalai Chetty. (iii) The trial Court failed to apply the principles of res subjudice and res judicata as against the plaintiffs suit. (iv) Elumalai Chetty, in the previous suit denied that the plaintiffs are his sons. The plaintiffs were born to Rajeswari Ammal and Deivasigamani. Ignoring all these facts borne by evidence, the trial Court ordered partition. (v) The trial Court blindly, placing reliance on the criminal court proceedings concerning maintenance, decreed the suit, which as per law was not the correct approach. The plaintiffs have not produced any legal heirship certificate to prove their parentage. (vi) Exs.A9 and A10, the marriage invitation cards relating to first and second plaintiffs are the self-serving cooked up documents and the trial Court did not take into account the falsities in the case of the plaintiffs. (vii) The oral evidence of the defendants clearly exemplified and demonstrated that Elumalai Chetty and Rajeswari Ammal never cohabited with each other and Elumalai Chetty had no sexual relationship with his wife as per the medical advice and that he could not be the father of the plaintiffs. (viii) The trial Court failed to note the admission made by the first plaintiff himself during cross examination that the plaintiffs were not in possession of the suit properties at any point of time. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, they prayed for setting aside the judgment and decree of the trial Court. 6. The points for consideration are as to:- 1. Whether the suit is barred in view of Section 11 or under Order 9 Rule 9 of Code of Civil Procedure? 2. Whether the plaintiffs are the legitimate children of Elumalai Chetty and Rajeswari Ammal and whether reliable evidence was adduced before the trial Court in support of the plaintiffs' contention? 3. Whether there is any infirmity in the judgment and decree of the trial Court? Point No.1: 7. The learned counsel for the plaintiffs would submit that the suit is not barred by res judicata or as per Order 9 Rule 9 of CPC in view of the fact that the earlier suit O.S.No.6794 of 1988 filed by the plaintiffs before the VIII Assistant Judge, City Civil Court, Madras was for rendition of accounts and for permanent injunction as against Elumalai Chetty and others; the defendants have not raised any specific plea that the suit is barred in view of Order 9 Rule 9 of CPC; the cause of action for the earlier suit O.S.No.6794 of 1988 was different from the cause of action for the present suit and the prayers are also different. 8. Per contra, the learned counsel for the defendants would advance his argument that the plaintiffs in the plaint came forward with untrue statement because the reality is that the earlier suit was dismissed for default, after it was listed for trial; in such a case, the bar as contemplated under Order 9 Rule 9 of CPC is squarely applicable to the facts and circumstances of this case; the definition, cause of action, would demonstrate that bundle of facts would constitute cause of action and here, for the earlier suit as well as for the present suit, the cause of action relied on by the plaintiffs is one and the same, so to say, they relied upon one and the same set of allegations that they are the sons of the deceased Elumalai Chetty born through Rajeswari Ammal and that as per their paternal grand father Madurai Chetty's settlement deed dated 18.09.1926, they are entitled to half share in the suit property and arguing as aforesaid the learned counsel contended that the plaintiffs are having no right to prosecute the present suit at all. 9. No doubt, a bare perusal of the written statement would indicate that even though the plea of res judicata was specifically raised by the defendants, nonetheless, they have not raised in very https://hcservices.ecourts.gov.in/hcservices/ many words, the bar as contemplated under Order 9 Rule 9 of CPC. The plea of res judicata, obviously is not a sound one in view of the fact that the prayers in both the suits are not one and the same; the issues also are not the one and the same and even to attract the principle of constructive res judicata, there are no adequate materials. 10. The learned counsel for the defendants would also submit that the concept issue estoppel would be attracted. In my considered opinion, no issue was decided on merits relating to the paternity of the children in the earlier proceedings, as it was dismissed for default. However, in the present suit, there is a specific issue relating to the paternity of the children. The present suit is for partition and for allotment of half share in favour of the plaintiffs at the rate of ¼ th share each based on Ex.A.13, the settlement deed executed by Madurai Chetty, the father of Elumalai Chetty. Whereas in the earlier suit the relief sought for as cited supra, was for a different purpose to wit for getting accounts from Elumalai Chetty and his brother Kristappa Chetty, as they were entitled to receive rents during their life time and to maintain the descendants of Elumalai Chetty and Kristappa Chetty and not for partition. 11. It is therefore clear, that substantial issues is different from incidental issue. So far, this case is concerned, the substantial issue is relating to the claim of partition of half share of the plaintiffs in the suit properties and in order to adjudge as to whether the plaintiffs are entitled to half share at the rate of ¼ th share each in their favour based on Ex.A13, their status as that of the legitimate children of Elumalai Chetty is also very much involved as one of the main issues. Hence, in such a case, it is obvious that the principle of res judicata cannot be pressed into service in the facts and circumstances of this case. 12. The learned counsel for the defendants cited the following four decisions in support of the plea of res judicata as well as Order 9 Rule 9 of CPC. (i) 2006 (2) LW 259 (Dr.S.Jayakumar and another vs. K.Kandasamy Gounder) (ii) Judgment in Civil Appeal No.3495 of 2008 (Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas and another) (iii) 1990 (II) MLJ 80 (Gnanasigamani vs. Kamala Bai and another) (iv) AIR 1920 Allahabad 340 (Rup Singh vs. Bhabhuti Singh and others) 13. An excerpt from the decision reported in 2006 (2) LW 259 is extracted here under: https://hcservices.ecourts.gov.in/hcservices/ "9. O.S.No.394 of 1990 filed for Declaration and Partition of “A Schedule” property in S.F.No.105 was dismissed for default on 15.03.1993. I.A.No.979 of 1993 filed by the Plaintiff to restore the suit was allowed on terms on 16.06.1994 with condition that the Plaintiff Kandaswamy should pay cost of Rs.250/- to the respondents. Because of non-payment of conditional cost, the Application in I.A.No.979 of 1993 was dismissed. Hence, the decree and dismissal of the suit in O.S.No.394 of 1990 has become final. This being the position would not the bar under Order IX Rule 9 C.P.C preclude the filing of fresh suit would apply to the case is the main point involved in this Revision Petition. 12. Applying the above principles, if we consider the plaint averments in both the suits, we may find that the property, parties and the cause of action in both the suits are in substance identical. Both the suits relate to same Items of Properties:- S.No. 105 - 1.45 acres / 1.93 acres S.No. 106 - 2.74 acres / 3.65 acres S.No. 107 - 0.37 acres / 5.61 acres S.No. 107 - 4.25 acres / 5.61 acres 13. Both the suits refer to the same cause of action viz., Settlement deed in favour of the Plaintiff dated 22.04.1958 executed by Krishnammal and denial of Plaintiffs title by his Sisters Mylathal and another. By a careful consideration of the cause of action, it is clear that the cause of action in both the suits are identical. Further cause of action alleged in 1998 in O.S.No.278 of 1999 is very slender and would not substitute the case of the Plaintiff that a fresh cause of action has arisen to file a fresh suit. The Plaintiff cannot contend that fresh cause of action has arisen in view of handing over of possession by the Tenant to the Defendants 1 and 2 after the conclusion of the suit in O.S.No.954 of 1992. Learned Senior Counsel is right in submitting that the cause of action in both the suits are one and the same and the bar under Order IX Rule 9 precludes the filing of a fresh suit." (emphasis supplied) The perusal of the above excerpt including the whole judgment cited supra, would leave no doubt in the mind of the Court that, the facts involved in the said decision are entirely different from the case at hand. In the cited case, the suits filed earlier and subsequently were for partition and simply for the purpose of artificially projecting an additional cause of action in the subsequently instituted suit, the alleged surrender of handing over possession by https://hcservices.ecourts.gov.in/hcservices/ the tenants to the defendants 1 and 2 which occurred after the previous suit, was cited as an additional fact. 14. Whereas in this case, my above discussion would clearly exemplify that the substantial issues involved in both the suits are entirely different and as such, the cited decision cannot be pressed into service in support of the plea of the defendants. 15. An excerpt from the judgment in Civil Appeal No.3495 of 2008 of Hon'ble Apex Court (un reported judgment), would run thus: "31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold: "29. There is a distinction between "issue estoppel" and "res judicata". (See Thoday v. Thoday) 30. Res judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz.estoppel by accord." (emphasis supplied) Absolutely, there is no quarrel over such a proposition as found posited in the cited decision of the Hon'ble Apex Court. But, my discussion supra would indicate as to how in the earlier suit, the prayer itself was not for partition or for declaring the status of the plaintiffs herein and no issue was also decided on merits. 16. The decision of this Court reported in 1990 (II) MLJ 80 arose in respect of matrimonial proceedings. Certain excerpts from it would run thus: "9. Issue No.(ii) in O.M.S.No.9 of 1985 revolving on the question of maintainability of the suit can be taken up for consideration, first and foremost and the other issues in O.M.S.No.9/85 viz.Issues (i) and (iii) can compendiously be grouped together along with Issues (i) and (ii) in O.M.S.No.12/83, and disposed of, for the simple reason that the finding given one way or the other on Issues (i) and (iii) in O.M.S.No.9/85 will have a direct bearing on Issues (i) and (ii) in O.M.S.No.12/83, in the sense, that, if the question of adultery is found against the husband and consequently no decree nisi for divorce can be passed, it https://hcservices.ecourts.gov.in/hcservices/ goes without saying that there can be no justification whatever for the husband to resist the other suit for restitution of conjugal rights and the same has to result in a decree as prayed for. No doubt, true it is that the maintainability of O.M.S.No.19 of 1982 had been questioned on the legal plea of res judicata. Learned counsel for the wife, realising the legal lacuna in setting up such a plea, would frankly submit that the maintainability question cannot at all be decided on the plea of res judicata and he would in fact base the maintainability question on Order 9 Rule 9 C.P.C., which is applicable to matrimonial proceedings under the Indian Divorce Act, hereinafter referred to as "the Act", on the face of the provision contained in Order 27 Rule 14 of the Original Side Rules and Section 45 of the Act, which are extracted hereunder: Order 27 Rule 14 of the Original Side Rules, reads as under: "Subject to the foregoing rules, the provisions of the Code and of these rules with respect to civil suits and matters shall apply to all proceedings under the said Act." Section 45 of the Act (Indian Divorce Act) reads as under: "CODE OF CIVIL PROCEDURE TO APPLY:- Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure". There is no manner of doubt whatever that, on the same set of facts and circumstances and the same cause of action as detailed in the present suit, the husband earlier filed O.M.S.No.19/82 for the same relief as prayed for in the present suit, which was in fact dismissed for default, and the initial restoration application as well as the subsequent one filed by the husband were also dismissed, vide Exs.P12 to P15, P17 and R5. The matter was not at all agitated further and consequently the dismissal of that suit has become final. 10. For understanding the provision of Order 9 Rule 9 (1) CPC., it is better to extract the provision of Order 9 Rule 8 C.P.C. Order 9 Rule 8 C.P.C.reads as follows:- "PROCEDURE WHERE DEFENDANT ONLY APPEARS: Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the https://hcservices.ecourts.gov.in/hcservices/ claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates the remainder". Order 9 Rule 9(1) reads as follows:- 'DECREE AGAINST PLAINTIFF BY DEFAULT BARS FRESH SUIT - Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hering, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit". From the provisions extracted above, it is crystal clear that once the suit is dismissed for default, the plaintiff shall be precluded from bringing any fresh suit in respect of the same cause of action. The Punjab and Haryana High court in Manjit Kaur v. Gurdial Singh (AIR 1978 P & H 150) had occasion to consider the effect of Order 9 Rule 9 C.P.C., wherein an application under Section 10 of the Hindu Marriage Act was dismissed for default and not restored, and in the fag end of Paragraph 7 of the judgment, it was held as follows:- "The facts leading to the filing of the petition and the cause of action for both were, therefore, the same. No application for restoration of the first suit was ever filed. On these facts and in the state of law discussed by me above, the respondent appears to me to be precluded from filing the present application for divorce in respect of the same cause of action, that is the same desertion. The order of the learned District Judge to the contrary cannot, therefore, stand". The observation as extracted above is on all fours applicable to the case on hand, notwithstanding the fact that the relief of divorce is sought for under the Indian Divorce Act. https://hcservices.ecourts.gov.in/hcservices/ 11. Learned counsel for the husband, having been placed in a predicament position, in the sense of not being able to meet out the argument so projected by recourse to precedents of superior courts of jurisdiction in India, took asylum and shelter in quoting an English decision in Thompson v.Thompson (1957 1 ALL E.R.161) and relied on the following observation of Denning, L.J.: "..... once an issue of a matrimonial offence has been litigated between the parties and decided by a competent Court, neither party can claim as of right to re-open the issue and litigate it all over again if the other party objects; but the Divorce Court has the right, and indeed the duty in a proper case, to reopen it, despite the objection of the other party". 12. The English decision can surely be taken as a guide for understanding the legal implication of the provisions contained in the Indian Statute, provided the provisions of the Indian as well as English law are one and the same, and when there are no Indian precedents. On the face of the applicability of the Code of Civil Procedure, by the salient provisions contained in the Original Side Rules, and the Indian Divorce Act, as stated above, which contain a specific provision in Order 9 Rule 9 C.P.C., precluding the plaintiff from filing a fresh suit in respect of the same cause of action where the suit originally instituted was dismissed,......." The