IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.09.2009 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN S.A.No.21 of 2008 C.A.Khabeer .. Appellant/Plaintiff vs. 1. The Sub-Registrar Tiruporur, Chengalput Taluk Kancheepuram District. 2. The Tahsildar of Chengalput Taluk Chengalput Town, Kancheepuram District. 3. The Govt. of Tamil Nadu Rep. by Chief Secretary Chennai – 600 009. 4. T.Srinivasan Managing Director M/s. Balachandra Builders (P) Ltd., Chennai – 600 020. .. Respondents/Defendants PRAYER : Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree, dated 30.08.1006 made in A.S.No.555 of 2005 on the file of the Additional District Judge / Fast Tract Court – V, Chennai, confirming the Judgment and Decree, dated 28.07.2005 made in O.S.No.1076 of 1999 on the file of the III Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.C.A.Khabeer (party-in-person) For respondents : Mr.V.Srikanth Govt. Advocate for R1 to R3 Mr.P.K.Rajagopal for R4 J U D G M E N T The second appeal has been preferred against the Judgment and Decree, dated 30.08.1006 passed in A.S.No.555 of 2005 on the file of the Additional District Judge / Fast Tract Court – V, Chennai, confirming the Judgment and Decree, dated 28.07.2005 passed in O.S.No.1076 of 1999 on the file of the III Assistant Judge, City Civil Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant herein was the plaintiff before the trial court. The reliefs sought for in the suit by the appellant herein as plaintiff are as follows : "(1) adjudging that the Decree, dated 11.11.1989 passed by the City Civil Court, Chennai, in O.S.No.8667 of 1985 declaring the plaintiff title and ownership and ordering permanent injunction prohibiting the first defendant, Sub-Registrar from registering sale deeds and other documents except sale deeds and documents to be executed by the plaintiff herein and prohibiting the second defendant-Tahsildar from transferring ownership in the permanent Land Revenue Registry (viz Patta, Chitta, Adangal etc.,) except on the application to be executed by the plaintiff herein for transfer and issue of the same shall be binding upon the defendants herein and the Public Officer and thereby any instruments or documents registered in the Books under the Registration Act from the year 1973 and any transfer of ownership in the permanent Land Revenue Registry (viz Patta, Chitta Adangal etc.,) in violation of the decree passed in O.S.No.8667 of 1985 and in contravention of the 8.52 of Transfer of Property Act are void and are cancelled in respect of the suit mentioned properties and directing to deliver the possession of the properties by the defendants to the plaintiff in respect of which the documents transferring the ownership have been cancelled or by selling the properties and paying sale proceeds to the plaintiff within three months for registering illegal documents and transferring ownership in defiance to the permanent injunction passed in O.S.No.8667 of 1985. (ii) Issuing consequential permanent injunction under the S.38 and S.40 of the Specific Reliefs Act, 1963 directing the defendants 1 and 2 and their subordinate officers to notify in the Books Indexes Volumes and permanent land ownership registers maintained in their office, the facts of the decree dated 11.11.1989 passed by the City Civil Court, Chennai in O.S.No.8667 / 1985 for public information and to transfer and issue patta pass books under the T.N.Patta Pass Book Act, 1986 applied in the application, dated 02.12.1996 and dated 17.05.1997 and to furnish General Encumbrance Certificate and copy of a document applied in the Applications No.1598/97 and No.336/1997 within two weeks together with directions to pay damages by the defendants 1 and 2, Rs.5,00,000/- each for reasons stated supra in paragraph number 11 and / or to be paid by the third defendant; besides other damages for recovering the properties and directing the defendants 1 and 2 to file certificate within three months in E.P.No.71/95 in O.S.No.8667/85 on the file of Subordinate Judge Court at Chengalput, certifying cancellation of all documents / instruments https://hcservices.ecourts.gov.in/hcservices/ registered from the year 1973 in respect of the suit properties. (iii) to pay costs of suit u/s. 35-A CPC, pre-suit notices cost Rs.300/- and incidental expenses at Rs.200/- per hearing in the suit by the defendants 1, 2 and 3. (iv) directing to draw the decree in the suit in English and to send copy of the decree to the defendants 1 and 2 for notifying on the copy of instruments contained in the Books under the Indian Registration Act, as required under S.31(2) of the Specific Reliefs Act, 1963." 3. Mr.C.A.Khabeer, the appellant herein appeared in person and argued the case. According to the appellant, the suit was dismissed by the trial court on the following three grounds 1) want of jurisdiction 2) the claim was barred by limitation and 3) no cause of action to maintain the suit. The appellant herein placed his arguments that the courts below have got territorial jurisdiction to try the suit filed by the appellant / plaintiff. It is seen that there are five items of properties described in the schedule of properties, out of which the properties stated as schedule A,B,C and D properties are situated in the village of Padur, Kelambakkam Firkha, Chengalput Taluk, Kancheepuram District. Admittedly, the said suit properties are outside the territorial jurisdiction of the courts below. The schedule E property is described as House and ground bearing D.No.22, Narayana Sarang Garden Street, Seethakathi Nagar, Chennai -1. 4. Learned counsel appearing for the respondents submitted that the suit has been filed without territorial jurisdiction. Mr.P.K.Rajagopalan learned counsel appearing for the fourth respondent drew the attention of this Court to the copy of the plaint. According to the learned counsel, admittedly Schedule A,B,C and D properties are situated in Chengalput District, outside the territorial jurisdiction of the City Civil Court, Chennai. So far as Schedule-E property is concerned, though the same is situated in Chennai, there is no relief sought for in respect of the said schedule of property and only for the purpose of creating jurisdiction, the plaintiff has added the said property, which is not legally sustainable and therefore, the suit filed before the trial court is without jurisdiction. 5. As argued by the learned counsel appearing for the respondents, the main relief sought for by the plaintiff in the suit is to adjudge the decree, dated 11.11.1989 passed by the City Civil Court, Chennai in O.S.No.8667 of 1985 declaring the plaintiff's title and ownership and for ordering permanent injunction, prohibiting the first defendant, Sub-Registrar from registering any sale deed or other documents, except the sale deeds and documents to be executed by the plaintiffs and prohibiting the second defendant-Tahsildar from transferring ownership and also permanent injunction restraining the authority from issuing Patta, Chitta, Adangal etc., except on the application by the plaintiff herein for transfer. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel appearing for the respondents submitted that there is no cause of action to maintain the suit and the main relief sought for to adjudge the earlier decision rendered by the court below is also not legally maintainable and other consequential reliefs are not sustainable, hence, the suit was rightly dismissed by the trial court and the appeal was also dismissed by the first appellate court. 7. Mr.P.K.Rajagopal, learned counsel appearing for the fourth respondent drew the attention of this Court to Ex.A.1, copy of the decree passed in O.S.No.8667 of 1985 on the file of the VI Assistant Judge, City Civil Court, Chennai. It is seen that the suit has been filed by the plaintiff herein along with two others against one Mohd. Sadiq and ten others only, the 10th and 11th defendants are Sub- Registrar, Tiruporur and Tahsildar of Chengalpattu District respectively. The defendants 1 to 8 therein were called absent and set exparte in the suit. The VI Assistant Judge, City Civil Court, decreed the suit, granting permanent injunction and declaration of title as prayed for in the said suit, since the real contesting parties had failed to appear. According to the learned counsel appearing for the respondents, the said suit was a collusive suit filed by the appellant herein along with the other plaintiffs, that was the reason for the defendants 1 to 8 therein remained absent and were set exparte. According to him, no supporting document was marked for establishing the claim of the plaintiff, hence, he cleverly suppressed the copy of the Judgment therein, without marking the same as a document. 8. As per law, there is no necessity for any court to adjudge the earlier decree passed by the very same court, however, with an ulterior motive, the appellant / plaintiff filed the suit in O.S.No.1076 of 1999, seeking a decree to adjudge the earlier decree passed in O.S.No.8667 of 1985, dated 11.11.1989, since the decree was a collusive decree obtained without any supporting document. The defendants 1 to 8 in the earlier suit were not arrayed as defendants in this suit for the reasons best known to the plaintiff. As contended by the learned counsel appearing for the respondents, even a copy of the judgment relating to O.S.No.8667 of 1985 has not been filed, with an ulterior motive. As per the pleadings of the plaintiff, the relief sought for in the suit is only redundant and as such there is no cause of action to maintain the suit. 9. Mr.C.A.Khabeer, the appellant /plaintiff, who appeared in person has not stated as to how the prayer, seeking a decree to adjudge the earlier decree, dated 11.11.1989 passed by the very same court is legally maintainable. Similarly, there is no explanation as to why a copy of the Judgment rendered in the said suit in O.S.No.8667 of 1985 on the file of the VI Assistant Judge, City Civil Court, Chennai was not filed before the courts below, though the reliefs sought for are relating to the Judgment and Decree passed in the said suit. 10. As rightly contended by the learned counsel appearing for the respondents, after getting a decree, the appellant / plaintiff herein could have filed only Execution Petition or Contempt Application, if there was any violation by any to the party to the https://hcservices.ecourts.gov.in/hcservices/ proceedings. However, without seeking any remedy that would be available under law, the appellant / plaintiff has come forward with the present suit, seeking relief to adjudge the earlier decree, dated 11.11.1989, with a view to get a decree against the fourth defendant, who was not a party to the earlier suit. 11. Mr.V.Srikanth, learned Government Advocate appearing for the respondents 1 to 3 submitted that in the earlier suit, the third respondent, Government of Tamil Nadu, Rep. by Chief Secretary, Chennai – 9, was not arrayed a party, however, the Chief Secretary was made as party without any justifiable reason in the suit. The appellant / plaintiff, appeared in person could not say the reason as to why the third respondent, the Government of Tamil Nadu, Rep. by Chief Secretary, Chennai – 9 was added in the suit as third defendant and how the decree passed in O.S.No.8667 of 1985 is binding on the third and fourth respondents, admittedly when they were not parties to the earlier suit. 12. It has been admitted by the appellant / plaintiff that the earlier suit in O.S.No.8667 of 1985 was decreed on 11.11.1989 itself. Nearly 9 years after the said decree, on 26.11.1998, the plaintiff filed the present suit in O.S.No.1076 of 1998 to adjudge the earlier decision, for which there is no satisfactory explanation from the appellant / plaintiff. However, the appellant / plaintiff, in support of his contention, relied on the following decisions : 1. Ishwardas vs. State of M.P, AIR 1979 SC 551 2. R.S.D.V.Finance Co., Pvt., Ltd., vs. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094 13. In R.S.D.V.Finance Co., Pvt., Ltd., vs. Shree Vallabh Glass Works Ltd., reported in AIR 1993 SC 2094, the Hon'ble Supreme Court has held that where there had been no jurisdiction for the court to try a suit, it could have returned for the plaint to be presented in the proper court. According to the learned counsel appearing for the respondents, the said decision is not applicable for the case on hand, since the suit itself is not legally maintainable. 14. The decisions cited by the appellant/plaintiff have no relevancy to the facts and circumstances of this case. The Hon'ble Apex Court in the decision reported in AIR 1993 SC 2094 (cited supra) has held that the suit shall not be dismissed solely on the ground "for want of jurisdiction" and the plaint be returned to be presented before the proper Court, under Order 7 Rule 10 CPC, if it is legally maintainable before some other forum. If the suit is filed without territorial jurisdiction or pecuniary jurisdiction, it is the duty of the Court to return the plaint under Order 7 Rule 10 CPC to be presented in the proper forum, if the relief sought for is legally sustainable. However, if there is no cause of action to maintain a suit and the relief sought for is not legal, the Court below need not return the plaint to be presented before any other forum, the same has to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 15. In the instant case, the main relief sought for by the appellant / plaintiff is to adjudge the decree dated 11.11.1989 passed by the City Civil Court, Chennai in O.S.No.8667 of 1985. As per the averments made in the plaint, the said suit was decreed in favour of the plaintiff herein and two others, against 11 defendants. The second plaintiff in the said suit, leaving the defendants 1 to 9 in the suit, by impleading Government of Tamil Nadu, represented by its Chief Secretary and also the fourth defendant, has filed the suit, which is not legally sustainable and it is a clear abuse of process of court. 16. In Ishwardas vs. State of M.P, reported in AIR 1979 SC 551, the Hon'ble Apex Court has held thus : "In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim." The said decision is also not relevant for the disposal of the suit or second appeal on hand. 17. Adjudging the earlier decree is not legally required, which is redundant. Though the earlier suit in O.S.No.8667 of 1985 was decided by the 6th Assistant Judge, City Civil Court, Chennai on 11.11.1989, pursuant to the decree, the plaintiff herein had neither filed any execution petition nor initiated any contempt proceedings against any person, who was a party to the suit. Strangely, 14 years after filing of the earlier suit, the plaintiff has come forward with a new case and unsustainable plea to adjudge the earlier decree. The other consequential prayers are also not legally sustainable, however, the suit was filed for the reasons best known to the plaintiff, without any legally sustainable cause of action. He has not even produced the copy of the judgment relating to the aforesaid earlier suit. 18. Mr.P.K.Rajagopal, learned counsel appearing for the fourth respondent argued further that the appellant / plaintiff has shown various properties as Schedule-A, B, C and D, situated at Padur Village, Kelambakkam Firka, Chengelput Taluk, Kancheepuram District, outside the jurisdiction of the court below and by adding E-Schedule of the property in Chennai, without seeking any relief with reference to the E-Schedule of the property against the defendants, only with a view to create territorial jurisdiction for the purpose of filing the suit, which is against law. 19. Learned counsel appearing for the fourth respondent drew the attention of this Court to the evidence of the appellant, who has deposed as PW1. In the evidence, he has admitted that A, B, C and D schedule properties are situated in Padur Village, Kancheepuram District, outside the jurisdiction of the courts below and only E- Schedule of property is situated in the city of Chennai. However, the same belongs to one C.A.Hafeez and not the appellant / plaintiff, even as per the plaint. He has also admitted that on the date of filing the suit, E-Schedule of the property was not in the name of the plaintiff. In the suit, no relief was sought for in respect of E-Schedule of property. He has also categorically admitted in the cross-examination that he has not claimed any declaration of title as https://hcservices.ecourts.gov.in/hcservices/ relief, but seeks decree to adjudge the earlier judgment rendered by the same Court. He has also admitted that there is no supporting documents filed by him to show that the suit properties are his ancestral properties as stated by him. Admittedly, the fourth defendant was not a party to the suit in O.S.No.8667 of 1985. He has also admitted the fact that there is no supporting documents filed by him to show that Iquunissa, Gulam Rasool, Gulak Mohideen and Mohammed Sahid are the ancestors of the appellant / plaintiff to claim the property. 20. As contended by the learned counsel appearing for the respondents/defendants, if there is any legal right in the schedule of property the appellant/plaintiff could have filed a proper suit, seeking appropriate relief that are legally available to him, before the proper forum having jurisdiction with supporting documents. The learned counsel appearing for the respondents / defendants submitted that the earlier suit was a collusive suit filed by the appellant / plaintiff and others, with the defendants 1 to 9 therein and only with a malafide intention of raising a frivolous claim, based on the earlier decree, he has filed the present suit, by impleading the Government of Tamil Nadu, represented by Chief Secretary as third defendant and also the fourth defendant herein, though they were not parties to the earlier suit. The suit has been filed without any legal cause of action and the relief sought for is also legally not sustainable. As contended by the learned counsel appearing for the respondents, seeking a decree to adjudge the earlier judgment, by impleading the Government of Tamil Nadu, represented by its Chief Secretary and the fourth respondent / fourth defendant , who were not parties to the earlier suit, is a clear abuse of the process of the Court. Hence, I am of the considered view that the suit, as well as the appeals have to be construed only as an abuse of process of the Court. There is no substantial question of law involved for admitting the second appeal, under section 100 of C.P.C and hence, the Second Appeal is liable to be dismissed with costs. 23. In the result, the Second Appeal is dismissed with costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar tsvn To 1. The Additional District Judge / Fast Tract Court – V Chennai. 2. III Assistant Judge, City Civil Court, Chennai. 3. The Record Keeper, VR.Section, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ + 1 CC to Special Government Pleader,SR.47951 + 1 CC to Mr.C.A.Khabeer,Party in person,SR.47864 + 2 CC to Mr.P.K.Rajagopal,Advocate,SR.47937,48171 S.A.No.21 of 2008 VS(CO) EM/5.10 https://hcservices.ecourts.gov.in/hcservices/