Madras High Court
S. Thamees Banu vs S.N. Syed Mohammed Abuthahir @ on 30 July, 2021
C.M.A(MD).No.1040 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.07.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP(MD).No.1040 of 2021 and
CMP(MD).No.6061 of 2021
S. Thamees Banu .. Petitioner
Vs.
S.N. Syed Mohammed Abuthahir @
S.N. Syed Afzal ... Respondent
PRAYER:- Civil Revision Petition is filed under Article 227 of the
Constitution of India to direct the Judge of the Family Court, Dindigul to
number the application in un-numbered I.A.No.... 2021 in O.S.No.5 of
2021 and to take the application on file.
For Petitioner : Mrs.S. Mahalakshmi
ORDER
The revision is directed against the order of return made in
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C.M.A(MD).No.1040 of 2021
un numbered I.A.No.... 2021 in O.S.No.5 of 2021 and for direction to the
learned Judge of the Family Court, Dindigul to take the petition filed under
Order 7 Rule 11 CPC on file.
2. The revision petitioner is the defendant. Admittedly, the
petitioner is the wife of the respondent / plaintiff. The respondent /
plaintiff has filed the suit in O.S.No.5 of 2021 claiming the relief to declare
the dissolution of marriage solemnized between the petitioner and the
respondent on 17.03.2019 at Pon-saravana Marriage Hall, Pudukkottai by
granting a decree of divorce on mutual consent and that the same is
pending on the file of the Family Court, Dindigul. The revision petitioner,
after entering into appearance, has filed the petition under Order 7 Rule 11
CPC to reject the plaint and the learned Judge has passed an order
returning the petition. Aggrieved by the said order of return, the
defendant has come forward with the present revision.
3. The defendant, in the petition filed for rejection of the
plaint has raised two grounds:
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C.M.A(MD).No.1040 of 2021
(i) Plaint does not disclose any cause of action
(ii) Valuation of the suit and payment of the Court fee is in correct.
4. The plaintiff, by alleging that the defendant has caused
mental harassment, that he was assaulted by the brothers of the defendant,
that the defendant had refused to live with the plaintiff and that thereafter,
the plaintiff has communicated with the defendant personally his Talaq
expressing his inability to resume the marital relationship with the
defendant, filed the above suit for declaring the dissolution of marriage.
But according to the defendant, there was no such communication of
Talaq, that the defendant has not consented for filing any such case for
divorce on mutual consent, that the plaintiff has absolutely no cause of
action for filing the plaint and that he has wrongly valued the suit under
Section 27(c) of the Tamil Nadu Court Fees and Suit Valuation Act.
5. It is necessary to refer the order of return made by the
learned Judge hereunder:
“1) The facts pleaded in para 4 and 5 will
not be going to be relied upon by the petitioner for the
Rejection of the plaint. So the para 4 and 5 to be
removed.
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C.M.A(MD).No.1040 of 2021
2) The petitioner has stated in para 8 that
the plaintiff pronounced Talaq on 13.01.2021 and
13.02.2021 and 13.03.2021 in the affidavit filed by her.
3) It is the duty of the Court before
admitting the Plaint that was there any pronouncement
of Talaq pleaded in the plaint. The petitioner himself
stated that there is a pleading as to the pronouncement
of Talaq in para 23 of the plaint. The plaint allegation
to be been before admitting the plaint. The defence set
up not to be considered for rejection of the plaint.
4. The Court cannot reject the plaint
without giving sufficient time for when the plaint is not
stamped sufficiently.
5. The petitioner relies for his claim both
the question of law and facts. The question of facts to
the rejection of plaint can be decided after recording
evidence. So it is returned for the reason as how the
Court can entertain the petition at this stage.”
6. As rightly contended by the learned counsel for the
petitioner, the learned trial Judge has passed the order practically
rejecting / dismissing the petition but under the caption of “return”. No
doubt, it is settled law that the Court can reject the plaint at any point of
time even before the registration of the suit or after issuance of the
summon or at any time before the pronouncement of Judgment. No doubt,
as rightly pointed out the learned trial Judge, in the order of return, that
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C.M.A(MD).No.1040 of 2021
the plaint allegations are only to be taken into account for deciding as to
whether the plaint is liable for rejection and the defence pleaded by the
other side should not be considered. But, in the case on hand, admittedly,
the plaintiff is very much available and the defendant, after giving notice
to the learned counsel for the plaintiff, has filed the above petition under
Order 7 Rule 11 CPC before the Family Court, but the learned Judge
without taking the petition on file, has gone into merits of the case itself
and returned the petition.
7. No doubt, as per the Order 7 Rule 11(b) CPC if the plaint
is under valued, the same cannot be rejected straight away without giving
time to correct the valuation. Similarly, Order 7 Rule 11(c) CPC
contemplates that the plaint is liable to be rejected that has been written
upon paper, which has not been duly stamped. But at the same time the
Court is bound to give some time to supply the deficit Court fee.
8. In the case on hand, the learned Judge has observed that the
Court cannot reject the plaint without giving sufficient time when the
plaint is not stamped sufficiently. As rightly contended by the learned
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C.M.A(MD).No.1040 of 2021
counsel for the petitioner, it is not their case that they have sought for
rejection of the plaint straight away without deciding the valuation of the
suit and Court fee and without giving any time for correcting the same. As
rightly argued by the learned counsel for the petitioner, the trial Court
ought to have taken the petition on file and decide the same in accordance
with law, but without adopting such a course, the learned trial Judge has
straight away returned the petition practically rejecting the petition itself.
Since the numbering of the petition is an issue between the Court and the
petitioner, issuance of notice to the other side is unnecessary.
9. Considering the above, this Court is of the view that the
learned Judge is to be directed to take the petition on file, if it is otherwise
in order, conduct enquiry and pass orders in accordance with law and if
such a course is adopted, no prejudice will be caused to the parties to
the lis.
10. In the result, the Civil Revision revision Petition is
allowed and the learned Judge, Family Court, Dindigul is directed to take
the petition on file under Order 7 Rule 11 CPC, if it is otherwise in order,
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C.M.A(MD).No.1040 of 2021
and then to conduct enquiry and pass orders on merits and in accordance
with law. No costs. Consequently, the connected Miscellaneous Petition is
closed.
11. Registry is directed to return the original petition filed along
with this revision to the learned counsel for the revision petitioner,
enabling them to represent the same before the concerned Court, after
taking copies of the same.
30.07.2021
Index : Yes : No
Internet : Yes : No
TRP
https://www.mhc.tn.gov.in/judis/
C.M.A(MD).No.1040 of 2021
To
The Family Court, Dindigul
https://www.mhc.tn.gov.in/judis/
C.M.A(MD).No.1040 of 2021
K.MURALI SHANKAR,J.
TRP
CRP(MD).No.1040 of 2021 and
CMP(MD).No.6061 of 2021
30.07.2021
https://www.mhc.tn.gov.in/judis/
