IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/02/2006
Coram
THE HON'BLE Mr.JUSTICE M.JAICHANDREN
C.R.P.(NPD)No.608 of 2003
and
C.M.P.No.6518 of 2003
Sudalayandi ... Petitioner
-Vs-
1. The Executive Officer,
Sthlalasayana Perumal Thirukoil
Mahabalipuram.
2. The District Collector,
Kancheepuram.
3. The District Revenue Officer,
Kancheepuram.
4. The Revenue Divisional Officer,
Chengalpattu.
5. The Tahsildar,
Thirukalukundram Taluk Office,
Thirukalukundram. ... Respondents
Civil Revision Petition under Article 227 of The Constitution of India
to set aside the Order dated 22.01.2003 and made in OS.SR 1189 of 2002 on the
file of Principal Sub Court, Chengalpattu.
!For petitioner : Mr.N.A.Nissar Ahmed
^For R1 : Mr.V.Raghavachari
For R2-R5 : M/s.Dakshayani, AGP
:O R D E R
It is stated by the learned counsel for the petitioner, that
when the suit papers were presented before the sub Court, Chengalpattu, it was
returned by the Court on 22.01.2003 with the following endorsement:
“22.01.2003 Returned : The Honourable High Court, Madras, has directed in
W.P.33663/2002 dated 20.09.2002 that “if the petitioners are so advised they
can seek declaration of title by amending the prayer in the suit in O.S.104/88
on the file of District Munsif Court Thirukalukundram or work out their
appropriate reliefs independently”
In this plaint the relief is for declaring the plaintiffs title over
the suit property and for consequential permanent injunction. In the reply of
the return, dated 07.01.2003, it has been stated as this suit is for
declaration of title and for possession which is not in accordance with the
plaint prayer. The plaint prayer does not comply with the direction of the
Honourable High Court, Madras. When the plaint prayer is for declaration and
for injunction the original plaint has to be amended as per the directions of
the Honourable High Court.
Hence the plaint is returned with a direction to comply with the
orders of the Honourable High Court, Madras.
Time Two Weeks.”
2. The learned counsel for the plaintiff in the suit made a
detailed endorsement while representing the papers on 07.01.2003 which is as
follows :
“It is submitted that as per the Honourable High Court of Judicature
of Chennai, the plaintiff has two options. 1st option is “in para 4 that if
the plaintiffs are so advised they can seek declaration of title by amending
the prayer in the lower court bare injunction suit or work out their
appropriate relief independently” and second option is in the result of the
writ petition “the writ petition is dismissed without prejudice to the right
of the petitioners to work out their rights with regard to title and
possession over the suit property in an appropriate civil proceedings before
the competent civil court.
Hence the plaintiff as chosen the second option to file a suit for declaration
of title and possession.
It is submitted that there is no question of resjudicata. The
resjudicata comes only the matter or relief was tried by the Court. Here the
relief is different, parties are changed between bare injunction suit and the
suit. It is submitted that the lower court bare injunction suit was dismissed
for default hence there is no question was resjuidcata and further the
plaintiff has assured in the suit he will withdraw the lower court suit after
numbering the above suit. Hence the question of resjudicata does not arise.
It is submitted that if as per your order the plaintiffs are amending the
lower court it is very difficult to amend the not only the prayer but he
should amend from the cause title to prayer including all the paragraphs in
the suit because the lower court suit is bare injunction but this suit is
declaration of title and for possession.
It is therefore prayed that this Honourable High court may be pleased
to number the suit urgently because of in lower court bare injunction suit was
dismissed for default and further the 1st defendant at any time may evict with
their power influence and their men along with their higher officials if the
suit is not numbered the plaintiff will be evicted immediately or otherwise
suitable orders may be passed.”
3. Inspite of that, the learned Principal Judge passed the
impugned order on 22.01.2003 returning the plaint with the direction to comply
with the orders of this Court granting two weeks time for compliance.
4. It has been pointed out by the learned counsel for the
petitioner as well as the counsel for the respondent that the High court’s
direction is found in para 4 of the order, dated 20.09.2002, in W.P.No.33 663
of 2002 and it reads as follows :
“In the instant case, admittedly the petitioners have filed a suit
O.S.No.105 of 1998 before the learned District Munsif, Thirukalukundram, for a
bare injunction. If the petitioners are so advised, they can seek declaration
of title by amending the prayer in the said suit or work out their appropriate
reliefs independently. In any event in view of the ratio laid by this Court
in KUPPUSWAMI NAINAR v. THE DISTRICT REVENUE OFFICER reported in 1995(1)MLJ
426, it may not be proper for this Court to go into such dispute between the
petitioners and the fifth respondent either with regard to their title or
possession.
In the result the writ petition is dismissed without prejudice to the
right of the petitioner to work out their rights with regard to title and
possession over the suit property in an appropriate civil proceedings before
the competent civil court, within eight weeks from today and till then there
shall be an order of status quo.”
5. On hearing the arguments of the learned counsel for the
petitioner as well as the respondents and on a perusal of the documents filed
in support of Civil Revision Petition, this Court finds it appropriate to set
aside the order passed by Learned Principal Sub Judge, Chengalpattu on
22.01.2003, returning the plaint to comply with the orders of this Court, and
to direct the petitioner to re-present the plaint before the District Munsif
Court, Thirukalukundram, with all the necessary papers and on such
re-presentation, the learned District Munsif, Thirukalukundram, is directed to
take appropriate steps to hear the suit following the procedure established by
law and dispose of the same within a period of six months from the date of
receipt of a copy of this order.
6. At this stage, the learned counsel for the petitioner, prays
for return of the original plaint which has been filed before this Court. It
is ordered that the original plaint be returned to the learned counsel for the
petitioner to comply with the directions made in this order.
7. The learned counsel for the respondent points out that in
Paras 5 and 11 of the plaint filed in OS.SR.No.1189 of 2002, the reference to
the direction of the High Court to file a suit may be appropriately amended.
8. With the above directions, the Civil Revision Petition is
allowed. Consequently, connected Civil Miscellaneous Petition is closed. No
Costs.
svki
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