Kerala High Court
N.G.Madhavan Nair vs Udayan on 12 February, 2025
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OPC 2825/24
2025:KER:13545
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
OP(C) NO. 2825 OF 2024
OS NO.645 OF 2024 OF II ADDITIONAL MUNSIFF COURT ,NEYYATTINKARA
PETITIONER/S:
N.G.MADHAVAN NAIR, AGED 84 YEARS
S/O GOVINDA PILLAI, TC 6/143(1), KEERTHANA, KODUNGANOOR
DESOM, KODUNGANOOR P.O., VATTIYOORKKAVU VILLAGE,
THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM, PIN - 695013
BY ADV LATHEESH SEBASTIAN
RESPONDENT/S:
UDAYAN, AGED 59 YEARS
S/O GOPALAN NAIR, CHETTIKKUDI VEEDU, SANTHA NAGAR, ANTHIYOOR
DESOM, BALARAMAPURAM, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN - 69512
BY ADVS.J.R.PREM NAVAZ J.R
MUHAMMED SWADIQ(K/1860/2022)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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OPC 2825/24
2025:KER:13545
JUDGMENT
(Dated this the 12th day of February 2025)
The petitioner is the defendant and respondent is the plaintiff
in O.S. No. 645/2024 on the files of second Additional Munsiff Court,
Neyyattinkara. The suit was filed for a decree of permanent
prohibitory injunction restraining the petitioner from evicting the
respondent from a shop room.
2. The brief facts of the case of the petitioner are as
follows: - The respondent, prior to the filing of the suit, vacated the
premises and handed over vacant possession of the building. The suit
was filed thereafter, raising a false cause of action of attempt of
forceful eviction against the petitioner herein. The respondent
thereafter filed I.A No. 5/2024, as Ext P3, seeking direction to the
petitioner to hand over shop room to the respondent failing which, the
Deputy superintendent of Police was directed to break open the room
and hand over possession of the building to the respondent.
Meanwhile, the respondent filed a writ petition before this court in
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W.P. (C) No. 30752/2024, wherein the petitioner and the subsequent
purchaser of the property as well as her father were made parties,
seeking police protection against interference of possession. The said
petition was dismissed wherein police protection was denied, but
protection to life was granted, if warranted.
3. In the above background, the petitioner filed I.A. No
6/2024, Ext P6, for rejecting the plaint for want of cause of action
against the respondent/plaintiff, as he has no title in the plaint
schedule property at present after transfer of the property. The learned
Munsiff dismissed Ext P6 petition, by Ext P8 order dated 01.10.2024,
against which the present original petition stands filed.
4. Heard counsels appearing on either sides.
5. The counsel for the petitioner contends that since the
respondent is not the owner in possession of the plaint schedule
building, a suit for permanent prohibitory injunction against forceful
eviction will not lie. It is the case of the petitioner that he has sold
the property to a third party, prior to the institution of the suit.
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According to the petitioner, the actual owner is not impleaded in the
suit. He further contends that from the pleadings in the Ext.P3 petition
itself, it is evident that the respondent is not in possession of the
building and the present owner has occupied it. Being aware of this
fact, the respondent/plaintiff has neither initiated steps to implead the
present owner in the suit nor has sought for proper reliefs. Thus, the
intent of the plaintiff is only to harass the petitioner forcing him to
conduct the case in the absence of any cause of action as against him.
Thus, the lower court ought to have considered the petition to reject
the plaint, as the suit is devoid of cause of action against the
petitioner/defendant.
6. The defendant, in Ext P6, has stated that the agreement
with the plaintiff with respect to the plaint schedule shop room has
ended on 11.04.2024 and the agreement has been cancelled due to the
default in paying rent by the plaintiff. Subsequently, the plaintiff, by
way of notice, was asked to vacate the said premises and he was also
made known that the defendant/petitioner was about to dispose the
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property. Hence, the plaintiff is not having any right over the plaint
schedule shop room. It is also affirmed that the said property in the
name of the defendant was already sold to a stranger and has also
effected mutation in her name. Thus, it is contended that the plaint is
liable to be rejected as no cause of action exists as against the
defendant, since the property is not in his name when the suit was
filed.
7. The counsel for the respondent in their objection to Ext
P6 has contended that the defendant himself admitted the fact that
though the agreement with the plaintiff has ended on April 2024, the
plaintiff had paid the rent till June of 2024. The contention that the
plaintiff has vacated the shop room by himself after the receipt of
notice, is vehemently opposed, alleging that it was factually wrong.
If that be so, there is no necessity to file an application to break open
the lock of the scheduled room, as stated in the affidavit of Ext P6.
The respondent /plaintiff has also filed a commission application to
ascertain the status quo of the shop room, which is pending
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consideration. Thus, it is averred that the application to reject the
plaint is to be dismissed.
8. A plaint shall be rejected for the reasons stipulated
under Order 7 Rule 11 CPC. Clause (a) to the said Order provides the
rejection of a plaint for want of cause of action. In the instant case,
the petitioner contends that no cause of action exists as against the
petitioner, since he has already sold the plaint schedule shop room in
the name of a stranger on 14.06.2024 as per a document of the year
2024, of Poovar SRO. According to the petitioner, the agreement with
the respondent has ended on 11.04.2024 and the respondent himself
has vacated the premises and handed over the possession to the
petitioner. But, in the affidavit filed along with the application to
reject the plaint, the defendant himself admits that even after the
agreement was put to an end, rent was paid by the plaintiff to the
defendant.
9. It is also pertinent to note at this juncture that if at all
the plaintiff had vacated the premises on his own and possession was
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handed over to the defendant, then the application seeking assistance
of the police for breaking open the door of the plaint schedule shop
room was unnecessary. Thus, these discrepancies are evidently
visible in the case made out by the petitioner/defendant. Also, a
commission application is pending consideration through which the
current status of the shop room can be ascertained. It is the specific
case of the plaintiff that the defendant had forcefully attempted to
evict the plaintiff from the shop premises unlawfully, without
resorting to due course of law where he has not even defaulted a
single month's rent.
10. The issue laid before this court is whether misjoinder
of parties in a suit could be raised, as an absence of cause of action
against them, making a plaint liable to be rejected. The Apex court in
Prem Lala Nahata and Another v. Chandi Prasad Sikaria
[2007(2) SCC 551]; has held that where a plaint suffers a defect of
misjoinder of parties or misjoinder of cause of action, the law itself
makes clear that the perceived defect does not make the suit one
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barred by law or liable to be rejected. This aspect is made clear from
Rules 3A, 4 and 5 of Order 1 of CPC which is also emphasised by
Order 1 Rule 9 of the Code which provides that no suit shall be
defeated by reason of nonjoinder or mis joinder of parties and if so,
the court shall make every endeavour to deal with the matters in
controversy so far as it relates to the rights and interests of the parties
before it.
11. It is also a settled position of law that unless and until
an abuse of process of law is occasioned, no plaint is liable to be
rejected for reasons outside the scope of Order 7 Rule 11 CPC. Thus,
considering the facts and circumstances of this case and the rulings
covering the said aspect, I deem it appropriate to hold that an
application to reject plaint at this stage of the suit is highly premature
for the sole reason of alleged misjoinder of parties. The lower court
has already found that since the suit is one for permanent prohibitory
injunction against forceful eviction, and the specific case of the
plaintiff being that the defendant has tried to evict him, this needs an
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adjudication upon merits. Hence, I find substance in the order of the
lower court in dismissing the application to reject the plaint.
Therefore, I have no hesitation in holding that Ext P8 is in order and
hence, no interference is warranted with the matter in hand under Art.
227 of the Constitution of India.
The Original Petition(C) stands dismissed.
Sd/-
BASANT BALAJI
JUDGE
dl/
2025:KER:13545
APPENDIX OF OP(C) 2825/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S NO.645/2024 OF
MUNSIFF COURT, NEYYATTINKARA
Exhibit P2 TRUE COPY OF THE SALE DEED BEARING NO.909/2024 OF
POOVAR SRO DATED 14.06.2024
Exhibit P3 TRUE COPY OF I.A NO.5/2024 IN O.S.NO.645/2024 OF
MUNSIFF COURT, NEYYATTINKARA DATED 29.08.2024
Exhibit P4 TRUE COPY OF THE OBJECTION OF THE PETITIONER TO
EXT.P3 PETITION DATED 02.09.2024
Exhibit P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT
IN W.P.(C) NO.30752/2024 DATED12.11.2024
Exhibit P6 TRUE COPY OF I.A NO.6/2024 IN O.S NO.645/2024 OF
MUNSIFF COURT, NEYYATTINKARA DATED 24.09.2024
Exhibit P7 TRUE COPY OF THE OBJECTION OF THE RESPONDENT TO
EXT.P6 PETITION DATED 30.09.2024
Exhibit P8 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT,
NEYYATTINKARA IN I.A NO.6/2024 IN O.S NO.645/2024
DATED 15.10.2024
Exhibit P9 TRUE COPY OF THE W.P (C) NO 30752 OF 2024 OF THIS
HON'BLE COURT WITHOUT EXHIBITS
