IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 13.06.2011 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL C.R.P.(PD) No.3617 of 2009 and M.P.No.1 of 2009 1.Vijayan 2.Muthulakshmi ... Petitioners Vs 1.Kolandaiammal 2.Malarkodi ... Respondents PRAYER: This Civil Revision Petition is filed under Article 227 of Constitution of India as against the Fair and decretal order dated 12.06.2009 made in I.A.No.563 of 2009 in O.S.No.743 of 2007 on the file of the Principal District Munsif Court at Salem. For Petitioners : Ms.P.T.Asha for M/s.Sarvabhauman Associates For Respondents : Ms.G.Meena for M/s.T.Karunakaran for R1 ORDER
The Revision Petitioners/Respondents/Petitioners have filed the present Civil Revision Petition as against the order dated 12.06.2009 in I.A.No.563 of 2009 in O.S.No.743 of 2007 passed by the Learned Principal District Munsif, Salem.
2.The Respondents/Petitioners/Plaintiffs have filed I.A.No.563 of 2009 under Order 6 Rule 17 and Section 151 of CPC praying permission of this Court to amend the Plaint as mentioned thereunder. In the affidavit in I.A.No.563 of 2009, the Respondents/Plaintiffs have among other things mentioned that the suit property consist of 1960 Sq.ft. of vacant land with a thatched house and asbestos shed bearing Door No.32. The property is situate in New T.S.No.15 and Old T.S. No.241. The Respondents/Plaintiffs before filing O.S.No.743 of 2007 have already filed a suit for declaration and permanent injunction in respect of the suit property against the Defendants to declare the right and title to the suit property and consequently, restraining the Defendants from interfering with the possession in O.S.No.2310 of 2004 on the file of the Additional District Munsif, Salem. The trial Court in O.S.No.2310 of 2004 has held that the father of the first defendant viz., Vaiyapuri, one of the Legal Representatives of Kundumaniammal is entitled to equal share like his mother-in-law Muniammal. As against the said Judgment and Decree passed by the Learned Additional District Munsif, Salem, A.S.No.73 of 2007 has been filed before the Learned Principal Sub Judge, Salem and the said Appeal has been dismissed on 31.12.2008, thereby, the trial Court Decree in O.S.No.2310 of 2004 has been affirmed.
3.Apart from the above, the Respondents/Plaintiffs have also averred in I.A.No.563 of 2009 that they have been advised to give up the claim for the suit property and to have half share which belongs to Muniammal and therefore, they have decided to have partition of the suit property, inasmuch as it is no longer possible for the continuous litigation endlessly. Accordingly, the present application has been projected for amendment of Plaint for partition by claiming half share in the property.
4.The Revision Petitioners/Respondents/Defendant in their detailed counter have averred that the Plaintiffs have no right whatsoever over the petition mentioned property and are not in possession of the same. Moreover, a similar suit between the same parties praying for the same relief and same cause of action have been projected in O.S.No.2310 of 2004 on the file of the I Additional District Munsif, Salem and the same has been dismissed on 01.02.2007 on merits. Subsequently, A.S.No.73 of 2007 has been preferred by the Plaintiffs and the same has been dismissed by the Learned Principal Sub Judge, Salem.
5.The main contention advanced on behalf of the Revision Petitioners/Defendants is that the findings of the trial Court in O.S.No.2310 of 2004 are against the Petitioners/Plaintiffs and therefore, it is not open to them to plead once again in their affidavit in I.A.No.563 of 2009 and the same is not maintainable in law.
6.Advancing her arguments, it is the submission of the Learned Counsel for the Petitioners that the amendments sought for by the Plaintiffs in I.A.No.563 of 2009 are clearly hit by Order 2 Rule 2 of CPC.
7.Another plea taken on behalf Revision Petitioners is that the proposed amendment of the Plaint as prayed for in I.A.No.563 of 2009 will alter the character of the suit.
8.It is to be pointed out that a legal plea of bar raised by the Revision Petitioners under Order 2 Rule 2 of CPC is a technical plea. It tends to defeat justice and to deprive an individual of a legitimate rights. Hence utmost care and caution are to be taken by the trial Court to see whether a complete identity of cause of action is established by the person, who comes before the Court.
9.A term ’cause of action’ means every fact which is essential to establish to support a right or obtain Judgment. Another meaning of cause of action is that every fact which will be necessary for the Plaintiffs to prove if traversed. The plea of bar under Order 2 Rule 2 is to be established only if the defendant files in evidence the pleadings of the previous suit and thereby establishes the identity of the cause of action as well as the identity of the parties.
10.Order 2 Rule 2 of CPC is not a meaningless procedural technicality. The purpose is to prevent plurality of proceedings, in the considered opinion of this Court. As a matter of fact under Order 2 Rule 2 of CPC complete identity of cause of action is very much necessary.
11.This Court aptly points out the decision Gurbux Singh v. Bhooralal AIR 1964 Supreme Court 1810, wherein it is held that ‘the plea of bar under Order 2 Rule 2(3) of CPC is to be established satisfactorily by the defendant and cannot be presumed on the basis of inferential reasoning and further that the defendant is to file in evidence the pleadings of the previous suit’.
12.Indeed, Order 2 Rule 2 of CPC is based on the rule of law that no man shall be vexed twice for one and the same cause. As a matter of fact, Order 2 Rule 2 of CPC is penal in nature and is to be construed strictly.
13.As far as the present case is concerned, the trial court in I.A.No.563 of 2009 in its order dated 12.06.2009 in Paragraph 3 has stated as follows:
“… In the consideration of this Court does not change the character and nature of the suit. If a new prayer is added instead of filing a new case, that does not affect the character of the suit. Instead of it to avoid the multiplicity of proceedings, New factum were not pleaded, the specific events has been pleaded and on that score also the petitioners wants to amend the plaint. Considering the nature and circumstances of the case and interest of justice, this Court is of the considered view that the amendment petition is to be allowed and this petition is allowed.”
14.The trial Court while passing the order in I.A.No.563 of 2009 has not adverted to specifically about the detailed averments made in the counter to I.A.No.563 of 2009 filed by the Revision Petitioners. In the said counter, the Revision Petitioners have specifically taken the plea of present suit being barred under Order 2 Rule 2 of CPC and also they have taken a categorical stand that the amendment of Plaint sought for by the Plaintiffs is totally inconsistent with the earlier pleadings put forth by them etc. Also, the trial Court has not appreciated the Decree in O.S.No.2310 of 2004 as well as the Decree in A.S.No.73 of 2007 in proper material perspective. When a specific plea is taken on behalf of the Revision Petitioners in Paragraph 9 of the counter to I.A.No.563 of 2009 to the effect that the Plaintiffs have come forward to file I.A.No.563 of 2009 to escape from the clutches of Order 2 Rule 2 of CPC, the trial Court is duty bound to deal with the matter and to render its finding whether the plea of barred suit under Order 2 Rule 2 is to be accepted or otherwise. But that aspect of the matter has not been traversed upon by the trial Court while passing the order in I.A.No.563 of 2009, dated 12.06.2009, except for the fact that the trial Court has merely observed that new factum were not pleaded and specific events have been pleaded etc., and accordingly, allowed the I.A.No.563 of 2009 praying to amend the Plaint.
15.An order of trial Court must be a reasoned one. A bare minimum of outline of process of reasoning should be there. A reasoned order will have the appearance of justice.
16.On going through the order of I.A.No.563 of 2009, dated 12.06.2009, this Court is of the considered view that the said order is bereft of qualitative and quantitative details and it is not a speaking reasoned order traversing in necessary details about the contentions raised on behalf of the Revision Petitioners/Defendants. An unreasonable order may be just and valid from the point of view of persons, who obtained the same. But to the other aggrieved persons, the same remains to be an unjust one. Therefore, this Court, in the interest of justice, sets aside the order passed by the trial Court in I.A.No.563 of 2009 and allows the present Civil Revision Petition to secure the ends of justice.
17.In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.563 of 2009 is set aside for the reasons assigned by this Court in this Revision. Further, the trial Court is directed to pass a dispassionate reasoned order after hearing both sides and it is open to the parties to raise all factual and legal pleas and moreover, the trial Court is to take into account all the ingredients of Order 2 Rule 2 of CPC and to pass appropriate order in accordance with law, of course, after providing due opportunity to both sides and in any event within a period of two weeks from the date of receipt of a copy of this order. Connected miscellaneous petition is closed.
mps
To
The Principal District Munsif,
Salem