Revision is filed under Art. 227 of the Constitution of India against the filing of O.S 33 of 1998, on the file of Sub Court, Tirunelveli.

2. Reason for filing the Revision is, that as between parties, there was an earlier litigation which has been confirmed by this Court, and in spite of the same, defendant therein has ventured to file the present suit, which is an abuse of process. They pray that O.S No. 33 of 1998 may be struck ofF the file.

3. O.S 1017 of 1983 on the file of District Munsifs Court, Tirunelveli was filed by the present petitioners for declaration of title and recovery of possession. It was averred in that case that the property originally belonged to one Vakil Thiagaraja Pillai, and, lor service rendered to him by the petitioners' father late Velu alias Asirvatham, the property was given to him as a gift orally. The donee came into possession and patta was also granted to him recognising his possession. It was a minor inam estate and the Authorities under the Act also recognised his possession and ryotwari patta was also granted after enquiry. After the death of the donee, his legal heirs, i.e, petitioners herein came into possession. Since they were residing far away from the property, their absence was exploited by defendants in that suit, and they trespassed into the property in 1983. The suit was, therefore, laid for declaration of title and recovery of possession with mesne profits.

4. In the written statement filed by respondent herein, who was second defendant in that suit, it was contended that the plaintiffs have no title. It was also admitted in that case that the property belonged to late Thiagaraja Pillai. Oral gift alleged to have been given by Thiagaraja Pillai in favour of petitioners' father was disputed. According to them, Thiagaraja Pillai sold the property to one Chelliah and Vaikundaraman, who in turn sold the property to one Velu son of Ganapathi Mooppanar, who in turn sold the same to the respondent herein. It was the case of defendants therein that there was no trespass, and plaintiffs were never in possession. It may also be stated that in the suit filed by petitioners, originally respondent's husband alone was impleaded. But, subsequently, on the pleading of the husband, respondent herein was additionally impleaded as second defendant, and it was she who put forward the above contentions.

5. After a detailed trial, the trial Court came to the conclusion that Thiagaraja Pillai had orally gifted the property to petitioners' father, and they came into possession. It was also found that recognising his possession, patta was also granted, and the right, if any, of any other person is also barred by adverse possession. The title was declared. It was further found by trial Court that the respondent herein and her predecessors had no possession before 1983 and the case of trespass was also true. The suit was decreed as prayed for.

6. The matter was taken in appeal by respondent herein, in A.S No. 56 of 1991, on the file of Sub Court, Tirunelveli. All the findings of the trial Court were confirmed, and the appeal was dismissed.

7. The matter was taken to this Court in Second Appeal No. 1329 of 1992. I dismissed the Second Appeal. I held that the oral gift pleaded was true and possession also passed in favour of petitioners' father and they were in possession till 1983. I also found that the title, if any, of the defendant or her predecessor is also barred by limitation and adverse possession, and the plaintiffs have perfected title to the property. While discussing the factum of possession, I also held that when patta was granted by the Inam Estate authorities, the same could have been granted only on the basis of possession, and that is also relevant piece of evidence.

8. After the dismissal of the Second Appeal, a Review Application was filed (Review CMP SR. No. 10364 of 1997) with C.M.P 2182 of 1997 to condone delay of 25 days in filing the Review. Even at the SR Stage, I considered the Review Application on merits. The reason alleged for filing the Review was, that the petitioners herein have fraudulently created documents before the Inam Authorities and have obtained the patta, and this came to the knowledge of the respondent herein only after the Second Appeal was filed. The allegation was that there was fraud committed by petitioners, and the Court has also relied on that fraud for granting the decree and, therefore, the decision was liable to be set aside. I dismissed the Review Petition on the ground that I have decreed the suit only on the basis of possession and also the oral gift. The question whether there was any fraud committed by petitioners was not necessary to be considered, for, even without the patta, plaintiffs were entitled to succeed. I also held that possession is based on oral gift and consequent delivery of possession, and that the petitioners have acquired title on the basis of limitation and adverse possession also. I held that I have not given any importance to the patta granted by the Inam Authorities. Against the Order in review, the matter was taken up before the Honourable Supreme Court in S.L.P Nos. 21493 of 1997 and 21759 of 1997, but without success.

9. After fighting for years together and the litigation reached a finality, respondent herein has now filed O.S No 33 of 1998, on the file of Sub Court, Tirunelveli, to set aside the decree in O.S No. 1017 of 1983. The allegation is that the petitioners herein committed fraud before the Inam Authorities in getting patta for the property. The allegation is that the Revenue Authorities have also colluded with the petitioners in creating documents, and the settlement authorities were misled by similarity of names. A copy of the plaint in that suit viz. O.S 33/98 is also available among the typed set of papers. It is this plaint that is sought to be struck off the file, and the reliefs prayed for in that suit read thus:—

“a) to set aside the decree and judgment passed in O.S No. 1017 of 1983, on the file of the District Munsif's Court, Tirunelveli, and for consequential permanent injunction restraining the defendants, their men, servants, agents, etc., from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the schedule property either by executing the said decree or otherwise;

b) awarding cost of this suit; and

c) granting such other reliefs as this Hon'ble Court may deem fit and proper…”

10. When the Revision Petition came up for admission, I ordered notice of motion, and further proceedings in the suit were also stayed.

11. Learned counsel for respondent submitted that fraud vitiates every action and when there is an allegation of fraud, a plaint cannot be struck off, unless the same is allowed to be proved. He also relied on two decisions of mine, reported in 1998-1-L.W. 372 (J. Sivasubramanian and another v. N. Govindarajan and another) and 1998-III-M.L.J 3 (Sundaram alias Vettukati Sundaram v. R. Thangasamy Nadar). In those cases, I have considered the circumstances under which a plaint could be struck off as abuse of process of Court. In those cases, I have also held that if any decision is obtained by playing fraud on Court, the same is liable to be struck off, and I have also declared that there is a duty on the Court to see that injustice done is rectified and the affected person should also be compensated in full. Regarding that legal position, there cannot be any dispute. But I do not think that the same has any relevance so far as this suit is concerned.

12. The fact whether there was an oral gift and whether petitioners' father obtained physical possession on the basis of the oral gift, has nothing to do with the alleged fraud. I also found in the earlier case that the title of the petitioners is also absolute once they have prescribed title by adverse possession. These two findings by themselves are sufficient to declare the title of the petitioners in the earlier suit. The question whether there was any forgery of documents need not be considered at all. While disposing of the Review Application, I have given reasons why the allegation of fraud is irrelevant and why it need not be considered. The earlier suit was filed on the basis of oral gift and factum of possession. There was a further allegation that the continuous possession fox more than the prescribed period will give them absolute title. All the three Courts have further held in the earlier suit that the respondent herein and her predecessor did not have possession at all till 1983. Attempt made by respondent herein to canvass those findings before the Honourable Supreme Court also failed. The Special Leave Petitions filed by her were also dismissed. So, all these facts taken together, show that, de hors the patta proceedings before Settlement Authorities, petitioners are entitled to succeed. When they are allowed to recover possession on the basis of title, the present suit filed by respondent herein for the reliefs extracted above, is nothing but an abuse of process. Question of setting aside the decree will not arise in such case.

13. In a recent decision of the Honourable Supreme Court reported in 1998 (2) AIR SCW 1166 (K.K Modi v. K.N Modi), Their Lordships have considered as to what is meant by ‘abuse of process of Court’. Paragraphs 42 to 46 are relevant for our purpose, and they read thus:—

“Under Order 6, Rule 16, the Court may, at any stage of the proceedings, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure, (15th Edition, Volume II, page 1179, note 7) has stated that power under clause (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings, and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plaint.

The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase “abuse of the process of the Court” thus: ‘This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. .. .. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material”.

One of the example cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary of justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceedings being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts’ discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.

In the case of Greenhalgh v. Mallard (1947) 2 All E.R 255, the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and ‘say that he is relying on a new cause of action. In such circumstances, he can be met with the plea of res judicata or the statement or plaint maybe struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court.

“In Mcllkenny v. Chief Constable of. West Midlands Police Force (1980 2 All ER 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since i raised an issue identical to that which had been finally determined and the plaintiffs’ earlier criminal trial. The Court said even when it is not possible to strike out on the ground of issue estoppel the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to re-litigate question or issue which has already been decided again him even though the other party cannot satisfy the strict Rule of res judicata or the requirement of issue estoppel”.

(Emphasis supplied).

14. Even though learned counsel for respondent justified the action of respondent in filing the suit on the ground of alleged fraud, I do not think that the same could be accepted. The respondent challenged the decisions in Appeal, Second Appeal and also before the Honourable Supreme Court, and in all the Forums, the decision went against her. Therefore, the same should not be allowed to be re-opened by way of another litigation.

15. In the result, I allow the Civil Revision Petition, and plaint in O.S No. 33 of 1998, on the file of Sub Court, Tirunelveli, is struck off the file. There will be no order as to costs. CMP in this Revision is closed.

GS/RR/VCS