Madras High Court
K.Duraisamy vs K.Kumarasamy on 14 June, 2021
C.R.P.(PD)No.4006 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD)No.4006 of 2018
and C.M.P.No.22191 of 2018
K.Duraisamy ... Petitioner
Vs.
1. K.Kumarasamy
2. K.Muthusamy ... Respondents
Prayer :- Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the order and decreetal order dated
27.08.2018 in I.A.No.1023 of 2014 in O.S.No.263 of 2014 on the file of the
learned District Munsif, Dharapuram.
For Petitioner : Mr.K.Sudhakar
For Respondents : Mr.S.Ramesh
ORDER
The Civil Revision Petition is directed as against the fair and
decreetal order dated 27.08.2018 passed by the learned District Munsif,
Dharapuram, in I.A.No.1023 of 2014 in O.S.No.263 of 2014, thereby
dismissing the petition for rejection of plaint.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
2. The petitioner is the first defendant and the respondents are the
plaintiffs. The respondents filed suit in O.S.No.263 of 2014, for bare
injunction in respect of the suit property. The cause of action for filing the
suit is that the petitioner's father entered in to a agreement for sale with the
second defendant and the respondents herein on 01.12.1993 in respect of
the suit property for the total sale consideration of Rs.45,000/-, in which a
sum of Rs.30,000/- paid as advance on the date of agreement. The time for
execution of sale deed was fixed as eleven months. Accordingly, the
defendants ought to have been executed the sale deed on or before
31.10.1994.
3. While it being so, on 10.04.1994, the balance sale
consideration was also received by the petitioner's father. Thereafter the
entire possession of the suit property handed over to the respondents and
they are in possession and enjoyment of the suit property. They also paid
the revenue dues to the revenue authorities. When it being so, on
17.11.2010, the petitioner's father died. Utilizing the said circumstances, the
petitioner and the second defendant attempted to sell the property to the
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
third parties. Therefore, the respondents filed the present suit for bare
injunction and also claimed right over the suit property under Section 53 of
the Transfer of Property Act. In the said suit, the petitioner filed petition in
I.A.No.1023 of 2014 to reject the suit. Since the same was dismissed by the
Court below, the present Civil Revision Petition.
4. The learned counsel appearing for the petitioner would submit
that even according to the respondents they entered into agreement for sale
on 01.12.1993 with the petitioner's father and the second defendant. After
the period of 21 years, the respondents filed this present suit that too
claiming right under Section 53(A) of the Transfer of Property Act. The suit
is clearly barred by limitation, since in the agreement for sale, the time for
exeuction of sale deed was fixed only eleven months and they ought to have
been filed the suit within the time from the date of expiry of the agreement
viz., 31.10.1994. After the agreement for sale, the agreement holder viz., the
respondents have not done any Act in furtherance to the contract as such
they cannot claim any benefit under Section 53-A of the Transfer of
Property Act. Admittedly, the petitioner and the respondents are brother and
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
sister and the respondents put their prayer in illusory manner and filed suit
as against the co-owner of the property. Therefore, the plaint itself liable to
be struck off. In support of his contention, he relied upon the following
judgments:-
i) CDJ 2016 MHC 6064 – Parimalam & ors Vs.
P.Mohanraj & anr.
ii) CDJ 2016 MHC 6400 – Sudanthiradevi & ors Vs. Jahir
Hussain & anr
iii) 2020 (4) CTC 471 – Dahiben Vs. Arvindbhai
Kalyanji Bhanusali & ors
5. Per contra, the learned counsel appearing for the respondents
would submit that the respondents filed suit for bare injunction. They
entered into the agreement for sale on 01.12.1993 with the petitioner's
father viz., Kaliappa Gounder. After receipt of the sale consideration, the
said Kaliappa Gounder died without executing any registered sale deed.
From the date of agreement itself, the respondents are in possession and
enjoyment of the suit property. The entire revenue records were mutated in
their name and they are paying Kist to the revenue authorities. While being
so, the petitioner and the second defendant were trying to execute the sale
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
deed in favour of the third party. Therefore, the respondents caused legal
notice on 12.06.2014 and filed the present suit for bare injunction.
Therefore, the entire plain is bundle of facts and it cannot be rejected on its
nib and prayed for dismissal of the petition.
6. Heard Mr.K.Sudhakar, learned counsel appearing for the
petitioner and Mr.S.Ramesh, learned counsel appearing for the respondents.
7. The petitioner is the first defendant and the respondents are the
plaintiffs. The respondents filed suit for bare injunction on the strength of
agreement for sale on 01.12.1993. The respondents and the petitioner are
brothers and sister. According to the respondents, they entered into the
agreement for sale on 01.12.1993 in respect of the suit property with the
petitioner's father and his sister viz., the second defendant. After the
payment of entire sale consideration, the petitioner's father and his sister
failed to execute the sale deed in their favour. While being so, on
17.11.2010, the petitioner's father died without executing any sale deed.
Therefore, the petitioner and the second respondent were attempted to
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
alienate the suit in favour of the third party. After causing legal notice, they
respondents filed t he suit for bare injunction in respect of the suit property
and also claimed right under Section 53A of the Transfer of Property Act.
8. In this regard, it is relevant to rely upon the judgment reported
in 2020 (4) CTC 471 in the case of Dahiben Vs. Arvindbhai Kalyanji
Bhanusali & ors., which reads as follows :-
“15.4.............. The plea taken in the plaint
that they learnt of the alleged fraud in 2014, on
receipt of the index of the Sale Deed, is wholly
misconceived, since the receipt of the index would
not constitute the cause of action for filing the
suit. On a reading of the plaint, it is clear that the
cause of action arose on the non-payment of the
bulk of the sale consideration, which event
occurred in the year 2009. The plea taken by the
Plaintiffs is to create an illusory cause of action,
so as to overcome the period of limitation. The
plea raised is rejected as being meritless and
devoid of any truth.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
15.5 The conduct of the Plaintiffs in not
taking recourse to legal action for over a period
of 5 and ½ years from the execution of the Sale
Deed in 2009, for payment of the balance sale
consideration, also reflects that the institution of
the present suit is an after-thought. The Plaintiffs
apparently filed the suit after the property was
further sold by Respondent No.1 to Respondent
Nos. 2 and 3, to cast a doubt on the title of
Respondent No.1 to the suit property.
15.6 The Plaintiffs have placed reliance on
the Order of the Collector dated 19.06.2009 with
the plaint. The Order reveals that the permission
was granted subject to the fulfilment of certain
conditions. Clause 4 of the permission states that :
“(4) The purchaser of the land/property, shall
have to make the payment of the price of the land
by cheque and its reference shall require to be
made in the Sale Deed.” If the Plaintiffs had a
genuine grievance of non- payment of the balance
sale consideration, the Plaintiffs could have
moved for revocation of the permission granted by
the Collector on 19.06.2009. Clause 6 of the
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
Order provided that : “(6) On making violation of
any of the aforesaid terms, the permission shall
automatically be treated as cancelled and,
separate proceeding shall be taken up for the
violation of the terms and conditions.” The
Plaintiffs did not make any complaint whatsoever
to the Collector at any point of time. The conduct
of the Plaintiffs is reflective of lack of bona fide.
15.7 The present case is a classic case,
where the plaintiffs by clever drafting of the
plaint, attempted to make out an illusory cause of
action, and bring the suit within the period of
limitation. .................
The Plaintiffs deliberately did not mention the
date of the registered Sale Deed dated 02.07.2009
executed by them in favour of Respondent No.1,
since it would be evident that the suit was barred
by limitation. The prayer however mentions the
date of the subsequent Sale Deed i.e. 01.04.2013
when the suit property was further sold by
Respondent No.1 to Respondent Nos. 2 & 3. The
omission of the date of execution of the Sale Deed
on 02.07.2009 in the prayer clause, was done
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
deliberately and knowingly, so as to mislead the
Court on the issue of limitation.
15.8. The delay of over 5 and ½ years
after the alleged cause of action arose in 2009,
shows that the suit was clearly barred by
limitation as per Article 59 of the Limitation Act,
1963. The suit was instituted on 15.12.2014, even
though the alleged cause of action arose in 2009,
when the last cheque was delivered to the
Plaintiffs. The Plaintiffs have failed to discharge
the onus of proof that the suit was filed within the
period of limitation. The plaint is therefore, liable
to be rejected under Order VII Rule 11 (d) of
CPC. Reliance is placed on the recent judgment of
this Court rendered in Raghwendra Sharan Singh
v. Ram Prasanna Singh (Dead) by LRs.15 wherein
this Court held the suit would be barred by
limitation under Article 59 of the Limitation Act, if
it was filed beyond three years of the execution of
the registered deed.
15.9 The Plaintiffs have also prayed for
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
cancellation of the subsequent Sale Deed dated
01.04.2013 executed by Respondent No.1 in
favour of Respondent Nos. 2 and 3; since the suit
in respect of the 1st Sale Deed dated 02.07.2009 is
rejected both under clauses (a) and (d) of Order
VII Rule 11, the prayer with respect to the 2nd
Sale Deed dated 01.04.2003 cannot be
entertained.”
9. As rightly pointed out by the learned counsel appearing for the
petitioner, the respondents filed the suit for bare injunction with illusions of
a cause of action. If the plaint created the illusion of a cause of action, it
should be nipped in the bud, so that bogus litigation will end at the earliest
state. The Court must be vigilant against any camouflage or suppression and
determine whether the litigation is utterly vexatious and an abuse of process
of the Court.
10. That apart, Section 53-A of the Transfer of Property Act gives
protection to the agreement holder, who was in possession pursuant to the
sale agreement. Only a person who had done some act in furtherance of the
contract can claim the benefit of Section 53-A of the Transfer of Property
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
Act. The person in possession must be a person who has performed or
willing to perform his part of contract. Having regard to the admitted facts
that the respondents are not ready and willing to perform their part of
contract within the reasonable time and that the respondents have not filed a
suit for specific performance, the suit for bare injunction is not
maintainable. The conduct of the respondents would clearly disclose that
they are not willing to perform their part of contract.
11. Further, they also failed to comply the other conditions for
invoking Section 53-A of the Transfer of Property Act. Therefore, the
agreement holders are not entitled to any protection by filing the suit for
injunction restraining the lawful owner from interfering with his peaceful
possession and enjoyment. That apart, the plaintiffs and the defendants are
brothers and sister. Therefore, they cannot sought for injunction as against
the co-owner, since the petitioner's father died on 17.11.2010 itself.
Therefore, the present suit is nothing but abuse of process of law and it is
liable to be rejected.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
12. Accordingly, the Civil Revision Petition stands allowed and
the order dated 27.08.2018 passed by the learned District Munsif,
Dharapuram, in I.A.No.1023 of 2014 in O.S.No.263 of 2014 is set aside and
the plaint in O.S.No.263 of 2014 is hereby rejected. There shall be no order
as to costs. Consequently connected miscellaneous petition is closed.
14.06.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
To
1. The District Munsif,
Dharapuram.
2. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.4006 of 2018
G.K.ILANTHIRAIYAN, J.
rts
C.R.P.(PD)No.4006 of 2018
and C.M.P.No.22191 of 2018
14.06.2021
https://www.mhc.tn.gov.in/judis/
