NESAMMAL Vs. EDWARD

JUDGEMENT

(1.) THE impugned order is rejecting the plaint on the ground that for the same issue, there was adjudication and therefore the suit is prima facie barred. THE same is challenged under Article 227 of the constitution of India.

(2.) IT is not disputed by the plaintiff/petitioners that between them and the respondents herein there is an earlier suit in O. S. No. 2 of 1983. The suit was decreed, taken appeal without success and confirmed by me in second Appeal No. 874 of 1994. The present plaintiffs were impleaded as legal heirs of the deceased appellant in that case. After a detailed discussion of the entire matter. I held that the revision petitioners are not entitled to any relief and the decree granted in the suit is not liable to be interfered with. An argument was also taken before me that the plaintiffs in O. S. No. 2 of 1983 were given a decree to which they are not legally entitled to and the same will cause great injustice to them. The said contention was rejected by me in para. 13 of my judgment which reads as under. "learned counsel for the appellants contended that a person who is not entitled to any right is allowed to get partition and this will cause great prejudice to his client. I cannot agree with the said submission. The first defendant did not care to cross examine the plaintiff's witness in spite of the fact that adjournments were given liberally for the said purpose. Since no document was produced before the trial court or even before the lower appellate court, they relied only on the written statement from which they could only infer that the appellant (first defendant) had no case as alleged in the pleading. Due to failure on his part to produce the documents referred to in the pleadings courts below could only take on adverse inference against the first defendant (appellant), rightly. Learned counsel for the appellants here in agreed that if this Court holds that sufficient opportunity has been given, he cannot argue the case on merits. " The second appeal filed by the very same appellants was dismissed on 24. 2. 1997 and the present suit was filed in September, 1997. In the plaint on the file of the lower Court, there is no statement about the judgment of this Court and what they wanted was to have a decree in O. S. No. 2 of 1983 from executing the same. As I said, the very suit was filed long after the dismissal of second appeal whereby I confirmed the decision in O. S. No. 2 if 1983. Decree of this Court is suppressed and when a decree is confirmed by this court, it follows that the decree in O. S. No. 2 of 1983 merges with the decree of this Court.

(3.) APART from the above decisions, the trial Court is also bound to see that the valuable time is not taken away by proceeding the trial in the vexatious litigation, which is clearly abuse of process of Law. In fact, in the decision reported in T. Arivandandam v. T. V. Satyapal and another, 1977 (4) S. C. C 467, the Honourable Supreme Court held that it is also duty bound not to take such cases. In para 7 of the Judgment, Their Lordships held that, "we regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstances that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to colloborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.