Madras High Court
P.Viswanathan vs Jadgish Chandran on 4 February, 2021
C.R.P.No.4046 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.02.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.4046 of 2019 and
C.M.P.No.26561 of 2019
P.Viswanathan ... Petitioner
Vs.
1. Jadgish Chandran
2. Sahasranamam ... Respondents
Civil Revision Petition is filed under Article 227 of the Constitution of
India to set aside the Fair and Final order dated 25.10.2019 made in
I.A.No.805 of 2014 in O.S.No.2 of 1994 on the file of Sub Court, Sankari.
For Petitioner : Ms.Zeenath Begum
For Respondents : Mr.T.Sai Krishnan
ORDER
The present Civil Revision Petition has been filed against the order
dated 25.10.2019 in I.A.No.805 of 2014 in O.S.No.2 of 1994 on the file of
Sub Court, Sankari by raising various grounds.
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C.R.P.No.4046 of 2019
2. The case of the petitioner, who is the 8th defendant in the above
suit is that he is the auction purchaser of the property in Survey No. 301 /
1B of Nedunkulam Village bearing an extent of 8.20 acres. The petitioner
has taken possession of the suit property and enjoying the same, in which
he already sold an extent of 6 acres out of the said 8.20 acres to one
Govindaraj, son of Karuppana Gounder of Nedunkulam village through
registered sale deeds dated 15.12.2003 and 05.01.2004. The said
property was purchased in the court auction and the respondents / plaintiffs
had filed a petition on 06.10.1986 under Order 21 Rule 90 of Code of Civil
Procedure impeaching the said court auction held on 02.01.1986. The said
petition was dismissed on 24.12.1993 and they has filed the present suit
without filing an appeal against the order in R.E.A.No.18 of 1988 dated
24.12.1993 and the said plaint has to be rejected, as it falls under
resjudicata as per order 7 Rule 11 (d) of Civil Procedure Code and there
was a delay in filing the petition and hence prayed for allowing the petition.
3. The respondents / plaintiffs had filed a counter denying all the
said averments and stated that there is no merit in the said averments and
it is only a false, frivolous, vexatious petition and by order dated 24.12.1993
in REA No.18 / 88, the learned District Munsif Court, Sankari has held that
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C.R.P.No.4046 of 2019
the petitioner has not produced any oral or documentary evidence to
substantiate hercase, hence the same was dismissed. Since the
application to set aside the sale was dismissed, the petitioner was forced to
file the suit for partition. The only remedy available to the respondent /
plaintiff was to file a suit for partition for separate possession seeking for
1/4th share. In consequence, the petitioner filed I.A.No.805 of 2014 under
Order 7 Rule 11 CPC to reject the plaint. The said petition filed by the
petitioner/ 8th defendant was considered and the court below had
dismissed the application on the ground that reading of the provision itself
shown that the plea of res-judicata is not granted for rejection of plaint.
The provision under Order 7 Rule 11 CPC is not attracted and also the
application has been filed at the belated stage and the application does not
warrant any merits and the same was dismissed. As the suit is pending
from the year 1994, the court below ordered to bear their respective costs.
Challenging the same, the present Civil Revision Petition is filed.
4. Heard the learned counsel for both the parties and perused the
materials available on record.
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C.R.P.No.4046 of 2019
5. It is seen that the petition filed under Order 7 Rule 11 of Civil
Procedure Code, which was dismissed by the learned Subordinate Judge,
Sankari is challenged in this Revision Petition. The petitioner, who is the
8th defendant in O.S.No.2 of 1994, had purchased 8.20 acres of land by
way of auction purchase covered in Survey No.301/1B of Nedunkulam
village and claims to have taken possession and in enjoyment of the
property and had made mutations to the entire 8.20 acres. The petitioner
also further claims that he has sold 6 acres out of 8.20 acres, as early as
15.12.2003 and 05.01.2004.
6. It is further submitted by the learned counsel for the petitioner that
having taken the property in court auction, the respondent/Rajalakshmi
(since deceased, respondents were impleaded) has filed a petition as
early as 06.10.1986 under Order 21 Rule 90 CPC seeking impeachment of
the court auction sale that held on 02.01.1986, in which the revision
petitioner was also contested and the petition was dismissed on merits as
against the plaintiff. The plaintiff had not chosen to file any further appeal
and the said order has become final and that being the case, O.S.No.2 of
1994 filed by the respondents / plaintiff for the same relief without filing the
appeal as against the order in REA No.18 / 1988 dated 24.12.1993, are
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C.R.P.No.4046 of 2019
barred by Law and on the ground of rejudicata, therefore, the petitioner
prayed that the trial court had wrongly mis-construed the provisions of Law
and dismissed the application, which ought not to have been dismissed
and the entire suit is barred by the Law of res-judicata, he pleaded.
7. It is the further case of the petitioner that he had also admitted that
the petition under Order 7 Rule 11 has been filed belatedly, still it can be
maintained, as the Law does not bar of filing such petition before passing
of the Judgment.
8. The learned counsel for the respondents / caveator, who is on
caveat had contended that as such, the petition filed under Order 7 Rule 11
is not maintainable for the reason that the revision petitioner, who was the
party to the earlier order, as an auction purchaser, on 24.12.1993 itself
when the order was passed in REA No.18 / 1988 in REP 29 of 1985 in
O.S.No.1396 of 1981 had every knowledge and he being the party-
defendant in O.S.No.2 of 1994 has chosen to file the petition to reject the
plaint only in the year 2014. That apart, since the application to set aside
the sale has been dismissed holding that the plaintiff had no right to file the
petition, the only remedy available to the plaintiff is to file a suit for partition
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C.R.P.No.4046 of 2019
and separation possession of 1/4th share. On the above facts and
circumstances, the counsel prayed that the suit is maintainable and the
revision petitioner has not made any case for rejection of the plaint.
9. On the perusal of the records, it is seen that initially, a relief of
partition for separate possession was sought by the plaintiff on the basis
that the suit schedule property were self acquired property by one
Duraisami Gounder and the said person died intestate and the
respondents / plaintiffs are the legal heirs having the shares in the suit
schedule property. The 3rd defendant had filed a suit in O.S.No.1396 of
1981 on the file of District Munsif Court, Bhavani and subsequently
transfered to District Munsif Court, Tiruchengode and renumbered in
E.P..No.20 of 1985 in which the properties were got for sale. As against
E.P.No.20 of 1985, E.A.No.300 of 1986 was filed under Order 21 Rule 90
seeking for setting aside the same. At that point of time, once over again
the said E.P. was transfered to District Munsif Court, Sankari and
renumbered as REA No.18 of 1988 and same was dismissed on
24.12.1993. However, a subsequent suit in O.S.No.2 of 1994 is filed
seeking for a partition for dividing the suit property into four equal shares
and allotting one such share to the respondents /plaintiff.
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C.R.P.No.4046 of 2019
20. The petitioner herein has filed this revision petition as against the
prayer of rejection of plaint filed under Order 7 Rule 11. The petitioner's
counsel would submit that no separate suit would lie, as the same is barred
by res-judicata and the respondent / plaintiff having not challenged the
order in R.E.A. No.18 of 1988 by way of appeal, which was dismissed on
24.12.1993, the respondents / plaintiff has chosen to file a suit in O.S.No.2
of 1994 only to stall the entire execution proceedings and in fact, an
application seeking for injunction was filed by the respondents and the
same was allowed and to an appeal by this revision petitioner in
C.M.A.No.31 / 1991, this Court by order dated 21.02.1997 partly allowed
the appeal, thereby setting aside the order passed in injunction application.
21. After the said order, the I.A. No.805 of 2014 was filed under
Order 7 Rule 11 in the year 2014. The petitioner further submitted that no
doubt, one has to comply with reasons as contemplated under Order 7
Rule 11 seeking for rejection of plaint. If the petitioner has made out any
one of the conditions stipulated under Order 7 Rule 11, the court has got
every power to reject the plaint at any stage before passing the Judgment.
For ready reference, Order 7 Rule 11 of CPC is extracted hereunder:-
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C.R.P.No.4046 of 2019
"Order 7 Rule 11 : Rejection of Plaint - The plaint shall
be rejected on the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the
plaintiff, on being required by the Court to so correct the
valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the requisite
stamp - paper within a time to be fixed by the Court, fails to do
so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
[(e) where it is not filed in duplicate;
[(f) where the plaintiff fails to comply with the provisions
of rule 9:]]
[Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite stamp-
papers shall not be extended unless the Court, for reasons to
be recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting the valuation or
supplying the requisite stamp-papers, as the case may be,
within the time fixed by the Court and that refusal to extend
such time would cause grave injustice to the plaintiff.]
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C.R.P.No.4046 of 2019
22. On going through the above said provision, it is clear that the
Hon'ble Supreme Court as well as this Court, in various judgments had
held that while rejecting the plaint under Order 7 Rule 11, the trial court has
to strictly follow the conditions imposed under Order 7 Rule 11 CPC. No
doubt, the trial court can entertain a petition seeking for rejection of a plaint
under Order 7 Rule 11 at any stage before passing the Judgment. But the
conduct of the parties, and the duration of pendency of the suit should also
be taken into account, while entertaining an application under Order 7 Rule
11 of CPC.
23. As it could be seen from the present case, no doubt, the suit is of
the year 1994 and the injunction application filed by the respondent /
plaintiff came to be allowed by the trial court in E.P.No.20 of 1985, the said
order was challenged by way of filing C.M.A. No.31 of 1991 by this
petitioner and this Court by order dated 21.02.1997 has partly allowed the
Civil Miscellaneous Appeal. In the meanwhile, the petitioner / defendant
has also filed written statement to the O.S.No.2 of 1994 as early as on
20.11.2005, thereafter, nine years later, the petitioner has filed this petition
seeking rejection of plaint under Order 7 Rule 11 of CPC that too when the
matter was taken up for trial.
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C.R.P.No.4046 of 2019
24. It is clear from the averments made in the affidavit filed in support
petition filed by the petitioner under Order 7 Rule 11 of CPC, seeking
rejection of plaint, the petitioner / defendant has not specifically mentioned
how the suit is barred under Order 7 Rule 11 (d) of CPC, which is invoked
by the respondent. A mere statement of the petitioner that the respondents
failed to file appeal against the order dated 24.12.1993 made in REA No.18
of 1988 will not be sufficient, as the suit which ended in the execution
proceedings, was O.S.No.1396 of 1981 and the same was a money suit
seeking recovery of money, in which, property was brought for sale in court
auction. But in the present suit, O.S.No.2 of 1994 is filed for seeking
division of entire suit property into four equal shares on the basis that
Duraisamy Gounder, who had inhibited the suit schedule property on his
own and on his demise as intestate, the legal heirs of the said Duraisamy
Gounder have equal shares in the said property left behind by the
Duraisamy Gounder. While that being the case, there is no bar for filing a
fresh suit seeking for partition.
25. It is clear that in the pleadings seeking for rejection of plaint, the
petitioner has not raised any valid reasons to attract any provisions of
Order 7 Rule 11 CPC, much less to say Order 7 Rule 11 (d) of CPC. The
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C.R.P.No.4046 of 2019
Sub Court at Sankari has rightly rejected the said application and this Court
has no inclination to interfere with the said order. No doubt the petition
seeking for rejection of plaint can be filed at any time before Judgment.
The conduct of the parties are to be taken into account while considering
the same. When the suit is pending from the year 1994, the petitioner has
chosen to invoke a petition under Order 7 Rule 11 of CPC only in the year
2014, which is almost 20 years. When the petitioner / defendant has been
arrayed as a defendant in the year 1994 itself, from the year 1994, almost
20 years, he has not taken any steps to file the said petition.
26. When nothing prevented the petitioner from invoking the
provisions under Order 7 Rule 11 of CPC much earlier, the said provision
has been invoked belatedly. It is also seen that the court auction sale took
place in the year 1986 and the respondents have sought for impeaching
the court auction sale that held on 02.01.1986. When the dispute persist
from the year 1986, the callous attitude of the petitioner can be visualized.
There is no valid and sufficient reason shown by the petitioner/ defendant
for not filing the petition under Order 7 Rule 11 CPC, for a long period of
time.
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C.R.P.No.4046 of 2019
27. Under the above stated facts and circumstances of the case, this
Court finds no reason for interfering with the orders passed by the court
below in I.A.No.805 of 2014 in O.S.No.2 of 1994 dated 25.10.2019 and the
present Civil Revision Petition is dismissed. Since the suit is pending from
1994, this Court hereby directs the trial court to complete the entire suit
proceedings on a day today basis, within a period of six months from the
date of receipt of copy of this Order. No costs. Consequently, connected
miscellaneous petition is closed.
04.02.2021
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
ssd
To
1. The Sub Court,
Sankari
2. The Section Officer,
V.R.Section,
High Court, Madras
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C.R.P.No.4046 of 2019
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.4046 of 2019 and
C.M.P.No.26561 of 2019
04.02.2021
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