Kani Raj v. John Vesly

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on

04.08.2023 Pronounced on

21.12.2023 CORAM THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI and C.M.P.(MD) Nos.7898, 7901, 7998 of 2023

1.Kaniraj ... Petitioner in C.R.P.(MD)No.1614 of 2023

¶2Devathiravia Nadar ...Petitioner in C.R.P (MD)No.1616 of 2023

¶3Dhanasekar ...Petitioner in C.R.P (MD)No.1616 of 2023

¶4V.TamilSelvi ....Petitioner in C.R.P (MD)No.1626 of 2023 Versus

¶1John Vesly

¶2Canon Trust its Administrative Officer John Vesly, S/o.Rajapahadur, 5/122, Pudukottai Main Road, Thoothukudi Taluk Thoothukudi District J.Sunder Singh (died) S/o.Late K.S.Jeyasingh, Kootampuli Village, Thoothukudi Taluk Thoothukudi District.

¶3J.Kumar

¶4J.Siva Subramani Rajan J.Jeyarani(died)

¶5S.Packia Seeli

¶6J.S.Jane Silvia

¶7J.S.Ajay Kumar

¶8J.S.Sanjay ... Respondents in all C.R.Ps Prayer in C.R.P.No.1614 of 2023: The Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the Fair and Decretal order dated 17.04.2023 passed in I.A.No.06 of 2021 in O.S.No.168 of 2015 on the file of the Principal District Munsif Court, Thoothukudi. Prayer in C.R.P.No.1616 of 2023: The Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the Fair and Decretal order dated 17.04.2023 passed in I.A.No.06 of 2021 in O.S.No.172 of 2015 on the file of the Principal District Munsif Court, Thoothukudi. Prayer in C.R.P.No.1626 of 2023: The Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the Fair and Decretal order dated 17.04.2023 passed in I.A.No.06 of 2021 in O.S.No.169 of 2015 on the file of the Principal District Munsif Court, Thoothukudi. For Petitioners (in all C.R.Ps.) : Mr.S.Muthumalai Raja For Respondents (in all C.R.Ps.) : For R1 : Mr.M.P.Senthil For R2 to R8 : No Appearance COMMON ORDER These revisions are preferred as against the fair and decretal order dated 17.04.2023 passed in I.A.No.06 of 2021 in O.S.Nos.168 of 2015, 169 of 2015 & 172 of 2015 on the file of the Principal District Munsif Court, Thoothukudi. Facts:-

2.The revision petitioners, as plaintiffs, filed the above three suits for the relief of declaration of title of the suit property and permanent injunction restraining the respondents/defendants from disturbing the petitioner's peaceful possession of the suit property.

3.According to the revision petitioners, the suit properties belong to them. While so, the respondents/defendants illegally trespassed in the suit property and attempted to cut the oak trees in the suit properties and therefore, they were constrained to file the above suits. During the pendency of the above suits, the revision petitioners filed I.A.No.6 of 2021 for amendment to include and additional relief to declare Ex.D.2 decree and Ex.D.4-Sale deed as null and void. The same was resisted on the side of the respondents/defendants. The trial Court dismissed the above applications by stating that it is time barred. Aggrieved by this, the present revision petitions are filed.

4.The contention of the revision petitioners in C.R.P.Nos.1614, 1616 & 1626 of 2013, who are the plaintiffs in O.S.Nos.168, 169 & 172 of 2015, is that the suit 1st scheduled property belong to one Irulan and one Mayan who executed sale deed in favour of one Jayasingh through registered sale deed in document No.472/1976. Thereafter, one Rayappa Nadar got the first schedule property from Jayasingh, through a registered sale deed, on

17.03.1999 and he was in possession and enjoyment of the property. Subsequently, one Singaramaniammal purchased the suit property from Rayappa Nadar, through a registered sale deed on 30.03.2001. The patta also stood in her name and she was in possession and enjoyment of the property. The 2nd schedule of the property originally belong to one K.S.Duraisingh, who got the property in a family partition and he executed a sale deed in favour of Singaramaniammal and by virtue of the sale deed dated

02.04.2001, she was in enjoyment of the property without encumbrance and also got the patta in her name. Thereafter, the revision petitioner/plaintiff purchased the suit 1st and 2nd item, from Singaramaniammal, through registered sale deed 19.07.2004 and the patta was also changed in the name of the revision petitioner. He had also paid the property tax for the said property on 01.04.2015. The 1st respondent/1st defendant, along with henchmen, trespassed in to the suit property and attempted to cut the Oak trees in the said property. Again 18.04.2015 the 1st respondent/1st defendant disturbed his possession. Hence, the revision petitioner/plaintiff preferred a police complaint on 19.04.2023. Since it was a civil dispute, the complaint was closed. Hence, the revision petitioners have filed the above suits in O.S.Nos.168, 169 & 172 of 2015 before the Principal District Munsif Court, Thoothukudi. The respondent/defendant also filed the written statement. According to the revision petitioners, in O.S.No.69 of 1999 Ex.D.1 judgment was passed in favour of the 2nd defendant namely the Canon Trust. Ex.D.2 is the decree in the above suit. The above documents were marked through the defendants at the time of trial in the present suit. On verification, it was found that the suit property in Ex.D.2 decree is one and the same as in the present suit. It was also found that Ex.D.2 decree was not in accordance with Ex.D.1 judgment passed in O.S.No.69 of 1999. The contention of the revision petitioners is that in Ex.D.1 judgment (O.S.No.69/99) in Paragraph No.9, It is stated as under: **1k; gpujpthjpapd; rnfhjuh; (K.S.Jiurp';) ,e;j fpiua xg;e;jj;jpy; ifbaGj;J bra;atpy;iy/ Mdhy; 1k; gpujpthjpf;F (K.S/Jiurp'; ehlhh;) nkw;go brhj;ijg; bghWj;J fpiuak; bra;a mDkjp mspj;Js;sjhf 1k; gpujpthjp Twpa[s;shnu jtpu mtUila rnfhjuh; mt;thW Twtpy;iy/ nkw;go rnrhjuiu ,t;tHf;fpy; jug;gpduhf nrh;f;ftpy;iy/ vdnt. fpua xg;ge;jj;jpy; ifbaGj;J bra;ahj 1k; gpujpthjpapd; rnfhjuUila brhj;ij bghUj;J 1k; gpujpthjp. thjpaplk; (fhdhd; muf;fl;lis. brd;id/) mjd; eph;thf ou!;o uh/$hd; bt!;yp K:yk;) fpua xg;ge;jk; bra;jJ xU Kiwaw;w brayhFk;/ vg;go ,Ug;gpDk; 1k; gpujpthjpapd; brhj;ij bghWj;J 1k; gpujpthjp. thjpf;F fpiuak; bfhLf;f flikg;gl;lth; Mfpwhh;/ bkhj;jk; cs;s 74 brz;Lf;F U:/2 yl;rj;jpw;F fpiua xg;ge;jk; ngrg;gl;Ls;sJ/ mt;thW ghh;f;Fk;nghJ 1k; gpujpthjpf;F C.R.P.(MD)oNos.1614,o1616oando1626oofo2023 ghj;jpagg; ll; brhj;J Rkhh; 29 brz;L kl;Lnk MFk/; vdnt. th/rh/M/8d; go 1k; gpujpthjpapd; rnfhjuUf;F ghj;jpag;gll; jhf TWk; rh;nt vz/;281-3By; 26 brz;il bghWjJ; k;. 281-3Cy; 19 brz;il bghWjJ; k; Mf bkhj;jk; 45 brz;L 1k; gpujpthjpapd; rnfhjuh; Jiurp';fpwF; ghj;jpagg; ll; jhf Twg;gl;Lss; J/ bkhj;jk; cs;s 74 brzo; y; 45 brz;L nghf kPjpa[s;s 29 brz;L kl;Lnk 1k; gpujpthjpfF; ghj;jpag;gl;lJ//////// nkw;go jPh;gg; [iu 10tJ gj;jpapy;///////////// Kotpy; 1k; gpujpthjpahdth; mtuJ rnfhjuh; lhf;lh/;jpU/K.S.Jiurp'; mth;fis mZfp mthplk; ngrp ,UtUk ; jgrpy; brhj;Jfis thjpf;F fpiuak; braJ; bfhLjJ; . thjpahy; itgg; PL bra;jpUfF; k; kPjp fpiua bjhifia bgw;Wfb; fhs;s ntz;LbkdW; . jtWk; glr; j;jpy; 1k; gpujpthjp mtUf;F ghj;jpagg; ll; jgrpy; brhj;ij bghWj;J ,dw; pypUe;J xU khj fhyj;jpwF; s; thjpfF; fpiua gj;jpuk; gjpt[ braJ; bfhLf;f ntz;LbkdW; k…; ……… o**o vd;Wk; jPh;gg; [iu gpwg;gpf;fg;gl;Ls;sJ/ Mdhy; jPh;ghgizapy.; 27/07/1998 njrpa fpiua xg;ge;jgo thjpaplk; ,Ue;J ghf;fp fpiua bjhif U:/1.00.000-? yl;rj;ij gpujpthjp bgw;Wbfhz;L jgrpy; brhj;ij bghWj;J 11/12/04 f;Fs; fpiua gj;jpuk; vGjp gjpt[ braJ; thjpfF; 1tJ gpujpthjp bfhLf;f ntz;LbkdW; k; jtWk; gl;rj;jpy; thjp ePjpkdw; k; Ky: k; eltof;if vLjJ; fb; fhs;s ntz;LbkdW; k ; cj;jtplgg; LfpwJ/

5.In pursuant to the above decree, the plaintiff in O.S.No.69/99, namely the Cannon Trust and the 1st defendant in the above suit namely K.S.Jaysingh Nadar, conspired and without amending the above said decree the said K.S.Jayasingh Nadar executed a sale deed in respect of the entire suit property under Ex.D.4 in favour of the plaintiff -Cannon Trust. The learned counsel for the revision petitioners would submit that, the said K.S.Jayasingh Nadar and the Cannon Trust, by suppressing the defect in Ex.D.2 decree, without amending the decree, executed the sale deed by playing fraud. Therefore, the principle of ''finality of litigation'' cannot be pressed to the extent of such an absurdity, that it becomes an engine of fraud in the hands of dishonest litigants. A Judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. It can be challenged in any Court either superior or inferior and even in collateral proceedings. To support his contention he has relied upon the judgment reported in (1994) 1 SCC 1.Therefore, the said decree and the sale deed are not valid and therefore, it has necessitated the revision petitioners to file the applications to amend the plaint by including the relief to declare the above Ex.D.2 decree and Ex.D.4 sale deed as null and void. Hence, the revision petitioners filed the amendment petitions in I.A.No.6 of 2021 in the above suits. However, the trial Court, without considering the above facts, dismissed the above applications and therefore, the revision petitioners preferred the above revision petitions.

6.On the other hand, the learned counsel appearing for the respondent/defendant would contend that the revision petitioners have suppressed the material part of the judgment passed in O.S.No.69/99. In paragraph 7 of the judgment it is categorically stated as follows: ** ,t;tHf;fpy; 1k; gpujpthjp ---- Mf tprhhpf;fg;gl;Ls;shh;/ mth; jdJ rhl;rpaj;jpd; Kjy; tprhuizapd; rh;nt vz;/281-2o y; cs;s 34 brz;L epyKk;. 281-3gp kw;Wk; 281-3rp cs;s epyk; 40 brz;L nrh;j;J Mf bkhj;jk; 74 brz;L epyj;ija[k; tpw;gjw;F jhDk; thjpa[k; xU fpiua xg;ge;jk; bra;J bfhz;lJ cz;ik vd;Wk; jd;Dila ,Uja mWit rpfpr;irf;fhf jd; rnfhjuUf;F ghj;jpag;gl;l epyj;ija[k; tpw;gjw;F Kjypy; mDkjp bfhLj;jhh; vd;W Twg;gl;Ls;shh;/ vdnt. thjpapd; Tw;iw 1k; gpujpthjp cWjp bra;fpwhh;/ Mifahy; thjpapd; rnfhjuUf;F nkw;go ,U rh;nt vz;fspy; cs;s brhj;Jf;fs; ghj;jpag;gl;lit vd fz;Ls;sjhy; mth; 1k; gpujpthjpaplk; mDkjp bfhLj;jpUe;j fhuzj;jpdhy; nkw;go brhj;Jf;fis bghWj;J thjpf;F 1k; gpujpthjp fpiuak; vGjp bfhLf;f flikg;gl;lth;/

7.Therefore, in the judgment passed in O.S.No.69/1999 it is clearly stated that only with the consent of his brother Durai singh, the 1st defendant Jaya singh executed a sale agreement in favour of the plaintiff and therefore, the decree was also drafted in favour of the plaintiff in the above suit. The learned counsel appearing for the respondent further contended that though the said Durai singh filed a suit in O.S.No.104/1999 for declaration and permanent injunction, by denying the alleged sale agreement, the same was not pursued by him and the above suit was dismissed for default. The judgment and decree passed in O.S.No.104/1999 was filed as Exs.P.7 and P. 8 in O.S.No.69/1999 and the same was also reflected in the judgment passed in O.S.No.69/1999. Hence, the learned counsel would submit that Ex.D.2 decree passed in O.S.No.69/1999 is in accordance with the judgment passed in the above suit. His further contention is that the decree was drafted in two parts and in the 1st part it is stated that the 1st defendant should approach his brother K.S.Duraisingh for executing a sale deed in favour of the plaintiff and receive the balance sale consideration. In the 2nd part it is stated that if the brother of the 1st defendant failed to execute a sale deed in respect of his share, the 1st defendant shall execute a sale deed in respect of his share in the suit property in favour of the plaintiff within a period of one month. Failing which, the Court shall execute the sale deed in favour of the plaintiff. The learned counsel would submit that even if there is any discrepancy found in drafting of the decree, the remedy available to the revision petitioner is to amend the said decree, instead of seeking the relief to declare the above decree and sale deed as null and void. Moreover, a judgment passed by a superior Court cannot be challenged in a Court inferior to it. He would further contend that the said amendment is also time barred and the doctrine of relation back, i.e., relating back the amendment to the date when the suit was originally filed, is not applicable to the facts and circumstance of the present case, since there is no special or extraordinary circumstances in the instant case warranting application of doctrine of relation back whereby a legal right that had accrued in favour of the defendant should be taken away. If such amendment is permitted it would result in injustice to the defendant. When a time barred claim is introduced, it would divorce the valuable right accrued to the defendant and it would change the nature of the suit. To support his contention, he has relied upon the judgments reported in (2016) 1 SCC 332; 2022 (6) CTC 485. Hence, the above revision petitions are devoid of merits and are liable to be dismissed.

¶8Heard on both sides. Records perused.

9.Now, it has to be considered whether such amendment can be permitted or not. The contention of the revision petitioners is that the decree passed in O.S.No.69/1999 is not in accordance with the judgment passed in the above suit. Therefore, the sale deed executed in pursuant to the above defective decree would not bind upon the revision petitioners herein. Hence, they filed the interlocutory applications to amend the plaint for including the relief to declare Ex.D.2 decree and Ex.D.4 sale deed as null and void. As per Order 6 Rule 17 CPC, the Court may, at any stage of the proceedings, allow either party to alter or amend the pleadings which may be necessary for the purpose of determining the real questions in controversy between the parties provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the parties could not have raised the matter before the commencement of trial. Admittedly, in this case, the above applications for amendment has been filed by the revision petitioners at the time of further cross examination of D.W.1. The explanation given by the revision petitioners for filing the above petitions after commencement of trial is that only at the time of marking the above documents at the time of examination of D.W.1, the revision petitioners came to know about the said documents. This contention of the revision petitioners cannot be accepted for the reason that even in the written statement filed by the respondent on 01.12.2015 itself, his claim over the suit property is based upon the decree passed in O.S.No.69/1999. Therefore, on 01.12.2015 itself the suit in O.S.No.69/1999 was brought to the knowledge of the petitioners. Moreover, the trial Court had also framed necessary issues in this regard on 16.06.2016. Thereafter, P.W.1 was also examined. Therefore, the contention of the revision petitioners that they came to know about the judgment and decree passed in O.S.No.69/1999 only at the time of marking the above documents cannot be accepted. Therefore, the cause of action to declare the decree in O.S.No. 69/1999 arose on 01.12.2015 itself when the written statement was filed by the respondents. Therefore, the trial Court, placing reliance on the judgment reported in 2008 (15) SCC 610 has rightly held that the application of amendment of plaint to add a new relief is time barred. Even if it is a defective decree, which is not in accordance with the judgment, the revision petitioners instead of seeking the relief to include the prayer to declare the decree and sale deed as null and void, ought to have taken steps to amend the decree. However, the revision petitioners failed to take steps to amend the decree in the trial Court and not even preferred any appeal against the decree passed by the trial Court. Even at the time of executing the decree, the revision petitioners failed to take steps to amend the decree. Hence, the trial Court has rightly held that the said applications are time barred. Therefore, there is no infirmity or perversity found in the impugned order.

10.Accordingly, the orders passed by the trial Court in I.A.No.06 of 2021 in O.S.Nos.168, 169 and 172 of 2015 is confirmed. In the result, the above Civil Revision Petitions are dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.

21.12.2023 mac/vsn Index:Yes/No Speaking Order : Yes/No To The Principal District Munsif Court, Thoothukudi. C.R.P.(MD)oNos.1614,o1616oando1626oofo2023 K.GOVINDARAJANoTHILAKAVADI,J. mac/vsn ocommonoorderomadeoino C.R.P.(MD)oNos.1614,o1616oando1626oofo2023 and C.M.P.(MD)oNos.7898,o7901,o7998oofo2023

21.12.2023