Lakshmamma v. R.Vankatasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN C.R.P.(PD) No.3083 of 2018 and CMP.No.17822 of 2018 Lakshmamma ...
Petitioner Vs 1.R.Venkatasamy 2.Vekatamma 3.Gowramma 4.Swetha 5.Shylaja 6.Prasanth 7.M/s.Agri Hills Real Estates, India Pvt Ltd., rep. by N.Nagaraja Reddy, Managing Director 8.L.Sudharsankumar 9.G.Sudha 10.K.Manohar Reddy 11.R.Nirmala 12.C.Narayanaraj 13.S.Lakshmi 14.C.N.Arathi 15.K.Nishanth 16.Amaresha 17.K.Manjula 18.Lakshmaiah 19.R.Bhagya 20.V.Santhosh Kumar 1/10
21.V.Thimmarayappa 22.V.Munieswari 23.R.Vimalraj 24.C.Manjunatha Reddy 25.Minor J.ChethanyaReddy rep. by natural guardian father R.Jayapal Reddy 26.Minor J.LalithaNandha, rep. by natural guardian father R.Jayapal Reddy 27.R.Kalaiselvi 28.Muniyamma 29.R.Lakshmi 30.B.Sushilamma 31.R.Shanthamma 32.Shreekant 33.Yellappa 34.Manjula 35.V.Rashmi 36.B.Rajanna 37.Prabhakar 38.H.Govinda Rao 39.H.Krishna Rao 40.Rajamma Bai 41.V.Umesh 42.B.Ravikumar 43.P.Jayapal 44.S.Rukumani 45.C.Saritha 46.R.Jayalakshmi 47.K.Indirakanthan 48.R.Sridhar 49.G.Usha 50.Sujathamma 51.K.Venkateshwara Reddy 52.S.Radha 2/10
53.B.Muniyappa 54.Y.Bharathi 55.Sunandamma 56.C.Lakshmanan 57.B.N.Gopi 58.T.Venkatesh 59.Sakunthala 60.K.Nagaraj 61.R.Karthik 62.V.Nagaraj 63.R.N.Vasanth Reddy 64.C.Manjunatha Reddy 65.Susila 66.Renuka 67.R.Ramesh 68.K.Manjunatha 69.Bharathi 70.Dhanalakshmi 71.B.N.Gopi 72.R.Madhu 73.M/s.Sree Vijaya Lakshmi Real Estate, its proprietor K.Manohar Reddy 74.R.Raja Reddy 75.R.Suguna 76.Pramila 77.M.Shankara 78.M.Mohanamma 79.Manimegalai 80.V.Mohan 81.Rajuram 82.K.Krishna 83.N.Kalapana 84.Palakshi 85.S.Manjunatha Reddy 86.B.S.Lakshman 87.Kavitha 3/10
88.K.T.K.Jiminraj 89.Jithesh Nelliyeri Padikkal 90.K.Prasanth 91.M/s.Modern Builders and City Developers, rep. by P.Manikandan ...
Respondents Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India to strike out the plaint in OS.No.93 of 2015 on the file of the Principal District Court, Krishnagiri. For Petitioner : Mr.B.Ramamoorthy For Respondents For R1 : M/s.R.Poornima R2 to 91 : Given up
ORDER
This Civil Revision Petition is filed to strike out the plaint in OS.No.93 of 2015 on the file of the Principal District Court, Krishnagiri.
2. The learned counsel for the petitioner submitted that the petitioner is the second defendant in the suit filed by the first respondent herein for partition. He further submitted that the plaint itself is not 4/10
sustainable since there is no cause of action to maintain the suit. His mother Venkatalakshmiamma already filed suit for partition representing the first respondent in OS.No.25 of 2006 on the file of the District Munsif Court, Hosur as against the petitioner and her sister and mother and the same was withdrawn by the judgment and decree dated 02.11.2006 for the reason that they settled the issue out of the court. When the first respondent's mother was settled with due share, the first respondent has no right in the suit property and already it become absolute in favour of the petitioner and his brother as per the judgment and decree passed in OS.No.25 of 2006.
Once the suit was filed and dismissed, the present suit is hit by res judicata when the present suit is filed for very same relief of partition in respect of the very same property. In fact, the petitioner also filed suit for partition in OS.No.76 of 2006 as against her mother and brother and she was allotted her share in the suit property admeasuring seven acres. Therefore, it cannot be partitioned again by way of the present impugned suit. Therefore, he sought for strike of the plaint.
3. Per contra, the learned counsel for the first respondent submitted that the present suit has been laid for partition in respect of the 5/10
suit properties as against the petitioner and her brothers' legal heirs, namely the respondents 3 to 6 herein. While pending the suit, the first respondent also filed petition to amend the prayer to include the prayer of declaration declaring that the judgment and decree passed in OS.Nos.25 of 2006 and 76 of 2006 as null and void for the reason that in the suit filed by the petitioner herein in OS.No.76 of 2006, the first respondent was not party. Therefore, it would not bind him and the amendment petition is still pending. That apart, there was no settlement between the first respondent's mother and other family members, while the suit was pending in OS.No.25 of 2006. What circumstances the mother of the first respondent herein had withdrawn the suit filed for partition, the first respondent had no knowledge about the same.
After attainment of majority, the first respondent filed the present suit for partition in respect of the suit property. That apart, the present suit has been laid not only for partition and also challenging the decree passed in OS.No.76 of 2006, OS.No.68 of 1999 and OS.No.25 of 2006. Therefore, thee are triable issues to be decided in the impugned suit and it cannot be rejected in limine.
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4. Heard, Mr.B.Ramamoorthy, the learned counsel for the petitioner, and M/s.R.Poornima, the learned counsel for the first respondent.
5. Admittedly, the first respondent when he was minor, through his next guardian i.e. his mother filed suit for partition in respect of the very same property in OS.No.25 of 2006 on the file of the District Munsif Court, Hosur. While pending suit, his mother filed affidavit seeking permission to withdraw the suit for the reason that the mother was settled outside the court. Though she filed affidavit seeking permission for the reason that they have settled the issues outside the court, no memorandum of compromise was entered between them by allotting some share or cash in favour of the first respondent's mother. After attainment of majority, the first respondent filed the present suit for partition adding all the subsequent purchasers as parties in the suit. According to the petitioner herein, the suit was filed by the first respondent through his mother and she also filed suit in OS.No.76 of 2006 for partition, in which by the judgment and decree dated 06.02.2012, she was allotted share in the suit property. 7/10
6. The learned counsel for the petitioner contended that the present suit is not at all maintainable as against the petitioner herein. Admittedly, in the suit filed by the petitioner herein, the first respondent was not a party. Therefore, now the first respondent filed the petition to include the prayer of declaration declaring that the judgment and decree obtained in OS.No.76 of 2006 as null and void and it is pending. Therefore, there are triable issues in the present suit and it cannot be said that it is hit by res judicata. Therefore, this Court finds no merits in the civil revision petition.
7. Accordingly, this civil revision petition is dismissed. However, the court below is directed to dispose of the suit in OS.No.93 of 2015 within a period of nine months from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs.
12.07.2021 lok Index:Yes/No Internet:Yes/No Speaking Order: Yes/No 8/10
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G.K.ILANTHIRAIYAN,J.
lok To The Principal District Court, Krishnagiri.
C.R.P.(PD) No.3083 of 2018 12.07.2021 10/10