T. Radhakrishnan S/O. Thiru v. N. Suresh

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.04.2016 CORAM :

The Hon'ble MR.SANJAY KISHAN KAUL, CHIEF JUSTICE AND The Hon'ble MR.JUSTICE M.M.SUNDRESH O.S.A. No.47 of 2016 T.Radhakrishnan .. Appellant rep by his Power Agent S.S.Balakrishnan -vs1.N.Suresh 2.N.Ranjani 3.S.Chitra Swaminathan .. Respondents Appeal filed under Clause 15 of the Letters Patent read with Order 36 Rule 9 of O.S.Rules against the judgment and decree dated 21.01.2014 passed in Application No.2531 of 2013 in C.S.No.43 of 2013 on the file of original side of this Court. For Appellant :

Mr.K.Vellayaraj For Respondents :

Mr.V.Bhiman for M/s.Sampath Kumar Associates

J U D G M E N T

(Judgment of the Court was delivered by The Hon'ble Chief Justice) Admit. Mr.V.Bhiman, learned counsel, accepts notice for the respondents.

2.Heard the learned counsel for parties.

3.The suit property, a vacant land comprised in S.No.317/1 (part) bearing Plot No.80, in approved layout LPDM/DTP No.16/1973 undivided share measuring an extent of 2400 sq. ft. situated at Velacherry Village, Mambalam-Guindy Taluk, was subject matter of an earlier suit filed by the appellant for injunction, being O.S.No.6393 of 2012, in the City Civil Court, Chennai, in which an application for interim relief was filed.

In the said suit, the respondents claimed title placing reliance upon registered documents. Thus, the appellant thereafter filed a title suit in C.S.No.43 of 2013 since the earlier one was filed in ignorance of the claim made by the respondents to the ownership of the suit property without the knowledge of the appellant. In that suit, the respondents took a plea of the suit being barred by Order II Rule 2 of the Code of Civil Procedure, 1908, by filing an interlocutory application and the learned Single Judge, vide the impugned order dated 21.01.2014, has been pleased to allow the application.

4.It cannot be seriously disputed before us that a mere suit for injunction without the knowledge of the title of the respondent would not be a bar to a title suit. In a sense, the earlier suit has become infructuous and the appellant ought to have withdrawn that suit so as to file a comprehensive suit before the original side of this Court.

5.Learned counsel for the appellant states that he is now willing to withdraw that suit (being O.S.No.6393 of 2012), if the present suit is restored.

6.We may note that in any case, the plea of Order II Rule 2 of the Code of Civil Procedure is an aspect which ought to have been examined, after framing of issues, more so in the facts and circumstances of the case and not treating the application akin to the proceedings under Order VII Rule 11 of the Code of Civil Procedure, 1908. In our considered view, the learned Single Judge has committed an error in going into the merits of the case. There is a difference between Order II Rule 2 (2) and Order II Rule 2 (3). The present case would come under Order II Rule 2 (3), which deals with omission to sue for one of several reliefs, if such a case is made out. In this regard, an useful reference can be made to the judgments of the Hon'ble Supreme Court in Coffee Board vs. Ramesh Exports (P) Ltd., (2014) 6 SCC 424 and Infrastructure Leasing and Financial Services Ltd., (2015) 3 SCC 363.

7.We, thus, direct as under:

1. The impugned order dated 21.01.2014 is set aside and the suit is restored to its original number;

2. The appellant to withdraw the suit filed in O.S.No.6393 of 2012 before the City Civil Court, Chennai;

3. The respondents are permitted to raise a plea of bar of suit under Order II Rule 2 of the Code of Civil Procedure in the written statement, if so advised. The learned counsel, as prayed for, is granted three

(3) weeks time to file written statement;

4. Replication be filed within two (2) weeks, as prayed

for by the learned counsel for the appellant;

5. Documents by both the parties be filed simultaneously;

6. The suit be set down for framing of issues on 14.06.2016.

7.Original Side Appeal, accordingly, stands disposed of in terms aforesaid. No costs.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar To 1.The Sub Assistant Registrar Original Side, Madras High Court, Chennai.

Copy to:

The Registrar, City Civil Court, Chennai.

+1cc to Mr.K.Vellayaraj, Advocate sr.23035 O.S.A.No.47 of 2016 ad(CO) srg(22/04/2016)