Madras High Court
V.Kumar vs R.Natarajan on 17 June, 2021
CRP (PD) No.1624 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P (PD) No.1624 of 2018
and
CMP.No.8791 of 2018
1. V.Kumar
2. V.Saraswathi ... Petitioners
Vs.
1. R.Natarajan
2. V.Balakrishnan
3. V.Raja
4. D.Kannan
5. Paramaguru
6. Deivanayagam
7. Maheswari
8. Usha ... Respondents
Prayer : Civil Revision Petition is filed under Section 115 of the Code of
Civil Procedure, to set aside the fair and decretal order dated 28.03.2018
made in I.A.No.712 of 2015 in O.S.No.88 of 2015 on the file of the
learned District Munsif, Thiruvarur by allowing this Civil Revision
Petition.
For Petitioners : Mr.N.Manokaran
For Respondents : Mr.S.Sounthar (for R-1)
: Not Ready in Notice
(No Appearance)
(for R-2 to R-5 and R-8)
: Notice Served (No Appearance)
(for R-6 & R-7)
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1/19
CRP (PD) No.1624 of 2018
ORDER
This Civil Revision Petition is directed against the fair and
decretal order passed in I.A.No.712 of 2015 in O.S.No.88 of 2015 dated
28.03.2018 on the file of the learned learned District Munsif, Thiruvarur,
thereby dismissing the petition filed for rejection of plaint.
2. The petitioners are the defendants 2 and 4 and the first
respondent is the plaintiff. The first respondent filed the suit for
declaration in respect of the suit schedule property and mandatory
injunction along with the recovery of possession in respect of the suit
schedule property. While pending the suit, the petitioners filed a petition
for rejection of plaint and the same was dismissed. Aggrieved by the
same, the present Civil Revision Petition is filed.
3. The learned counsel for the petitioners submitted that in respect
of very same reliefs, the first respondent already filed a suit in the year
1999 in O.S.No.135 of 1999 on the file of the learned District Munsif,
Thiruvarur in respect of part of the suit property. In respect of other part
of the suit schedule property for the very same prayer, he filed a suit in
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CRP (PD) No.1624 of 2018
O.S.No.136 of 1999 on the file of the learned District Munsif,
Thiruvarur. Both the suits were tried and dismissed together by the
judgment and decree dated 29.01.2015. Thereafter, the present impugned
suit has been laid by the first respondent on the very same cause of
action, which was arisen in the year 1994 for the very same relief in
respect of the very same property. Therefore, the suit itself is barred by
limitation. The suit is also hit by Order II Rule 2 of the Civil Procedure
Code. When the cause of action arose for filing of the earlier suits, the
present reliefs sought for in the present suit was very much available to
the first respondent at the time of earlier suits. Even then, without leave
of the Court as contemplated under Order II Rule 2 of the Civil
Procedure Code, the present impugned suit has been laid. The present
suit has been filed only after dismissal of the earlier suits, that too after
giving a finding on issue that the suits are not maintainable without a
prayer of the declaration. In the earlier suits, the petitioners categorically
denied the title of the first respondent over the suit property by way of
written statement, even then, the first respondent failed to amend the
prayer for a declaratory decree. Therefore, the trial Court ought to have
rejected the plaint on the ground that the suit itself barred by limitation
and the suit is hit by Order II Rule 2 of the Civil Procedure Code. In
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CRP (PD) No.1624 of 2018
support of his contentions, the learned counsel for the petitioners relied
upon the judgments of the Hon'ble Supreme Court of India reported in
2020 (45) CTC 471 (Dahiben -vs- Arvindbhai Kalyanji Bhanusali
(Gajra)(D) thr L.Rs.), 2020 (10) SCC 601 (Raghwendra Sharan Singh
-vs- Ram Prasanna Singh (Dead) and 2019 (4) CTC 610 (Pramod
Kumar -vs- Zalak Singh).
4. Per contra, the learned counsel for the first respondent submitted
that though the earlier suits filed by the first respondent were dismissed
by the Court below, the first respondent was given liberty to file a suit
for declaration, possession and injunction. In the said judgment, it is
observed that however, it is open to the plaintiff to file a fresh suit
against the defendants for declaration, possession and injunction.
Therefore, the suit is very much maintainable and does not hit by Order
II Rule 2 of the Civil Procedure Code. Insofar as the limitation is
concerned, Section 14 of the Limitation Act save the limitation to file the
present suit. Therefore, the suit is not barred by any law. Further, in the
suit there are so many issues involved and the entire plaint is coupled
with the bundle of facts and issues and as such, it cannot be rejected at its
limine and prayed for dismissal of this Civil Revision Petition.
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CRP (PD) No.1624 of 2018
5. Heard the learned counsel for the petitioners as well as the
learned counsel appearing for the first respondent.
6. The petitioners are the defendants 2 and 4 in the suit filed by the
first respondent herein for declaration, recovery of possession,
mandatory injunction and permanent injunction in respect of the suit
property. Admittedly, the first respondent filed suits in O.S.Nos.135 and
136 of 1999 on the file of the learned District Munsif, Thiruvarur in
respect of the very same suit property for mandatory injunction and
recovery of possession. Both the suits were duly contested by the
petitioners and both the suits were dismissed by the judgment and decree
dated 29.01.2015. While dismissing the suit, the trial Court observed that
the suits for bare injunction are legally not maintainable, without a suit
for declaration and injunction. There is a cloud over title of the suit
property and as such, both the suits were dismissed. Further, it is
observed that it is open to the plaintiff to file a fresh suit against the
defendants for declaration, possession and injunction. Though the trial
Court observed that the first respondent can very well file the suit for
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CRP (PD) No.1624 of 2018
declaration in respect of the suit property, it does not mean that the first
respondent was given liberty to file a fresh suit by saving the limitation.
Therefore, in the present Civil Revision Petition, the points for
consideration are that (i) whether the suit is barred by limitation (ii)
whether the suit is hit by Order II Rule 2 of the Civil Procedure Code.
7. The first respondent already filed suits in O.S.Nos. 135 and 136
of 1999 on the file of the learned District Munsif, Thiruvarur, on the
cause of action that when the ancestors of the first respondent purchased
the suit property in the year 1928 and they were possession and
enjoyment of the same and thereafter, when the first respondent was out
of station, the petitioners herein encroached part of the suit property and
put up a fence in the year 1994. In the year 1997, when the first
respondent was out of station, the petitioners again encroached further
portion of the property behind their house and put up compound wall.
Therefore, the first respondent filed suits for mandatory injunction to
remove the construction put up by the petitioners and recovery of
possession. The present impugned suit has been filed for the very same
cause of action, which reads as follows:-
“12/ ,t;tHf;fpw;fhd tHf;F K:yk; ,e;j ePjpkd;w
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CRP (PD) No.1624 of 2018
vy;iyf;Fl;gl;l jpUthU:u; o/K/ ,yhf;fh. jpUthU:u; jhYf;fh.
jpUthU:u; lt[dpy;. jhth gp gl;o brhj;jpid 1 Kjy; 4
vjpu;thjpfSk;. mtu;fsJ jfg;gdhuhd bt';fl;luhka;aUk;
Mf;fpukpg;g[ bra;j fhykhd 1997k; tUlj;jpYk;. jhth rp gl;o
brhj;jpy; 5k; vjpu;thjp Rkhu; 80 mo Mf;fpukpg;g[ bra;j fhykhd
1994k; tUlj;jpYk;. mjd; gpd;du; mjd; fPH;g[uk; Rkhu; 120 mof;F
½ mo mfyj;jpw;F br';fy; itj;J rpbkz;l; fl;il 2 mo
cauj;jpw;F vGg;gpa[s;s fhykhd 1998k; tUlj;jpYk;. MJ
bjhlu;ghf thjp vjpu;thjpfs; ngupy; Kiwna X/v!;/be/135-99 &
136-99 tHf;Ffs; bjhlu;eJ
; fhyk; KjYk;. nkw;go tHf;Ffspy;
jPug; g; f[ s; gfug;gl;l fhykhd 29/01/2015k; njjp KjYk; cw;gj;jp/”
8. Therefore, in respect of the cause of action arose in the year
1994 & 1997, the first respondent filed suits in the year 1999 with
regards to the entire suit properties. The present suit has been filed on
04.06.2015, after a period of 17 years from the date of cause of action.
The limitation for filing the suit for declaration is three years as
contemplated under Article 58 of the Limitation Act. Therefore, the
present suit is clearly barred by limitation.
9. Insofar as the leave is concerned as contemplated under Order II
Rule 2 of the Civil Procedure Code, when the relief of declaration was
very much available for the first respondent, even in the year 1999, while
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CRP (PD) No.1624 of 2018
filing the earlier suits, he failed to pray for any declaration in respect of
the suit properties. Only after dismissal of the earlier suits, that too on the
ground that the suit was not filed for declaration and without the prayer
for declaration, recovery of possession cannot be granted, the present suit
has been filed. That apart, the first respondent did not get any leave from
the Court below to file the present impugned suit. Therefore, the present
suit is directly hit by Order II Rule 2 of the Civil Procedure Code.
10. In this regard, the learned counsel for the petitioners relied
upon the judgment of the Hon'ble Supreme Court of India reported in
2020 (45) CTC 471 (Dahiben -vs- Arvindbhai Kalyanji Bhanusali
(Gajra)(D) thr L.Rs.), it is held as follows:-
"12.10. 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.
....
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CRP (PD) No.1624 of 2018
14. The Limitation Act, 1963 prescribes a time-limit
for the institution of all suits, appeals, and applications.
Section 2(j) defines the expression “period of limitation”
to mean the period of limitation prescribed in the Schedule
for suits, appeals or applications. Section 3 lays down that
every suit instituted after the prescribed period, shall be
dismissed even though limitation may not have been set up
as a defence. If a suit is not covered by any specific article,
then it would fall within the residuary article.
Articles 58 and 59 of the Schedule to the 1963 Act,
prescribe the period of limitation for filing a suit where a
declaration is sought, or cancellation of an instrument, or
rescission of a contract, which reads as under:
Description of suit Period of Time from which
limitatio period begins to run
n
58. To obtain any Three When the right to sue
other declaration. years first accrues.
59. To cancel to set Three When the facts entitling
aside an instrument years the Plaintiff to have the
or decree or for the instrument or decree
rescission of a cancelled or set aside
Contract. or the Contract
rescinded first become
known to him.
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CRP (PD) No.1624 of 2018
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.
In Khatri Hotels (P) Ltd. v. Union of India [Khatri
Hotels (P) Ltd. v. Union of India, (2011) 9 SCC 126 :
(2011) 4 SCC (Civ) 484] this Court held that the use of
the word “first” between the words “sue” and
“accrued”, would mean that if a suit is based on multiple
causes of action, the period of limitation will begin to
run from the date when the right to sue first accrues.
That is, if there are successive violations of the right, it
would not give rise to a fresh cause of action, and the
suit will be liable to be dismissed, if it is beyond the
period of limitation counted from the date when the right
to sue first accrued.
A three-Judge Bench of this Court in State of
Punjab v. Gurdev Singh [State of Punjab v. Gurdev
Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082] held that
the Court must examine the plaint and determine when
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CRP (PD) No.1624 of 2018
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.
....
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
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CRP (PD) No.1624 of 2018
proof that the suit was filed within the period of
limitation. The plaint is therefore, liable to be rejected
under Order 7 Rule 11(d) CPC."
11. The learned counsel for the petitioners further relied upon the
upon the judgment of the Hon'ble Supreme Court of India reported in
2020 (10) SCC 601 (Raghwendra Sharan Singh -vs- Ram Prasanna
Singh (Dead), it is held as follows:-
6.4. In T. Arivandandam [T. Arivandandam v. T.V.
Satyapal, (1977) 4 SCC 467] , while considering the very
same provision i.e. Order 7 Rule 11 CPC and the decree
of the trial court in considering such application, this
Court in para 5 has observed and held as under: (SCC p.
470)
“5. We have not the slightest hesitation in
condemning the petitioner for the gross abuse of
the process of the court repeatedly and
unrepentantly resorted to. From the statement of
the facts found in the judgment of the High Court,
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it is perfectly plain that the suit now pending before
the First Munsif's Court, Bangalore, is a flagrant
misuse of the mercies of the law in receiving
plaints. 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 by examining the party
searchingly under Order 10 CPC. An activist
Judge is the answer to irresponsible law suits.”
....
7. Applying the law laid down by this Court in the
aforesaid decisions on exercise of powers under Order 7
Rule 11 CPC to the facts of the case in hand and the
averments in the plaint, we are of the opinion that both the
courts below have materially erred in not rejecting the
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CRP (PD) No.1624 of 2018
plaint in exercise of powers under Order 7 Rule 11 CPC. It
is required to be noted that it is not in dispute that the gift
deed was executed by the original plaintiff himself along
with his brother. The deed of gift was a registered gift deed.
The execution of the gift deed is not disputed by the plaintiff.
It is the case of the plaintiff that the gift deed was a showy
deed of gift and therefore the same is not binding on him.
However, it is required to be noted that for approximately
22 years, neither the plaintiff nor his brother (who died on
15-12-2002) claimed at any point of time that the gift deed
was showy deed of gift. One of the executants of the gift
deed, brother of the plaintiff during his lifetime never
claimed that the gift deed was a showy deed of gift. It was
the appellant herein-original defendant who filed the suit in
the year 2001 for partition and the said suit was filed
against his brothers to which the plaintiff was joined as
Defendant 10. It appears that the summon of the suit filed by
the defendant being TS (Partition) Suit No. 203 of 2001 was
served upon Defendant 10-plaintiff herein in the year 2001
itself. Despite the same, he instituted the present suit in the
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year 2003. Even from the averments in the plaint, it appears
that during these 22 years i.e. the period from 1981 till
2001/2003, the suit property was mortgaged by the
appellant herein-original defendant and the mortgage deed
was executed by the defendant. Therefore, considering the
averments in the plaint and the bundle of facts stated in the
plaint, we are of the opinion that by clever drafting the
plaintiff has tried to bring the suit within the period of
limitation which, otherwise, is barred by law of limitation.
Therefore, considering the decisions of this Court in T.
Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4
SCC 467] and others, as stated above, and as the suit is
clearly barred by law of limitation, the plaint is required to
be rejected in exercise of powers under Order 7 Rule 11
CPC."
12. The Hon'ble Supreme Court of India held that 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.
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CRP (PD) No.1624 of 2018
13. Under Order II Rule 2 of the Civil Procedure Code, when the
suit was filed on the basis of the certain cause of action, the plaint shall
include the whole of the claim, which the plaintiff is entitled to make, in
respect of the said cause of action and all reliefs arising out of the same
cause of action, shall be set out in one and the same suit.
14. Admittedly, the first respondent filed the earlier suits for the
very same cause of action arose in the year 1994 & 1997 and both the
suits were duly contested and dismissed on merits. The present impugned
suit has been filed for the very same cause of action for the very same
property. The cardinal requirement for application of the provisions
contained in Order II Rule 2(2) & (3) of the Civil Procedure Code,
therefore, is that the cause of action in the later suit must be the same as
in the first suit. Therefore, the leave of the Court is contemplated under
Order II Rule 2(3) of the Civil Procedure Code in the situation where a
person being entitled to more than one relief on a particular cause of
action omits to sue, for all such reliefs.
15. Under these circumstances, the first respondent precluded from
bringing a subsequent suit to claim relief earlier omitted except in
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CRP (PD) No.1624 of 2018
situation were leave of the Court had been obtained. Therefore, the above
judgments are squarely applicable to the case on hand and the plaint
cannot be sustained as against the petitioners.
16. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.712 of 2015 in O.S.No.88 of
2015 dated 28.03.2018 is hereby set aside. The plaint in O.S.No.88 of
2015 is hereby rejected. Consequently, the connected Miscellaneous
Petition is closed. No costs.
17.06.2021
kv
Index :Yes/No
Internet : Yes/No
To
1. The District Munsif, Thiruvarur.
2. The Section Officer,
V.R. Section, High Court of Madras.
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CRP (PD) No.1624 of 2018
G.K.ILANTHIRAIYAN,J.
kv
C.R.P (PD) No.1624 of 2018
https://www.mhc.tn.gov.in/judis/
CRP (PD) No.1624 of 2018
17.06.2021
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