Madras High Court
K.V.P.Bhoominathan vs D.Ramesh on 4 January, 2021
C.M.A.No.4456 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.4456 of 2019
C.M.P.Nos.25279 & 25281 of 2019
1.K.V.P.Bhoominathan
2.B.Thenmozhi ..Appellants
Vs.
1.D.Ramesh
2.Devana Kangeya Gounder ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1
(u) of CPC, to set aside the decree and judgment dated
21.08.2019 on the file of the III Additional District and Sessions
Judge, Dharapuram and passed in A.S.No.32 of 2013 reversing
(remand back) the decree and judgment dated 03.08.2011 and
made in I.A.No.856 of 2011 in O.S.No.177 of 2011 on the file of
the Sub-ordinate Court, Dharapuram.
For Appellant : M/s.S.Sasikala
For Respondents : No-appearance
1/7
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C.M.A.No.4456 of 2019
JUDGMENT
The Judgment and Decree dated 21.08.2019 passed in
A.S.No.32 of 2013 is under challenge in the present Civil
Miscellaneous Appeal.
2. The suit was instituted by the first respondent in the
present appeal for partition. The suit for partition is filed on the
ground that the first respondent/plaintiff is having a right over the
property. The appellant herein filed an interlocutory application in
I.A.No.856 of 2011 for rejection of plaint under Order VII Rule 11
(d) r/w 151 of C.P.C. The Trial Court allowed the interlocutory
application in favour of the appellants herein and rejected the
plaint mainly on the ground that the suit is barred by limitation
and filing the suit straight away for partition and recovery of ½ of
the suit properties is not maintainable without filing a suit for
declaration to set aside the sale deeds. The findings of the trial
Court are that the first respondent in the interlocutory application
has so far not filed any suit to cancel the sale deeds executed by
his father. Thus, the suit is not maintainable. Accordingly, the
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C.M.A.No.4456 of 2019
plaint was rejected. Challenging the said order, the first
respondent/Mr.D.Ramesh filed an appeal in A.S.No.32 of 2013 and
the first Appellate Court has elaborately considered the facts and
circumstances in its judgment.
3. The crux of the findings of the first Appellate Court is that
the interlocutory application was filed under Order VII Rule 11 of
CPC to reject the plaint filed by the first respondent for partition.
The provision of Order VII Rule 11 of C.PC. was extracted by the
first Appellate Court in its judgment. The first Appellate Court
arrived a conclusion that the grounds on which the plaint was
rejected by the trial Court should not falling under the provisions
of Order VII Rule 11 of C.P.C. Therefore, those grounds are to be
adjudicated on merits by the parties during the trial.
4. This Court is of the considered opinion that when a
petition to reject the plaint is filed under Order VII Rule 11 of
C.P.C, then the Courts are expected to find out whether the
ingredients enumerated in Order VII Rule 11 of C.P.C are met out
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C.M.A.No.4456 of 2019
or not. In other words, the plaint can be rejected, if the grounds
raised by the parties are falling within the ambit of Order VII Rule
11 of C.P.C and not otherwise. If at all the other grounds raised
regarding the maintainability of the suit, those grounds are to be
adjudicated by the trial Court at the time of deciding the suit and
on those grounds, plaint cannot be rejected. It is not as if the
plaint can be rejected at the initial stage in respect of the other
grounds raised in the parties beyond the scope of Order VII Rule
11 of C.P.C. The Courts are confined to decide the petition to
reject the plaint strictly within the scope of Order VII Rule 11 of
C.P.C and another grounds raised are to be adjudicated with
reference to the documents and evidence placed to the litigations.
In the event of rejecting the plaint on the other ground,
undoubtedly, the same would cause prejudice to the rights of the
parties concerned. Therefore, it is necessary that the grounds
rejection for the plaint raised by the parties are to be strictly
considered with reference to the grounds set out in Order VII Rule
11 of C.P.C and not otherwise. In the present case, the trial Court
allowed Interlocutory Application filed by the appellant mainly on
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C.M.A.No.4456 of 2019
the ground of limitation and further, on the ground that the relief
for partition is not maintainable as the first respondent has not
filed any suit to cancel the sale deed executed by his father. Those
grounds are to be adjudicated by the parties in a trial and on the
basis of those grounds, plaint cannot be rejected, more
specifically, by invoking the provision of Order VII Rule 11 of
C.P.C. Thus, the trial Court has committed an error in allowing the
petition and the first Appellate Court has rightly set aside the
judgment of the trial Court on the ground that the grounds relied
on by the trial Court is not in consonance with the provision
enumerated in Order VII Rule 11 of C.P.C.
5. This Court is of the considered opinion that the first
Appellate Court has rightly arrived a conclusion and there is no
perversity or infirmity as such. The parties are bound to adjudicate
the issues with reference to the documents and evidence available
and the suit is to be decided on merits by affording opportunity to
all the parties concerned. However, the trial Court is directed to
dispose the suit as expeditiously as possible preferably within a
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C.M.A.No.4456 of 2019
period of six months from the date of receipt of a copy of this
Order. The parties to the suit are directed to co-operate for earlier
disposal of the suit and the parties are restrained from taking
unnecessary adjournments before the trial Court. The trial Court
must record the reason for adjournments and all unnecessary
adjournments on filmsy grounds are liable to be rejected.
6. With these observations, the Civil Miscellaneous Appeal
stands dismissed. Consequently, connected miscellaneous
petitions are also closed.
04.01.2021
ssb
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
To
1.The III Additional District and Sessions Judge, Dharapuram.
2.The Sub-ordinate Court, Dharapuram
S.M.SUBRAMANIAM, J.
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C.M.A.No.4456 of 2019
ssb
C.M.A.No.4456 of 2019
04.01.2021
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