Madras High Court

S.Heerachand Jain vs T. Namasivayam on 29 January, 2021

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                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               RESERVED ON: 19.07.2021

                                              PRONOUNCED ON: 30.07.2021

                                                          CORAM:

                               THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                               C.R.P. (PD) No. 963 of 2021
                                                          And
                                                 C.M.P.No. 7758 of 2021


                     S.Heerachand Jain                ... Petitioner/Petitioner/2nd Defendant

                                                      -Vs-

                     T. Namasivayam                   ... Respondent/Respondent/Plaintiff



                     PRAYER: Civil Revision Petition filed under Article 227 of the
                     Constitution of India against the fair and decreetal order dated 29.01.2021
                     made in I.A.No.1 of 2019 in O.S.No. 4708 of 2018 on the file of the XVI
                     Assistant City Civil Court, Chennai.
                                                             ***
                                     For Petitioner   :       Mr. S.Heerachand Jain
                                                              Party-in-person

                                     For Respondent   :       Mr. Shah and Shah




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                                                         ORDER

This Revision Petition has been filed by the 2nd defendant in O.S.

No.4708 of 2018, pending on the file of the XVI Assistant City Civil Court,

Chennai, aggrieved by the order dated 29.01.2021 dismissing the

application in I.A. No.1 of 2019 filed by him under Order VII Rule 11 CPC

to reject the plaint.

2. O.S. No. 4708 of 2018 has been filed by the respondent herein

seeking a judgment and decree in the nature of permanent injunction

restraining the defendants from interfering with peaceful possession and

enjoyment of a shop portion in the name and style of Vijaya Sundhari Chats

measuring 100 sq.ft., in No. 81/39, Avathana Pappair Street, Choolai,

Chennai 600 012, except by due process of law.

3. In the plaint it had been stated that the 1st defendant, S. Mekala

was the absolute owner of the property and that the plaintiff, T.

Namasivayam entered into an unregistered lease agreement with her on

30.06.2010 and had paid an advance of Rs. 2,50,000/- (Rupees two lakhs

and fifty thousands only). When the lease expired on 29.06.2015, the 1st

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defendant demanded a further sum of Rs. 2,50,000/- (Rupees two lakhs and

fifty thousands only) and the plaintiff paid the said sum and entered a fresh

lease agreement. The plaintiff claimed tht he had been running the shop

without disturbance for the past eight years.

4. It had been further stated on 01.08.2018, the 1st defendant

requested the plaintiff to give the original lease agreement for production

before the Income Tax Officials. It was given by him but was not returned

by the 1st defendant.

5. It had been further stated that on 04.09.2018, the 2 nd and 3rd

defendants entered the shop with several other persons and threw everything

inside outside and threatened that they would lock the shop. It is under these

circumstances that the suit had been filed seeking permanent injunction

from unlawful dispossession.

6. Along with the plaint, 6 photographs and gas receipts alone had

been filed as documents.

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7. The revision petitioner/2nd defendant entered appearance and

filed I.A. No. 1 of 2019 under Order VII Rule 11 CPC seeking to reject the

plaint.

8. In the affidavit filed in support of the application, the revision

petitioner/2nd defendant had a separate set of facts to narrate.

9. He claimed that he filed C.S. Nos. 561 of 2002 and 562 of 2002

for specific performance of agreements of sale with respect to the suit

property against G. Selvamurthy and G. Ashok Kumar. The suits were

decreed by judgment dated 01.03.2004. Sale Deed was also executed by the

Assistant Registrar (O.S.I) and registered as Document No. 346 of 2005 in

the office of the Sub Registrar, Purswalkam on 06.01.2005. Original Side

Appeals in O.S.A. Nos. 273 of 2005 and 274 of 2005 were dismissed on

22.02.2008. Special Leave Petitions in SLP (Civil) Nos. 18842 and 18843

of 2008 were also dismissed on 06.12.2013. He had filed E.P. Nos. 127 of

2005 and 128 of 2005 for delivery of possession. The Master, High Court,

Madras, on 14.06.2018 directed execution of warrant for delivery of

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possession by breaking open of locks and also granted police protection.

The Bailiff submitted a report dated 14.09.2018 that while executing the

warrant, a tenant, Namasivayam (the plaintiff in O.S. 4708 of 2018) sought

three days’ to vacate and later on 10.09.2018 handed over vacant possession

and also gave a letter acknowledging the same. The Execution Petitions

were then posted before the Master on 26.09.2018 and the counsel for

Namasivayam appeared and after considering the submissions made and the

report of the Bailiff, the Master terminated E.P. Nos. 127 of 2005 and 128

of 2005 by order of even date.

10. It had been further stated by the revision petitioner that the very

same Namasivayam, then created a fictitious person in the 1 st defendant,

Mrs. Mekala, claiming thaqt she was the owner of the property, whereas the

defendants in the Civil Suits, G. Selvamurthy and G. Ashok Kumar were the

actual owners of the property. It is was stated that the plaint in O.S. No.

4708 of 2018 contains pleadings false to the knowledge of the plaintiff.

11. It had been further stated that subsequent to taking possession,

the revision petitioner had obtained permission from the authorities to

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demolish the building and had also demolished the building. It is claimed

that the plaintiff, Namasivayam filed I.A. No. 3 of 2019 in this regard and it

is therefore imputed that he was well aware of the truthful facts and that

therefore the cause of action pleaded was false the plaint should have been

rejected.

12. Heard arguments advanced by the revision petitioner who

appeared as party-in-person and M/s. Shah and Shah, learned counsels for

the respondent.

13. For the sake of convenience, the parties shall be referred as

plaintiff and 2nd defendant. The 2nd defendant in O.S. No.4708 of 2018 is

the revision petitioner and the plaintiff in O.S. No. 4708 of 2018 is the

respondent. The 2nd defendant had filed I.A. No. 1 of 2019 to reject the

plaint in O.S. No. 47-8 of 2018 under Order VII Rule 11 CPC. That

application had been dismissed by the XVI Assistant Judge, City Civil

Court, Chennai, leading to the filing of this Revision Petition by the 2nd

defendant.

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14. In Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead

Through Legal Representatives and Others reported in (2020) 7 SCC 366,

the Honourable Supreme Court had held as follows:-

“23.1. We will first briefly touch upon the law applicable for deciding an application under Order 7 Rule 11 CPC, which reads as under:

“11. Rejection of plaint.—The plaint shall be rejected in the following cases—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to 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;

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(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.”

23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the

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evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.

23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

23.4. In Azhar Hussain v. Rajiv Gandhi [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12)

“12. … The whole purpose of conferment of such powers is to ensure that a litigation which is

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meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”

23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.

23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.

23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding

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the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137]

23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I

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Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v.

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R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941] .

23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.

23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557]. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315, followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998)

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2 GLH 823] .

23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.

.......

24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam [Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p. 60, para 24)

“24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited

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to the actual infringement of the right sued on but includes all the material facts on which it is founded.”

24.2. In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p. 470, para

“5. … The learned Munsif must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.…” 24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] this

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Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.”

[ Emphasis Supplied]

15. In K.Akbar Ali Vs. K.Umar Khan and Others reported in

2021 SCC OnLine SC 238, the Hon’ble Supreme Court observed as

follows:-

“5. It is well settled that while considering an application under Order VII Rule 11 of the CPC, the question before the Court is whether the

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plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order VII Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant.

.......

7. In any case, an application under Order VII Rule 11 of the CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC v. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70: AIR 1998 SC 634, clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.

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........

12. It is patently clear from a meaningful reading of the plaint in its entirety that the plaintiff has no cause of action against the first defendant being the owner of the suit property, the Power of Attorney being patently invalid. The inter-se dispute between the heirs of the deceased-Defendant No. 1 will not confer any right on the petitioner as his claim is based upon a pre-emption agreement executed by a power of attorney, which does not authorize the attorney to deal with the property of the said defendant.

13. The Division Bench of the High Court has done substantial justice by nipping in the bud, a suit which is ex facie not maintainable for want of cause of action against the defendants or any of them, thereby saving precious judicial time as also inconvenience and expenditure to the parties to the suit.”

[ Emphasis Supplied]

16. The principles laid down direct that it must be determined

whether a meaningful reading of the plaint discloses a cause of action. It

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must also be determined whether the plaintiff had come to Court with clean

hands.

17. In this case, the plaintiff had suppressed one very vital fact,

namely the proceedings before the Master of the High Court, Madras, where

his Counsel had appeared. He had built a cause of action. He is God

personified in creating a fictitious person, Mrs. Mekala, the 1 st defendant.

Not only should the Court read the plaint, but Court documents have to be

perused to determine whether the plaintiff had disclosed truthful facts

before the Court.

18. In the plaint, the plaintiff claims to be a lessee under the 1 st

defendant. He claims that the original of the 2nd lease agreement had been

handed over to the 1st defendant. He had produced the 1st lease agreement.

He had not produced the copy of the 2nd lease agreement. He had not

produced any document that he was in possession on the date of filing of the

suit. He had not disclosed that he handed over possession to the Court

Bailiff., who had taken lawful possession. These are facts which stare in the

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face of the plaintiff. The Court records speak for themselves.

19. I am deeply disappointed with the order passed by the XVI

Assistant City Civil Court Judge. A duty is case on the Presiding Officer of

the Trial Court to probe deep to determine the facts. He has a duty to

examine the records of parallel judicial proceedings. Rule 75 of the Civil

Rules of Practice give that power. I hold that the learned Judge should have

applied his mind with the diligence which is expected. As directed by the

Hon’ble Supreme Court,

“The learned Munsif must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.…” - T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] “Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. - ITC v. Debts

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Recovery Appellate Tribunal reported in (1998) 2 SCC 70 : AIR 1998 SC 634.

“The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.” - Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602].

“The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.”

- Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and Others reported in (2020) 7 SCC 366.

“Moreover, the provisions of Order VII Rue 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are

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not allowed to consume the time of the Court.” - K.Akbar Ali Vs. K.Umar Khan and Others reported in 2021 SCC OnLine SC 238.”

20. It is palpably evident that the plaint in O.S. No. 4708 of 2018

has falsity as it legs to stand on. Such a plaint cannot be permitted to be on

the register. It would only pollute the system. It has to rejected and is

directed to be struck off.

21. In the result, the Civil Revision Petition is allowed with costs

of Rs. 25,000/- (Rupees Twenty Five Thousands only). The suit in O.S. No.

4708 of 2018, pending on the file of the XVI Assistant City Civil Court,

Chenni is rejected and is directed to be struck off the Suit Register.

Connected Miscellaneous Petition is closed.

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