Madras High Court
G.Ramesh vs M.S.Karnan on 15 June, 2021
CRP.PD.No.667 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.667 of 2018
and
CMP.Nos.3440 & 3449 of 2018
1.G.Ramesh
2.Anand
3.Babu
4.Devaraj @ Thiyagarajan
5.Vasanth ..Petitioners
Vs.
M.S.Karnan ..Respondent
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India praying to strike off the plaint in OS.No.45 of
2018 on the file of the Principal District Munsif, Tindivanam and
thereby allow the revision.
For Petitioners : Mr.N.Suresh
For Respondent : Mr.R.Agilesh
ORDER
This Civil Revision Petition is filed to strike off the plaint in
OS.No.45 of 2018 on the file of the Principal District Munsif, Tindivanam
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CRP.PD.No.667 of 2018
2. The learned counsel for the petitioners submitted that the
petitioners filed suit for declaration declaring that the sale deed executed in
favour of the respondent is null and void and also for declaration declaring
that the power of attorney executed by the respondent in favour of one,
M.S.Babu as null and void. The petitioners also prayed for declaration
declaring that the sale deed executed by the second defendant M.S.Babu in
favour of the respondent herein as null and void with permanent injunction
in respect of the suit properties in OS.No.13 of 2016. In fact, the court
below ordered status quo to be maintained in respect of the suit property by
fair and decretal order dated 17.06.2016 in IA.No.77 of 2016 and granted
interim injunction as against the respondent herein. According to the
petitioners, they purchased the suit property by the registered sale deed
dated 12.12.2013 vide document No.3920 of 2013 to an extent of 7.61 cents
comprised in new survey No.401/3 (old survey No.623/2) situated at
Nadukuppam (East) Village, Tindivanam Taluk, Villupuram District. The
respondent appeared through his counsel and duly contested the suit as well
as the injunction petition. As against the order of injunction dated
17.06.2016, the respondent did not prefer any appeal before the appellate
court. In fact, after granting interim injunction, the respondent attempted to
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CRP.PD.No.667 of 2018
trespass into the suit property and as such the petitioners lodged complaint
and the same was registered in Cr.No.7 of 2018 on the file of the Inspector
of Police, District Crime Branch Police Station, Villupuram for the offences
under Sections 423, 465 and 471 of IPC. While being so, after transferring
the Presiding Officer before the trial court, the respondent suppressed the
entire above materials and facts and simply filed suit for bare injunction in
respect of the very same property and also obtained interim injunction in
IA.No.167 of 2018 in OS.No.45 of 2018.
2.1 He further submitted that it is nothing but clear abuse of
process of court, when the petitioners filed suit for declaration and
injunction for the very same property, in which the respondent appeared
through same counsel who filed present suit and suppressed the earlier suit
filed by the petitioners and also interim order was granted in favour of the
petitioners, the respondent filed present suit and obtained interim
injunction. It is nothing but forum shopping and clear abuse of process of
court. Therefore, he sought for strike off the plaint in OS.No.45 of 2018. In
support of his contention, he relied upon the following judgments:
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CRP.PD.No.667 of 2018
(i) S.P.Chengalvaraya Naidu(dead) by LR's Vs. Jagannath
(dead) by LR's and others reported in AIR 1994 SC 853
(ii) K.K.Modi Vs. K.N.Modi and others reported in
(1998) 3 SCC 573
(iii) Dalip Singh Vs. State of Uttar Pradesh and others
reported in (2010) 2 SCC 114
(iv) Oswal Fats and Oils Limited Vs. Additional Commissioner,
Bareilly and others reported in (2010) 4 SCC 728
(v) N.Babu Vs. S.Shanmugam reported in 2013 (1) CTC 180
3. Per contra, the learned counsel for the respondent submitted
that the suit filed by the petitioners in respect of the property admeasuring
7.61 cents comprised in survey No.401/3 whereas the respondent filed suit
for the property admeasuring 1.94 cents comprised in survey No.401/3 (old
survey No.623/2,4). He further submitted that the petitioners filed suit in
OS.No.13 of 2016 not only as against the respondent and also against the
other parties. The present suit has been filed with different cause of action
and it contains bundle of facts. Therefore, it cannot be struck off on its
limine. However, it is open to the petitioners to approach the trial court
under Order 7 Rule 11 of CPC in the manner known to law. Therefore, it
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CRP.PD.No.667 of 2018
cannot be struck off by way of Article 227 of the Constitution of India.
When there is specific provision under Order 7 Rule 11 of CPC, the
petitioners cannot invoke Article 227 of the Constitution of India and
prayed for dismissal of the civil revision petition.
4. Heard, Mr.N.Suresh, the learned counsel for the petitioners and
Mr.R.Agilesh, the learned counsel for the respondent.
5. The point for consideration is that whether the plaint in
OS.No.45 of 2018 can be struck off?
6. The petitioners are the plaintiffs in OS.No.13 of 2016 filed as
against the respondent on the file of the Principal District Munsif,
Tindivanam. The petitioners prayed for the following reliefs:
(a) For a declaration that the sale deed executed by
Pandurangan Gramany and his sons in favour of 1st defendant
on 05.02.2004, registered as Marakanam Sub Registrar Office
as Document No.129/2004 in respect of the suit property is
improper without any right or title vitiated in law null and
void abinitio and unlawful and not at all binding on the
plaintiff or the suit property.
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CRP.PD.No.667 of 2018
(b) For a declaration that the power of attorney deed
executed by the first defendant to the 2nd defendant on
19.01.2015, registered at Marakanam Sub Registrar office as
document No.89/2015 in respect of the suit property is
improper without any right or title vitiated in law null and
void abinitio and unlawful and not at all binding on the
plaintiff or the suit property.
(c ) For a declaration that the sale deed executed by the
2nd defendant on 02.03.2015, registered at Marakanam Sub
Registrar office as Document No.942/2015 in respect of the
suit property is improper without any right or title vitiated in
law null and void abinitio and unlawful and not at all binding
on the plaintiff or the suit property
(d) For a permanent injunction restraining the
defendants, their men and agents, relatives, contractors, and
any persons claiming or acting under them from any manner
entering into plaintiff's peaceful possession and enjoyment of
suit property and not to alienate the same.
7. They also filed petition for interim injunction in IA.No.77 of
2016 and the same was allowed and ordered the parties to maintain status
quo till the disposal of the main suit in respect of the suit properties and the
respondent did not prefer any appeal as against the order passed by the trial
court. Thereafter, the respondent attempted to mutate the revenue records
and as such the petitioners were constrained to lodge complaint and the
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CRP.PD.No.667 of 2018
same was registered in Cr.No.7 of 2018 for the offenes under Section 423,
465, 471 of IPC on the file of the Inspector of Police, DCB Police Station,
Villupuram. While pending investigation, the respondent filed the present
impugned suit in OS.No.45 of 2018 for the following reliefs in respect of
the property comprised in new survey No.401/3, old survey No.623/2,4
admeasuring 1.94 cents.
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8. In both the suits, the suit property is one and the same.
Originally the suit property by way of partition deed registered vide
document No.2032 of 1978 one, Kothandaraman Gramani derived title over
the suit property. It was in possession and enjoyment of the said
Kothandaraman Gramani and along with two sons, i.e. Karunamurthy and
Krishnamurthy. They sold out the property jointly to Muthunarayanan,
Kamalakannan and Narayanasamy. They jointly purchased the suit property
and registered vide document No.903 of 2004. Thereafter, the said
Narayanasamy sold his 1/3 of his share in the suit property to his co-sharers
by the registered sale deed dated 21.03.2005 vide document No.477 of
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CRP.PD.No.667 of 2018
2005. Thereafter, the other two persons i.e. Muthunarayanan and
Kamalakannan have sold the suit property to one, Gopalan by the registered
sale deed vide document No.2026 of 2005. In fact he was also issued patta
in patta No.1391. On 12.12.2013, the plaintiff and one, Anand have jointly
purchased the suit property along with other properties from the said
Gopalan by the registered sale deed vide document No.3920/13. Whereas
the respondent filed the present suit and averred that the suit property
owned by one, Sekar S/o Pavadai Gounder. The said Sekar executed power
of attorney in favour of one, Babu. In turn, on the strength of the power of
attorney the said Babu executed sale deed in favour of the respondent by the
registered sale deed dated 02.03.2015.
9. The petitioners already filed suit as against the said Sekar and
power of attorney Mr.Babu along with the respondent herein. They mainly
challenged the sale deed dated 05.02.2004 registered vide document No.129
of 2004 in respect of the suit property in favour of the said Sekar. They also
challenged the power of attorney executed by the said Sekar in favour of
M.S.Babu i.e. the second defendant in the suit registered vide document
No.89 of 2015. Finally, they also challenged the sale deed dated 02.03.2015
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CRP.PD.No.667 of 2018
executed by M.S.Babu i.e. second defendant in their suit in favour of the
respondent herein vide document No.942 of 2015. Therefore, the sale deed
registered in favour the vendor of the respondent and the power of attorney
of his vendor along with the sale deed executed in favour of the respondent
were challenged in the earlier suit. The suit was duly contested through their
counsel one, Mr.A.Senthamarai Kannan. The present impugned suit was
filed by the respondent through the same counsel Mr.A.Senthamarai
Kannan suppressing all the facts and materials. It is pending before the
same court and obtained interim injunction in IA.No.167 of 2018. It is
nothing but clear abuse of process of court.
10. It is settled law that a person who approaches the court for
grant of relief, equitable or otherwise, is under a solemn obligation to
candidly disclose all the material/important facts which have bearing on the
adjudication of the issues raised in the case. If he is found guilty of
concealment of material facts or making an attempt to pollute the pure
stream of justice, the court not only has the right but a duty to deny relief to
such person. That apart, the respondent played fraud on the court and filed
fresh suit after transferring the earlier Presiding Officer. Therefore, this
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CRP.PD.No.667 of 2018
Court can exercise powers under Article 227 of the Constitution of India to
strike off the plaint. In this regard, it is relevant to extract the judgment of
this Court in CRP.PD.No2802 of 2016 dated 11.02.2021, as follows:
12.The learned Senior Counsel relied upon the Judgment
reported in 2020 SCC Online Madras 6229, in which this Court
has held in the similar circumstance, which reads as follows:
?12. The Hon-ble Apex Court in 2020 (16)
SCC 601 [Raghwendra Sharan Singh Vs.Ram
Prasanna Singh (Dead) by LRs wherein it is held
that:~
6.6 In the case of Sopan Sukhdeo Sable
(supra) in Paras 11 and 12, the Apex Court has
observed as under:
“11. In I.T.C Ltd. v.Debts Recovery
Appellate Tribunal [(1998) 2 SCC 70] it was held
that the basic question to be decided while dealing
with an application filed under Order 7 Rule 11 of
the Code is whether a real cause of action has
been set out in the plaint or something purely
illusory has been stated with a view to get of
Order 7 Rule 11 of the Code.
12. The trial Court must remember that if on
a meaningful and not formal reading of the plaint
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CRP.PD.No.667 of 2018
it is manifestly vexatious and meritless in the sense
of not disclosing a clear right to sue, it should
exercise the power under Order 7 Rule 11 of the
Code taking care to see that the ground mentioned
therein is fulfilled. If clever drafting has created
the illusion of a cause of action, it has to be nipped
in the bud at the first hearing by examining the
party searchingly under Order 10 of the Code.
[see T.Arivandanadam v. T.V.Satyapal (supra)]
6.8. In the case of Ram Singh (supra), this
Court has observed and held that when the suit is
barred by any law, the plaintiff cannot be allowed
to circumvent that provision by means of clever
drafting so as to avoid mention of those
circumstances, by which the suit is barred by law
of limitation.
....As observed and held by Apex Court in
the cases of Sham Lal alias Kuldip (supra);
N.V.Srinivas Murthy (supra) as well as in the case
of Ram Prakash Gupta (supra), considering the
averments in the plaint if it is found that the suit is
clearly barred by law of limitation, the same can
be rejected in exercise of powers under Order 7
Rule 11(d) of the C.P.C.
In, (2020) 7 Supreme Court Cases 366
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CRP.PD.No.667 of 2018
[Dahiben Vs.Arvindbhai Kalyanji Bhanusali
(Gajra) Dead through Legal Representatives and
others], wherein it is held that:~
(i) The remedy under Order 7 Rule 11 C.P.C
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 evidence adduced, if it is satisfied that the
action should be terminated on any of the grounds
contained in this provision. The underlying object
of Order 7 Rule 11(a0 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.
(ii) 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. 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,
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CRP.PD.No.667 of 2018
read in conjunction with the documents relied
upon, or whether the suit is barred by any law.
(iii) Having regard to Order 7 rule 14
C.P.C, the documents filed along with the plaint,
are required to be taken into consideration for
deciding 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. In exercise of power under
this provision, it should be treated as a part of the
plaint. 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.
(iv) ....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. It is not
permissible to cull out a sentence of a passage,
and to read it in isolation. It is the substance, and
not merely the form, which has to be looked into.
(v) .....If, however, on a meaningful reading
of the plaint, it is found that the suit does not
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CRP.PD.No.667 of 2018
disclose right to sue, cause of action or suit is
barred by any law and the Court has no option but
to reject the plaint and without any merit, Order 7
Rule 11 C.P.C.
(vi) 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 not option, but to reject the plaint.
(vii) ...“Cause of action“ means every fact
which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to
judgment. It consists of a bundle of material facts,
which are necessary for the plaintiff to prove in
order to entitle him to the reliefs claimed in the
suit. While considering an application under
Order 7 Rule 11 C.P.C what is required to be
decided is whether the plaint discloses a real
cause of action, or something purely illusory.
What is required is that a clear right must be made
out in the plaint. If, however, by clever drafting of
the plaint, it has created the illusion of a cause of
action, it should be nipped in the bud, so that
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CRP.PD.No.667 of 2018
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.
(viii) The period of limitation prescribed
under Articles 58 and 59 of the 1963 Act is three
years, which commences from the date when the
right to sue first accrues. The use of the word
“first“ between the words “sue“ and “accrued“,
requires the Court to examine the plaint and
determine when the right to sue first accrued to the
plaintiff, and whether on the assumed facts, the
plaint is within time. The words “right to sue“
mean the right to seek relief by means of legal
proceedings. The right to sue accrues only when
the cause of action arises. The suit must be
instituted when the right asserted in the suit is
infringed, or when there is a clear and
unequivocal threat to infringe such right by the
defendant against whom the suit is instituted.
Order 7 Rule 11(d) provides that where a suit
appears from the averments in the plaint to be
barred by any law, the plaint shall be rejected.
(ix) On a reading of the plaint, it is clear
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CRP.PD.No.667 of 2018
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.
(x)...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.
(xi) In Raghwendra Sharan Singh, (2020)
(6) SCC 601, the Supreme Court held that 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.
..........................
29. In fine,
[1] The suit plaint in O.S.No.110 of 2020 is
nothing but an outcome of clever drafting by a
man of legal knowledge in manufacturing suit on
time barred dead wood rights and mere astuteness
in drafting the plaint will not be allowed to stand
in the way of the court looking at the substance of
the relief asked for.
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[2] The plaint prayer are reproduced, as it
is, for proper appreciation of clever camouflaging
as to how prayers are cleverly drafted to over
come partition suit for specific performance and to
claim time barred claims and to create illusory
cause of action by imagining words of pleadings.
[3] In essence, the respondent/plaintiff
seeking to declare his entitlement to title to the suit
to an oral agreement for oral partition after four
years registered partition, on the basis of an
unfilled and undisclosed agreement. In law, an
agreement will not confer or create title over the
property as per Section 54 of Transfer of Property
Act. By device of clever drafting of the plaint, the
respondent/plaintiff is attempting to file a fictitious
suit on the basis of an illusory cause of action and
suit of the present nature is nothing but
camouflage to get over the bar of limitation and
the present suit for re~opening the partition after
final partition viz., time barred relief, as per
Limitation Act.
[4] The suit, as such framed and filed ought
not to have taken on file and number it as the same
is nothing but -pure- abuse of process of Court (as
held in Dahiben case reported in 2020 (7) SCC
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CRP.PD.No.667 of 2018
366 and Raghwendra Sharan Singh case reported
in 2020 (6) SCC 601.
[5] Normally, this Court will exercise
“Judicial restrain“ to exercise the powers
conferred under Article 227 of the Constitution of
India, to reject the plaint pending before the lower
Courts. However, on facts and circumstances of
the case, continuation of trial of suit shocks the
-Judicial Consciences- of this Court, as in the
present one, I am of the view that, it amounts to --
abuse of process of Court“ and the same is to be
“nipped in the bud, as held by the Hon-ble
Supreme Court, 2017 (13) SCC 174 [Madanuri Sri
Ramachandra Murthy V.Syed Jalal]“
13.The above Judgment is squarely applicable to the case
on hand. The contention of the present suit is sheer abuse of
process of Court and it has to be struck off. Though there is
alternative remedy under Order 7 Rule 11 CPC, it is an
independent and special remedy, whereas the Court is erred to
summarily dismissing the suit at the threshold without
proceeding to record evidence and taking a trial on the basis of
the evidence adduced. If it is satisfied then the action should be
terminated on any of the ground contained in this provision. As
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held by the Hon?ble Supreme Court of India, in the case of
Madanuri Sri. Ramachandra Murthy Vs. Syed Jalal reported in
[2017 13 SCC 174], which is relied upon by this Court in the
above Judgment had held that on facts and the circumstances of
the case, continuation of trial of suit shocks the -Judicial
Consciences- of this Court, as in the present one, and the Court
is of the view that, it amounts to “abuse of process of Court“
and the same is liable to be “nipped in the bud“.
11. Accordingly, this civil revision petition is allowed and the
plaint in OS.No.45 of 2018 on the file of the Principal District Munsif,
Tindivanam is hereby struck off. Consequently, connected miscellaneous
petitions are closed. No order as to costs.
15.06.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
To
The Principal District Munsif,
Tindivanam
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CRP.PD.No.667 of 2018
G.K.ILANTHIRAIYAN,J.
lok
CRP.PD.No.667 of 2018
15.06.2021
https://www.mhc.tn.gov.in/judis/
