IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2011 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR O.S.A.No.310 of 2010 L.Mohanam .. Appellant Vs. 1.Mohamed Idris 2.Syed Nasrulla Basha 3.Nasreen Begum .. Respondents Original Side Appeal under Clause 15 of The Letters Patent r/w Order XXXVI Rule 9 of Original Side Rules against the judgment and decree dated 26.07.2010 passed by the learned judge in C.S.No.434 of 2007 to set aside the same and decree the suit as prayed for with costs. For Appellant :: Mr.S.Parthasarathy, Sr.Counsel for Mr.M.Balasubramaniam For R1 :: Mr.Sheik Nainaa For R2 & R3 :: Mr.S.Narayanan JUDGMENT P.R.SHIVAKUMAR, J. Plaintiff in C.S.No.434 of 2007 on the file of this court in its ordinary original civil jurisdiction is the appellant in the Original Side Appeal. The suit had been filed for (1) a declaration declaring that the first respondent had no redeemable right over the plaint schedule properties, (2) a declaration declaring the plaintiff (appellant) to be the absolute owner of the plaint schedule property, (3) a decree cancelling the ex-parte decree dated 14.06.2006 passed by the VII Assistant Judge, City Civil Court, Chennai in O.S.No.9869/1990 as having been obtained by misrepresentation and (4) a permanent injunction restraining the defendants or anybody claiming through them in any manner interfering with the plaintiff's/appellant's peaceful possession and enjoyment of the suit property. 2. Initially the suit was filed against Mohamed Idris, the first respondent alone showing him to be the sole defendant. I n s t a t e o f A n d h r a P r a d e s h v s T . S u r y a c h a n d r a R a o [ 3 ] i t h a s b e e https://hcservices.ecourts.gov.in/hcservices/ Subsequently, as per order dated 20.10.2008 made in A.No.1347/2008, respondents 2 and 3 were impleaded as defendants 2 and 3. The suit was resisted by the first defendant by filing a written statement. After their impleadment defendants 2 and 3 also filed wirtten statement and thereafter the appellant/plaintiff filed a reply statement. At the conclusion of the trial, the learned single judge of this court dismissed the suit with costs by judgment and decree dated 26.07.2010 and the said decree is impugned in this appeal. 3. The plaint averments in brief, are as follows:- i) The suit property bearing old door No.13 and the present door No.148, Portuguese Church Street in George Town, Chennai – 600 001 belonged to one Thayub Begum. During her life time, she mortgaged the said property by a registered simple Mortgage Deed dated 09.01.1970 bearing document No.14/1970 in favour of one Indra Kanvar Bai Taleda for a sum of Rs.9,000/- agreeing to repay the said amount with an interest at the rate of 18% per annum. The parties to the Mortgage Deed mutually agreed for the sale of the mortgaged property by public auction or by private negotiation under Section 69 of the Transfer of Property Act in case of default in repayment of the debt secured by the mortgagee. The mortgagor was unable to discharge the mortgage debt and without discharging the debt she died intestate on 01.04.1978. Thereafter, the mortgagee Indra Kanvar Bai Taleda assigned the mortgage in favour of T.M.Abdul Rahman under a Deed of Assignment dated 27.12.1984 registered as document No.3543/1984 on the file of Sub Registrar, Chennai-North. Meanwhile, the Income Tax department attached the rental income from the tenants of the suit property for the recovery of the Income Tax dues of Thayub Begum (the original mortgagor). One Nasreen Begum, the adopted daughter of Thayub Begum, unable to pay the income tax dues, took steps along with T.M.Abdul Rahman to bring the suit property for public auction through M/s.Murray & Company. In view of the subsisting attachment of rents by the Income Tax department, there was no bidder to bid at the auction. Therefore, the assignee-mortgagee entered into a private sale transaction with one Ziauddin on 07.01.1985 and the said Nasreen Begum also joined him as a confirming party in executing the Sale Deed registered as document No.68 of 1985 on the file of the Sub Registrar, Sowcarpet. The Purchaser Ziauddin paid a portion of the sale consideration directly to the Income Tax department towards the tax dues and got the property released from the attachment and paid the balance amount of sale consideration to the assignee of the mortgage, namely T.M.Abdul Rahman. Mohanam, the appellant/plaintiff, thereafter purchased the property from Ziauddin under a registered Sale Deed dated 10.06.1988 registered as document No.266/1988 on the file of the Sub Registrar, Sowcarpet, Chennai and spent huge amount for developing the suit property after such purchase. ii) One Ayisha Begum, claiming to be the sister of Thayub Begum filed a pauper suit in O.P.No.324 of 1986 in 1986 itself on the file of the City Civil Court, Chennai against Ziauddin and T.M.Abdul Rahman for a declaration that the Sale Deed dated https://hcservices.ecourts.gov.in/hcservices/ 07.01.1985, namely document No.68 of 1985 registered on the file of Sub Registrar, Sowcarpet was null and void. During the pendency of the said suit, Ayisha Begum passed away and Mohamed Idris, the first defendant/first respondent in the appeal was impleaded as the legal heir of Ayisha Begum. Subsequently, the same came to be numbered as O.S.No.9869 of 1990 on the file of the VII Assistant Judge, City Civil Court, Chennai on 07.11.1990. On 06.11.1991 the said suit was decreed ex-parte against Ziauddin and T.M.Abdul Rahman, the defendants therein. Mohanam, the appellant herein/plaintiff was not a party to the said suit and he was not aware of the same. After his purchase, the plaintiff Mohanam came to know about the decree, when service of summons was effected on him in a subsequent suit O.S.No.9822/1992 filed by Mohamed Idris, the first respondent herein/first defendant, on the file of the City Civil Court, Chennai for redemption of the mortgage executed under the deed dated 09.01.1970. Mohanam, the appellant herein/plaintiff, was arrayed as the 4th defendant in the said redemption suit, . Mohamed Idris, the first respondent herein/first defendant did not have any locus standi to file the said suit for redemption of mortgage and he had filed the suit by falsely claiming to be the legal heir of Thayub Begum. Subsequently, Mohanam, the appellant herein/plaintiff got himself impleaded as a defendant in the earlier suit O.S.No.9869/1990. In the latter suit O.S.No.9322/1992, it had been stated that Thayub Begum was married to one Shaik Abdul Khader and that he divorced her and left for Pakistan with all his children to be settled there permanently. From the said pleadings, the appellant/plaintiff came to know that Thayub Begum had 2 sons and 2 daughters. As such the claim of Ayisha Begum to maintain the earlier suit, namely O.S.No.9869/1990, in her capacity as sister of Thayub Begum could not be sustained. Being a stranger, she made an attempt to snatch away the suit property by wrongly claiming to be the legal heir of Thayub Begum. Pending disposal of the said suit O.S.No.9869/1990, Ayisha Begum died and Mohamed Idris, the first defendant was brought on record as her legal heir in the said suit. iii) On 17.04.1997 the second suit O.S.No.9822/1992 was dismissed for default subsequently the same was restored to file on 10.08.2004 by an order passed in I.A.No.16597/2002. As against the said order, a revision was filed in Civil Revision Petition No.934/2004. In the said CRP an order was passed on 23.06.2004 directing disposal of the earlier suit, namely O.S.No.9869/1990 within a time frame. Issues were framed in the said suit on 10.08.2004. Thereafter Mohamed Idris, the first respondent herein/first defendant insisted upon a joint trial of the suits O.S.Nos.9869/1990 and 9822/1992. On the same day, the VIII Assistant Judge issued a test warrant for determination of the market value of the suit property and accordingly the 'Amin' of the City Civil Court filed a report valuing the suit property at Rs.20.00 Lakhs. Mohanam, the appellant herein/ plaintiff filed two applications on 21.09.2004 for the return of the plaint to be presented before proper court based on the valuation fixed by the Amin of the court. But the said court rejected the said application on 22.09.2004 stating that the market value of the suit https://hcservices.ecourts.gov.in/hcservices/ property had not then been fixed by the court. Immediately after the rejection of the said petition, Mohamed Idris, the first respondent herein/first defendant filed I.A.No.1659 of 2004 praying for the leave of the court to withdraw the suit O.S.No.9822/1992 with liberty to file a fresh suit on the very same cause of action. The said petition was resisted. However, the learned VIII Asssitant Judge, City Civil Court, Chennai, passed an order on 08.11.2004 dismissing the said petition with an observation that no liberty was required for filing a fresh suit for the same relief after the disposal of the other suit O.S.No.9869/1990, which would constitute a different cause of action and thus, in effect granted the very same relief sought for. Therefore, Mohanam, the appellant herein/plaintiff filed a petition in I.A (SR) No.47183 of 2004 under Section 21(2) of CPC praying for determination of pecuniary jurisdiction relating to the suit property as a preliminary issue. The learned VII Asssistant Judge, City Civil Court, Chennai passed an order in the said petition on 18.11.2004 to the effect that the same could be taken up after the disposal of I.A.No.20239/2004, a petition filed for reception of additional written statement in O.S.No.9869/1990. The said IA No.20239/2004 in O.S.No.9869/1990 was allowed on 29.11.2004. But the application filed under Section 21(2) of CPC was not taken on file and on the other hand, the judge suo motu framed a preliminary issue and closed the petition. Hence the plaintiff filed a Civil Revision Petition in C.R.P.No.64/2005 and got stay of all further proceedings in O.S.No.9869 of 1990. On 12.04.2004 it was wrongly represented by the first respondent herein/first defendant that the appellant herein/plaintiff was dragging on the matter and the learned single judge of this court, relying on the said false representation, dismissed the CRP with exemplary cost and also directed striking off of the defence of the appellant herein/plaintiff as a defendant in O.S.No.9869/1990. The appellant herein/plaintiff filed a review petition in Review C.M.P.No.84/2006. When the said review petition was ripe for admission, the learned single judge who passed the order in the CRP retired and the said review petition was subsequently dismissed by this court on 12.12.2006 with the observation that the appellant herein/plaintiff ought to have filed an appeal instead of seeking review. A Special Leave Petition filed by the appellant herein/plaintiff before the Supreme Court in SLP (Civil) No.1779/2007 was also dismissed by the Hon'ble Supreme Court on 02.05.2007 at the admission stage itself. The appellant herein/ plaintiff, as a bonafide purchaser, has purchased the property for value and has also made enormous development by putting up a building with ground + 3 floors. iv) The first respondent/first defendant being a total stranger to the suit properties, had filed the above said suits O.S.Nos.9869/1990 and 9822/1992 without having any locus standi, right or interest or authorisation or authority and procured a decree in O.S.No.9869/1990 by misrepresentation. Therefore, the appellant herein/plaintiff is entitled to a declaration that the ex-parte decree dated 14.06.2006 obtained in O.S.No.9869/1990 by the first respondent/first defendant is null and void and unenforceable. The appellant's/plaintiff's vendor purchased the https://hcservices.ecourts.gov.in/hcservices/ suit property under a sale deed dated 07.01.1985. Only thereafter the mother of the first respondent/first plaintiff, claiming to be the sister of Thayub Begum filed the pauper OP to set aside the sale deed dated 07.01.1985. But the suit was numbered only in 1990. Before the numbering of the suit, the appellant/plaintiff purchased the suit property from his vendor in 1988 itself and he was not aware of the pending litigation. Even assuming that the first defendant derived any redeemable right through her mother over the suit property, the first defendant has no locus standi to seek to set aside the sale deed executed in favour of the appellant's/plaintiff's vendor by the assignee/mortgagee along with the adopted daughter of Thayub Begum, namely Nasreen Begum, who signed it as a confirming party. Further, the act on the part of the first respondent/first defendant filing the suit O.S.No.9822/1992 for redemption of mortgage and withdrawing the said suit after 14 years with liberty to file a fresh suit on the same cause of action is nothing but gross abuse of process of law. Therefore, the appellant/plaintiff is entitled to the above said reliefs sought for in the plaint. 3. The suit was resisted by the first defendant by raising the following contentions in his written statement:- i) Mrs.Thayub Begum, the original owner of the suit property had rented out her house consisting of ground floor, first floor and second floor to one Pukhraj Jain for a monthly rent of Rs.3,000/- exclusive of electricity charges. After the death of Thayub Begum, the tenant stopped making payment of rent to anybody and the said tenant Pukhraj Jain filed R.C.O.P.No.699/1985 as if there was a dispute as to who was the land-lord. The said R.C.O.P. was dismissed. ii) Thayub Begum had executed a simple mortgage deed in favour of Indra Kanvar Bai Taleda for a sum of Rs.9,000/- and paid interest on the said amount till her death in 1978. One Abdul Rahman, in the pretext of redeeming the mortgage property, fraudulently sold the same for a sum of Rs.25,000/- to one Ziauddin on 07.01.1985. The said purchase by Ziauddin and the sale made by him to the appellant herein/plaintiff are fraudulent. Hence the mother of Mohamed Idris, the first respondent/first defendant, filed a suit O.S.No.9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai against Abdul Rahman, Ziauddin and other tenants in respect of the suit properties. The appellant herein/plaintiff, who claims to have purchased the suit property from Ziauddin on 10.06.1998, got impleaded in the above suit seven years after his purchase and he was arrayed as the 6th defendant. Except the appellant herein/plaintiff, who figured as the 6th defendant in the said suit, other defendant in O.S.No.9869/1990 remained ex-parte. Even the appellant herein/plaintiff, who figured as the 6th defendant in O.S.No.9869/1990, later on failed to contest the suit and an ex-parte decree was passed against him. Under such circumstances, the first respondent herein/first defendant, being the lawful owner of the suit property, sold the same to Syed Nazrullah Basha and Nazreen Begum, the respondents 2 and 3/defendants 2 and 3, on 24.08.2007. The said sale is valid and binding on the appellant herein/plaintiff also. Since the https://hcservices.ecourts.gov.in/hcservices/ plaintiff's predecessor-in-title had no legal right to be conveyed under the sale deed executed in favour of the appellant/plaintiff, he has got no locus standi to file the suit C.S.No.434 of 2007 and none of the reliefs sought for in the plaint can be granted. The above civil suit should be dismissed with exemplary costs. 4. Defendants 2 and 3 contested the suit by filing a written statement containing the following averments:- Thayub Begum was the owner of the suit property. After her death, as her only legal heir under Mohammedan Law, the first respondent/first defendant became the owner of the suit property. Appellant's/plaintiff's predecessor-in-title had no interest and had no right to execute a sale deed in favour of the appellant herein/plaintiff. The alleged sale deed dated 10.06.1988 is not a true one and the same is void in law. The appellant herein/Plaintiff has no locus standi to file the suit based on the said sale deed and the present suit is a vexatious one. Respondents 2 and 3/defendants 2 and 3 are the lawful owners of the suit property, having purchased it from the first respondent/first defendant. The first respondent herein/first defendant had filed a suit against the plaintiff in O.S.No.9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai. The suit was decreed against the present appellant/plaintiff on 14.06.2006. Appellant herein/plaintiff has not filed any appeal against the judgment and decree passed in O.S.No.9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai and the said decree will operate as res judicata. Before the said ex-parte decree was passed on an application filed by the appellant herein (6th defendant in the said suit), the court passed an order directing valuation of the suit for the relief of declaration at Rs.2,00,000/- and payment of a deficit court fee of Rs.9,375/- as against the claim made by the appellant herein that the suit ought to have been valued at Rs.47,00,000/- as per his valuation or at least at Rs.20,00,000/- as per the value arrived at by the Amin. The said order was challenged by the appellant herein before the higher court by filing a civil revision petition in C.R.P.No.54/2005. The same was dismissed by the High Court. As against the dismissal of the revision petition, the plaintiff preferred an SLP C.C.No.1779/2009 on the file of the Supreme court and the same was also dismissed. In view of the dismissal of the same, the present suit is not maintainable and it deserves dismissal. None of the prayers made in the plaint can be granted. The appellant/plaintiff has not come to the court with clean hands. Therefore, the suit should be dismissed with exemplary cost of defendants 2 and 3. 5. The appellant/plaintiff filed a reply statement containing the following averments:- The 2nd and 3rd respondents/defendants 2 and 3 having purchased the suit property pendente lite got impleaded as party defendants in the suit with incorrect details. The suit was filed by the appellant herein/plaintiff in April 2007. The first respondent/first defendant sold the suit property to the respondents 2 and 3/defendants 2 and 3 on 24.08.2007 under a sale https://hcservices.ecourts.gov.in/hcservices/ deed bearing document No.881/2007. The said sale deed was a fraudulent one as the same had been brought into effect after the receipt of the suit summons. The first respondent/first defendant was a stranger to the suit property and he had no redeemable right over the suit property. However, he fraudulently obtained a decree from the City Civil Court, Chennai in O.S.No.9869/1990 on 14.06.2006. The validity of the said decree passed in the said suit is being challenged by the plaintiff in C.S.No.434/2007 which is a comprehensive suit. For execution of the decree obtained in O.S.No.9869/1990, the first defendant had filed E.P.No.2584/2007 seeking delivery of possession describing the appellant/plaintiff to be a tenant, with full knowledge that such an averment is false. In suppression of pendency of the present suit and also the execution proceedings, a sham and nominal document was executed by the first defendant in favour of respondents 2 and 3/defendants 2 and 3 for a throw-away price of Rs.12.00 Lakhs. An inspection of the property was sought to be conducted by the Inspecting Officer, but the same was resisted by the appellant/plaintiff on the premise that he was in possession of the suit property. The value of the land on the date of sale in favour of respondents 2 and 3/defendants 2 and 3 was Rs.1,800/- per sq.ft. Even the land value as per the guideline value fixed by the Registration Department comes to Rs.15,12,000/-. The building was also valued at a lower rate of Rs.7,01,330/-. The respondents 2 and 3/defendants 2 and 3 paid a sum of Rs.81,072/- by way of deficit stamp duty and got the document numbered and registered despite the objections raised by the appellant/plaintiff. The first respondent/first defendant falsely declared as if he delivered vacant possession of the suit property to the purchasers. He has also falsely declared that he paid all public outgoings in respect of the suit properties. This court had also granted interim injunction restraining the defendants from proceeding with the execution petition. As such, a false recital was incorporated in the sale deed as if possession was handed over to the purchasers, namely respondents 2 and 3/defendants 2 and 3. The first respondent/first defendant, who had no locus standi to file the suit O.S.No.9869/1990 obtained a decree in the said suit by playing a fraud upon the court and by misrepresentation. The husband, daughters and sons of Thayub Begum, the original owner/original mortgagor of the suit property are alive. Therefore the first defendant had got no right or authority to deal with the suit property. Even though the appellant/plaintiff has valued the suit property at Rs.47.00 Lakhs, on inspection, the Amin of the court fixed the value of the suit property at Rs.20.00 Lacs as on 08.09.2004. But, in the sale deed executed in favour of respondents 2 and 3/defendants 2 and 3 in the year 2007, the sale consideration is quoted as 12.00 Lakhs, which included the cost of the third floor construction also. The appellant/plaintiff has been advised to state that since the said sale deed executed by the first respondent/first defendant in favour of the respondents 2 and 3/defendants 2 and 3 is sham and nominal besides being hit by doctrine of lis pendens, he need not challenge the same. For all the reasons stated above, the claim of the respondents 2 and 3/defendants 2 and 3 through the first defendant is liable to be rejected in its entirety. https://hcservices.ecourts.gov.in/hcservices/ 6. Based on the above said pleadings, the following issues were framed:- 1.Whether the 1st Defendant in the above suit is having redeemable right over the plaint schedule property? 2.Whether the Plaintiff is entitled to the relief of the declaration that he is the absolute owner of the suit property? 3.Whether the plaintiff is entitled to the relief of cancellation of exparte decree dated 14.6.2006 passed in the suit in OS No.9869/1990 by the VII Assistant City Civil Judge, Chennai, since the same was obtained by alleged misrepresentation on the part of the 1st defendant herein? 4.Whether the Plaintiff approached this court with clean hands? 5.Whether the 1st Defendant has got title and right to convey the property in favour of the second and third defendants? 6.Whether the plaintiff is entitled to the relief of permanent injunction to protect his possession over the suit property? 7.Whether the subsequent sale effected by the 1st defendant in favour of the Defendants 2 and 3 during pendency of the suit is hit by the doctrine of 'lis pendens' and therefore non-est in law? 8.Whether the suit is not within the time of limitation? 7. In the trial, the appellant/plaintiff figured as the sole witness (P.W.1) and marked 42 documents as Exs.P1 to P42, on his side. On the side of the respondents/defendants, the defendants 1 and 2 figured as DWs.1 and 2 respectively and 10 documents were marked as Exs.D1 to D10. At the conclusion of trial, the learned single judge considered the pleadings and evidence in the light of the points raised on both sides in the arguments advanced by the counsel and upon such consideration, came to the conclusion that the appellant/plaintiff was not entitled to any of the reliefs sought for in the plaint and dismissed the suit with cost by judgment and decree dated 26.07.2010. 8. Aggrieved by and challenging the same, the unsuccessful plaintiff in the civil suit C.S.No.434/2007 has filed the present Original Side Appeal on the grounds set out in the Memorandum of Grounds of Original Side Appeal. 9. The points that arise for consideration in this appeal are: i) Whether the appellant/plaintiff is entitled to the relief of cancellation of exparte decree dated 14.6.2006 passed in the suit in OS No.9869/1990 by the VII Assistant City Civil Judge, Chennai, since the same was obtained by alleged misrepresentation on the part of the 1st respondent/1st defendant herein? ii) Whether the appellant/plaintiff is entitled to challenge the decree dated 14.06.2006 passed in O.S.No.9869/1990 by the VII Assistant City Civil https://hcservices.ecourts.gov.in/hcservices/ Judge, Chennai, on any other vitiating factors, especially on the ground that denial of opportunity to cross-examine witnesses examined on the side of the plaintiff therein even though defence in the said suit had been struck off?