Madras High Court
V.Jacob Nixon vs Vijayakumari on 21 April, 2022
C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 05.07.2022
Pronounced on 28.07.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
V.Jacob Nixon
... Petitioner
Vs.
Vijayakumari
... Respondent
PRAYER : Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair decreetal order passed in I.A.No.215
of 2019 in O.S.No.114 of 2018 dated 21.04.2022 by the District Judge – II,
Kanchipuram.
For Petitioner : Mr.D.Murthy
For Respondent : Mr.S.Mayilnathan
ORDER
This Civil Revision Petition has been preferred challenging the order of
the learned District and Sessions Judge, Kanchipuram dated 21.04.2022, made
in I.A.No.215 of 2019 in O.S.No.114 of 2018.
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C.R.P (PD).No.2047 of 2022 and
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2. Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent and perused the materials available on record.
3. The revision petitioner is the defendant in the suit filed by the
respondent / plaintiff for the relief of recovery of possession. The petitioner /
defendant has filed a petition to reject the plaint under Order VII Rule 11 of
C.P.C and the said petition was dismissed. Aggrieved over that, this Civil
Revision Petition has been preferred.
4. The learned counsel for the petitioner submitted that the respondent /
plaintiff has no locus standi to file a suit against him, since the revision
petitioner has already filed a suit in O.S.No.170 of 2005, for the relief of
specific performance in respect of the same suit property, in view of the sale
agreement executed between the petitioner and one Selvanayagam on
15.04.2005; the defendants in O.S.No.170 of 2005, namely Varadarajan and
Nirmala have executed a power of attorney in favour of one Selvanayagam;
the said Selvanayagam had executed a sale agreement dated 15.04.2005, in
favour of the revision petitioner for himself and as a power agent for the
defendants viz., Varadarajan and Nirmala; since Selvanayagam did not
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C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
execute the sale deed as agreed, the revision petitioner filed the suit in
O.S.No.170 of 2005, for seeking the relief of specific performance; the said
Selvanayagam died in the year 2005; after the death of Selvanayagam, the
defendants in O.S.No.170 of 2005, sold the suit property to the respondent;
So, the respondent is a person who has purchased the property during the
pendency of the earlier suit in O.S.No.170 of 2005.
5. According to the revision petitioner, since an exparte decree was
passed in O.S.No.170 of 2005 and the same is pending, the respondent /
plaintiff is not entitled to maintain this suit for recovery of possession. The
further contention of the revision petitioner is that the learned Trial Judge did
not notice the decree has already been passed in O.S.No.170 of 2005, in
favour of the revision petitioner; and respondent has suppressed all the said
facts and filed the suit without any cause of action and hence the suit is not
maintainable.
6. The learned counsel for the respondent / plaintiff submitted that the
vendors of the respondent / plaintiff has not executed any power of attorney in
favour of one Selvanayagam as alleged by the revision petitioner; therefore,
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C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
the respondent / plaintiff is a bonafide purchaser; since, the revision petitioner
/ defendant is a trespasser of the suit property, the respondent has filed a suit
in O.S.No.114 of 2018, for recovery of possession; since there are triable
issues, the learned Trial Judge has rightly dismissed the petition to reject the
plaint.
7. Point for consideration :
Whether the order of the learned Trial Judge in dismissing the petition
filed by the revision petitioner under Order VII Rule 11 to reject the plaint in
O.S.No.114 of 2018, is fair and proper?
8. The contention of the revision petitioner is that he is an agreement
holder for the suit property. It is alleged that the property was owned jointly
by Selvanayagam and the vendors of the respondent / plaintiff viz.,
Varadarajan and Nirmala. The petitioner has stated that the said Varadarajan
and Nirmala had executed a power of attorney in favour of Selvanayagam and
Selvanayagam as power agent and for himself executed a sale agreement dated
15.04.2005, in favour of the revision petitioner. It is true that the revision
petitioner has filed a suit in O.S.No.170 of 2005, for seeking the relief of
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C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
specific performance against the vendors of the respondent / plaintiff and in
the said suit he has got an exparte decree. The vendors of the respondent /
plaintiff viz., Varadarajan and Nirmala had subsequently filed a petition to set
aside the exparte decree and that was dismissed by the learned Trial Court.
However, the said Varadarajan and Nirmala challenging the above said order
of dismissal, by filing a Civil Miscellaneous Petition before the District Judge,
Kanchipuram in C.M.A.No.3 of 2012. The said petition was allowed vide
order dated 21.11.2016. In view of the same, the suit in O.S.No.170 of 2005,
got revived and now pending for disposal.
9. The learned counsel for the respondent / plaintiff submitted that the
vendors of the respondent / plaintiff were seriously contesting the above said
suit. Since the suit property was sold in favour of the respondent / plaintiff,
the respondent / plaintiff has filed a suit for recovery of possession. So far as
the respondent / plaintiff is concerned, she claims herself as a rightful
purchaser from lawful owners and acquired lawful ownership for the suit
property. By making such averments, she has filed the suit for recovery of
possession. In the said suit, it might be the defence of the revision petitioner /
defendant that he is the agreement holder of the suit property and also got the
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C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
relief of specific performance in his favour against the vendors of the
respondent / plaintiff.
10. It is to be noted from the averments of the plaint that the respondent
/ plaintiff claims her right over the suit property through her purchase from
the original owners. While taking the plaint on file, the Court cannot make an
exhaustive enquiry into the pleadings. The respondent / plaintiff did not deny
about the pendency of the earlier suit in O.S.No.170 of 2005. But according to
her, it is a dispute between her vendors and the revision petitioner. Even if the
revision petitioner contends that the respondent / plaintiff had purchased the
property even after knowing about the sale agreement in his favour, that has
to be stated by way of filing his written statement.
11. The respondent / plaintiff pleads the cause of action basing on
purchase she made from the original owners. If in the earlier suit in
O.S.No.170 of 2005 the Court holds that the agreement dated 15.04.2005, is
binding on the vendors of the respondent, the plaintiff will have a bad case.
Just because the judgment of the earlier case will determine the quality of the
subsequent suit or might have impact on the entitlement of the plaintiff in the
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subsequent suit, it cannot be said that the subsequent suit is not maintainable.
Obviously, the respondent / plaintiff is not a party to the suit pending in
O.S.No.170 of 2005. In fact, the respondent / plaintiff has got the knowledge
about the pendency of the earlier suit, but, she had chosen to ignore it by
calling it as a fraudulent suit and filed the present suit. In view of the
pleadings so made by the respondent / plaintiff in the present suit and the
revision petitioner claims himself as the agreement holder and filed a suit,
there are triable issues in both cases.
12. If the revision petitioner / defendant could successfully establish his
entitlement for the relief of specific performance in the suit filed by him, the
suit filed the respondent / plaintiff will fail. If the revision petitioner could not
succeed in the suit filed for specific performance, then the respondent /
plaintiff will be entitled to get the relief of recovery of possession as prayed
by her in this suit. At the best, the revision petitioner could have got the
subsequent suit i.e., O.S.No.114 of 2018, stayed till the disposal of earlier suit
in O.S.No.117 of 2005, by way of filing a petition under Section 10 of C.P.C.
But, he cannot claim that there is no cause of action for the present suit. The
revision petitioner derives his cause of title from the alleged sale agreement
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C.M.P.No.10526 of 2022
dated 15.04.2005. Whereas, the respondent / plaintiff derives her cause of
action from the date when she got the sale deed executed in her favour from
the owners of the property viz., Varadarajan and Nirmala on 20.12.2006.
13. While taking the suit on file, the learned Trial Judge cannot make
an exhaustive enquiry into the merits of the pleadings. It can only be seen
whether the averments of the plaint makes out a prima facie case basing on
the cause of the action pleaded by the plaintiff and it is barred by limitation or
under any law. The learned Trial Judge has rightly observed that there are
certain triable issues have arisen in the present suit and hence it cannot be
rejected. Only when the plaintiff does not disclose any right or files a suit
with presumptive cause of action, the Court needs to be vigilant about its
maintainability. Since the revision petitioner and the respondent have filed
their suits on the basis on their respective claim for entitlement and basing on
their respective cause of action, both the suits should be tried in order to find
out who is entitled to get the remedy and why.
14. As stated earlier, the judgment of the earlier suit in O.S.No.170 of
2005, cannot have any bearing on the subsequent suit in O.S.No.114 of 2018
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C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
and hence, the parties can take steps either to try both suits jointly or to stay
the subsequent suit until the disposal of the earlier suit, if so advised. Since,
the learned Trial Judge has rightly dealt the issue and found that the
respondent / plaintiff is entitled to maintain the suit on the basis of the
averments made in the plaint, I find no reason for interference.
15. Hence, this Civil Revision Petition stands dismissed and the order
passed by the learned District and Sessions Judge, Kanchipuram dated
21.04.2022, made in I.A.No.215 of 2019 in O.S.No.114 of 2018, is confirmed.
No costs. Consequently, connected miscellaneous petition is closed.
Index: Yes/No 28.07.2022
Speaking / Non Speaking Order
gsk
To
The District and Sessions Judge,
Kanchipuram.
https://www.mhc.tn.gov.in/judis
C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
R.N.MANJULA, J
gsk
C.R.P (PD).No.2047 of 2022 and
C.M.P.No.10526 of 2022
28.07.2022
https://www.mhc.tn.gov.in/judis
