Remanded

Indira Chandran v. Kolady Jayalkshmi

Kerala HC11 Sept 2013FAO/203/2012

Case brief

AI extract

What is this about?

High Court of Kerala allowed appeals and set aside the District Court judgment remanding suits for fresh trial. The court held that without specific pleading of fraud as required by Order VI Rule 4 CPC, evidence cannot be recorded to challenge prior decrees before determining if res judicata applies.

What did the court decide?

Common judgments dated 30.03.2012 set aside; appeals remitted to District Court for fresh decision after hearing both sides.

Indira Chandran Vs Kolady Jayalkshmi — Civil Procedure and Limitation | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2013/20TH BHADRA, 1935

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FAO.No. 203 of 2012 () ----------------------ORDER/JUDGMENT IN AS 12/2011 of DISTRICT COURT,KOZHIKODE DATED 3003-2012

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ORDER/JUDGMENT IN OS 292/2007 of ADDL.MUNSIFF COURT-II, KOZHIKODE DATED 31-08-2010 (Corrected as O.S.No.293 of 2007 instead of O.S.No.292 of 2007 vide order dated 11.09.2013 in I.A.No.1385 of 2013)

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APPELLANT(S)/RESPONDENT NO.1/DEFENDANT NO.1:

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INDIRA CHANDRAN, D/O.LATE GILBERT IGNATIUS CHATHAMPALLI RESIDING AT INDRAPRASTHA, GOLF LINK ROAD CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENT(S)/APPELLANT AND RESPONDENT NOS.2 AND 3/PLAINTIFF AND DEFENDANTS 2 TO 3: ---------------------------------------------1. KOLADY JAYALKSHMI, D/O.GOPALAN, HOUSE WIFE, RESIDING AT KACHERI AMSOM DESOM, KOZHIKODE TALUK-673010. 2. MRS.USHA HUTTON, D/O.LATE GILBERT IGNATIUS CHATHAMPALLI RESIDING AT NISHAT, OPP.TO SUBRAMONIA TEMPLE GOLF LINK ROAD CHEVAYOOR AMSOM AND DESOM OF KOZHIKODETALUK PIN-673010. 3. PREMANAND HUTTON, S/O.FREDRIC HUTTON, RESIDING AT 'HILL NEST' NELLIKODEAMSOM, KOVOOR DESOM, KOZHIKODE TALUK-673010. R1 BY ADV. SRI.R.SUDHISH R1 BY ADV. SMT.M.MANJU R1 BY ADV. SRI.K.R.RANJITH

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11-09-2013, ALONG WITH FAO. 204/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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=========================

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F.A.O.Nos.203 and 204 of 2012

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============================ Dated this the 11^th day of September, 2013

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J U D G M E N T

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The following substantial questions of law are framed for a decision:

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(i) Whether, when there is no allegation of fraud in the plaint, it is necessary to record evidence for a decision on the question of res judicata?

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(ii) Whether, lower appellate court was correct in remanding the suits to the trial court for disposal after recording evidence when the suit is clearly barred by res judicata?

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The appeals arise from the common judgment dated

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30.03.2012 in A.S.Nos.12 and 11 of 2011, respectively of the District Court, Kozhikode arising from the dismissal of O.S.Nos.292 and 293 of 2007, respectively on the preliminary issue that those suits are barred by res judicata in view of the judgment and decree in O.S.No.629 of 1992 of the Sub Court, Kozhikode.

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The suit properties belonged to one Sarada. She assigned the said properties to Gilbert Ignatius as per assignment deed No.2480 of 1959 of SRO, Chevayur. Gilbert Ignatius is said to have executed Will No.7 of 1966 bequeathing the property to his

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F.A.O.Nos.203 and 204 of 2012

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wife, Daisi Ignatius. On the death of Gilbert Ignatius, the said Will took effect. Daisi Ignatius is said to have obtained purchase certificate from the Land Tribunal, Kozhikode and executed Will No.55 of 1983 bequeathing the properties to the defendants 2 and 3 in O.S.No.292 of 2007. The 4^th defendant in that suit is said to be the power of attorney holder of defendants 2 and 3. The 4^th defendant executed assignment deed No.1581 of 1991 on behalf of defendants 2 and 3 in favour of the plaintiff, allegedly assigning the property involved in O.S.No.292 of 2007. On the strength of that assignment, plaintiff in O.S.No.292 of 2007 claimed title and possession and prayed for a declaration of title and prohibitory injunction. Plaintiff alleged in the plaint in O.S.No.292 of 2007 that in connection with O.S.No.629 of 1992, the 4^th defendant approached the plaintiff and obtained signed vakalath. The 4^th defendant engaged a lawyer to conduct the case. The plaintiff was under the impression that the 4^th defendant was assisting the lawyer in conducting the case but learned about the decree in O.S.No.629 of 1992 only later. In O.S.No.293 of 2007 the plaintiff claimed that as per Will No.55 of 1983 executed by Daisi Ignatius, the second defendant in that suit got the suit property therein. The second defendant assigned the property to the plaintiff as per deed No.1579 of 1991. Thus, the plaintiff in O.S.No.293 of 2007 claimed title and possession of

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F.A.O.Nos.203 and 204 of 2012

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the said property.

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In O.S.No.293 of 2007 also, judgment and decree in O.S.No.629 of 1992 are challenged on the ground that the third defendant in that case had engaged a lawyer on behalf of the plaintiff (who was 11^th defendant in O.S.No.629 of 1992) but, third defendant did not render necessary assistance to conduct the case.

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The first defendant in the suits denied the allegations in the plaint and claimed title and possession of the properties. First defendant disputed the Wills relied on by the plaintiffs. First defendant claimed title and possession pursuant to the preliminary and final decrees in O.S.No.629 of 1992. The first defendant also claimed that the suits are barred by res judicata in view of the preliminary and final decrees in O.S.No.629 of 1992.

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Learned Munsiff raised a preliminary issue whether the suits are barred by res judicata in view of the preliminary and final decrees in O.S.No.629 of 1992 and answered the issue in favour of the defendants. The suits were dismissed against which the plaintiffs preferred A.S.Nos.11 and 12 of 2011.

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Learned District Judge proceeded on the assumption that since fraud is alleged in challenging the judgment and decree in O.S.No.629 of 1992, question of res judicata can be disputed only after deciding the allegation of fraud which require

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F.A.O.Nos.203 and 204 of 2012

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evidence. In that view of the matter, dismissal of the suits was set aside and the suits were remitted to the trial court for fresh decision after recording evidence. Common judgment remanding the suits is under challenge in these appeals on the substantial questions of law framed above.

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Learned counsel for the appellant/first defendant has contended that the lower appellate court has proceeded on the wrong assumption that the suits are based on allegation of fraud in obtaining the preliminary and final decrees in O.S.No.629 of 1992. It is argued that there is no whisper of fraud in the plaint in O.S.Nos.293 and 292 of 2007. Learned counsel has invited my attention to the necessity to plead particulars of fraud as per Rule 4 of Order VI of the Code of Civil Procedure (for short, “the Code”) as explained in the decision in Kollanchil Padinhakkara Abdulrahiman Vs. Kunhimohamed (AIR 1975 Kerala 150) . It is argued that when the preliminary and final decrees in O.S.No.629 of 1992 are sought to be avoided on the grounds stated in the plaint in the suits, it is extrinsic to the case and at any rate, particulars of fraud must be specifically pleaded. In the absence of such plea, there is no scope for recording any evidence as thought by the lower appellate court.

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Learned counsel for the plaintiffs has invited my attention to the averments in paragraph 4 of the plaint in the

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F.A.O.Nos.203 and 204 of 2012

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cases to contend that though the expression “fraud” is not specifically used, there are sufficient allegations in the plaint in both the cases to infer that the preliminary and final decrees in O.S.No.629 of 1992 were obtained by fraud.

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What is 'fraud' is explained in paragraph 4 of the decision in Gopalakrishnan Vs. Srinivasan (2010(2) KLT 216) . Rule 4 of Order VI of the Code states that in all cases in which a party relies on fraud etc, particulars of such fraud with dates and items, if any shall be stated in the pleadings. Referring to that provision, in the decision cited above it is held that the particulars of fraud must be specifically pleaded. Learned Judge has made reference to the decision in Ladli Prashad Jaiswal Vs.

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The Karnal Distillery Co.Ltd (AIR 1963 SC 1279) and Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib (AIR 1967 SC 877) . In the later decision, it was pointed out that before the Court is called upon to examine whether undue influence (pleaded in that case) was exercised or not, it must scrutinise the pleadings to find whether such a cause is made out. It was further held that a vague or general plea can never save the parties. The party pleading is required to plead the precise nature of undue influence (included in that case) exercised, manner of use of undue influence and the unfair advantage obtained by the other.

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F.A.O.Nos.203 and 204 of 2012

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Though learned counsel on both sides have invited my attention to paragraph 4 of the case in support of their contention that there is no allegation of fraud or that sufficient particulars are given, I find that the lower appellate court has not adverted to the averments in the plaint. Instead, a reading of the judgment of the lower appellate court show that the said Court has proceeded on the assumption that fraud is alleged. May be, the expression 'fraud' is not required to be specifically mentioned even if it is assumed so. But fraud when set up to avoid a previous transaction, in this case the preliminary and final decrees in O.S.No.629 of 1992, it must be specifically pleaded with full particulars. I do not find any exercise done by the lower appellate court to find whether averments in the plaint are sufficient to enter a finding as to the compliance with Rule 4 of Order VI of the Code.

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If there is no allegation of fraud as required by law, then it may be possible to contend that the preliminary and final decrees in O.S.No.629 of 1992 would stand in which case since the plaintiffs were parties in O.S.No.629 of 1992, the preliminary and final decrees in that case may operate as res judicata as found by the learned Munsiff.

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In the light of the above, I am constrained to set aside the judgment of learned District Judge and remit the appeals for

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F.A.O.Nos.203 and 204 of 2012

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proper consideration of that Court in accordance with the law. It is made clear that it is open to the parties to raise all contentions as the law permits in the lower appellate court. I make it clear that I have not expressed any opinion as to the sufficiency or otherwise of the pleadings of the plaintiffs concerning the allegation of fraud.

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