Madras High Court
Saritha vs Jeyalakshmi on 4 February, 2022
C.R.P.(MD) No.2838 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.02.2022
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.2838 of 2018
and
C.M.P.(MD) No.12311 of 2018
Saritha ... Petitioner
vs.
1.Jeyalakshmi
2.Senthilkumar
3.M.Muruganantham
(R3 given up because the petitioner
is not claiming any relief against R3)
... Respondents
PRAYER:- This Petition is filed under Article 227 of the Constitution of India,
to set aside the fair and decreetal order passed in I.A.No.467 of 2018 in O.S.No.
9 of 2018 on the file of the learned Principal District Munsif, Manamadurai,
dated 06.12.2018.
For Petitioner : Mr.S.John for
Mr.G.Jeremiah
For R1 & R2 : Mrs.Vijaya Kumari Natarajan
For R3 : Given up
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C.R.P.(MD) No.2838 of 2018
ORDER
This Civil Revision Petition is filed challenging the order passed in
I.A.No.467 of 2018 in O.S.No.9 of 2018 on the file of the learned Principal
District Munsif, Manamadurai. The 2nd defendant is the revision petitioner
before this Court. The order impugned in this revision is the dismissal of the
application to reject the plaint in O.S.No.9 of 2018.
2.In order to appreciate the challenge to the said order, it is necessary to
briefly touch upon the facts that has culminated in the filing of the above
revision. The parties are referred to in the same litigative status as before the
Principal District Munsif Court, Manamadurai.
3.The plaintiffs had filed a suit O.S.No.9 of 2018 seeking the relief of
permanent injunction against the defendants restraining them from interfering
with the plaintiffs' peaceful possession and enjoyment of the suit properties. The
property in question was the building bearing Old.D.Nos.148, 149, 150 and 151,
New.D.Nos.2/13, 2/15, 2/17 and 2/19 situated at Sivagangai Road, Keelkarai,
Manamadurai.
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4.The case of the plaintiffs as set out in the plaint in question was that the
suit property belonged to the husband of the 1 st plaintiff, who is the father of the
2nd plaintiff, late.Ramakrishna Pillai, who had purchased the same from
Ramasami Raju, S/o.Mallikarjuna Raju, and his minor children under a sale
deed dated 03.03.1989. The plaintiffs' contention is that from the date of the
purchase, Ramakrishna Pillai has been in possession and enjoyment of the
property, where he was running a tea shop. Ramakrishna Pillai died on
19.07.2010 leaving behind the plaintiffs as his legal representatives. They have
continued to run the tea shop.
5.The plaintiffs would contend that the predecessor in title of the
property, Mallikarjuna Raju and his son, Ramasamy Raju, the vendor of
late.Ramakrishna Pillai had filed suits O.S.Nos.49 of 1996 and 107 of 1998
against late.Ramakrishna Pillai for declaration and recovery of possession. The
said suits were taken on appeal right up to this Court and it is a reported
judgment in 2002 (1) CTC 523, as per which late.Ramakrishna Pillai's
possession and enjoyment of the property was protected with an order of
injunction restraining the respondents from interfering with the possession.
Since there was an obstruction in his possession by the children of Mallikarjuna
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C.R.P.(MD) No.2838 of 2018
Raju, namely, his daughter, Usha Devi @ Usha Venkateswaran, and son,
Ramasamy Raju, late.Ramakrishna Pillai had filed a suit O.S.No.50 of 2001 on
the file of the learned Additional District Munsif, Manamadurai. This suit was
decreed in favour of late.Ramakrishna Pillai, against which Usha Devi @ Usha
Venkateswaran had filed an appeal in A.S.No.75 of 2007, which she later
allowed to be dismissed for default on 22.06.2009. Therefore, the judgment and
decree in O.S.No.50 of 2001 had attained finality.
6.While so, in the year 2014 around the month of March, the said Usha
Devi @ Usha Venkateswaran attempted to sell the property to the third parties
in order to create third party interest. The plaintiffs had issued a legal notice on
04.03.2014. A publication was also issued warning third parties from
purchasing the property. However, under two sale deeds dated 14.12.2017,
registered as Doc.Nos.2169/2017 and 2170 of 2017, the property was sold to the
defendants, who attempted to interfere in the possession and therefore, the suit.
7.The defendants, who had entered appearance, had filed their written
statement. They would submit that late.Ramakrishna Pillai had been inducted as
a tenant in respect of the suit property, where he was running a tea shop. They
had questioned the sale executed by Ramasamy Raju in favour of
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C.R.P.(MD) No.2838 of 2018
late.Ramakrishna Pillai in respect of ancestral property and that too when his
father was alive and without obtaining permission from him. The defendants
would submit that therefore the suit had to be dismissed. The defendants had
also pleaded mis-joinder of necessary parties. The defendants had also
questioned as to why the plaintiffs have not sought for declaration that the sale
in favour of the defendants was invalid and not binding on them. They would
also contend that the said Mallikarjuna Raju had executed a settlement in favour
of Usha Devi @ Usha Venkateswaran on 09.02.1998 under a registered
settlement deed and therefore, the suit property belonged to Usha Devi @ Usha
Venkateswaran.
8.Further, Ramasamy Raju had executed an agreement of sale dated
05.06.1988 agreeing to sell his 1/14th share in the suit property in favour of
Usha Devi @ Usha Venkateswaran. This has culminated in a suit for specific
performance being filed by Usha Devi @ Usha Venkateswaran before the
District Munsif Court, Manamadurai in O.S.No.147 of 1998. The suit has been
decreed and execution proceeding has also been instituted in E.P.No.21 of 1999.
The sale deed has also been executed and registered on 28.07.1999. The
exclusive title of Usha Devi @ Usha Venkateswaran to the suit property has also
been declared by the learned District Munsif, Manamadurai on 28.07.1999.
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Therefore, in the written statement, the defendants had given out that they are
the owners of the suit property by virtue of the sale in their favour by Usha Devi
@ Usha Venkateswaran.
9.After filing the written statement on 22.02.2018, the defendants had
come forward with the application for rejecting the plaint in I.A.No.467 of 2018
in the month of September, 2018. It is their case that the plaintiffs had
suppressed the filing of the earlier suits O.S.No.138 of 1991 and O.S.No.311 of
1991 and A.S.No.160 of 1996 and prepared the plaint only on the basis of the
suit O.S.No.50 of 2001. The suit is based on the sale deed dated 03.03.1989
suppressing the earlier suit filed by late.Ramakrishna Pillai for declaration and
permanent injunction. The plaintiffs have not filed a suit for partition though
their right to a 1/14th share was declared in the earlier suit O.S.No.138 of 1991
in A.S.No.160 of 1996 and O.S.No.311 of 1991 in A.S.No.133 of 1996 and
therefore, the present suit was barred under Article 65 of the Limitation Act.
10.The learned counsel appearing for the plaintiffs was the Advocate
Commissioner in the earlier suit in O.S.No.138 of 1991. The counsel therefore
had knowledge about the proceedings between late.Ramakrishna Pillai and the
vendors of the defendants and therefore, the plaint has been cleverly drafted
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C.R.P.(MD) No.2838 of 2018
suppressing the earlier judgment and decree. Therefore, the application for
rejecting the plaint is only on the ground that the earlier suits O.S.No.138 of
1991 and O.S.No.311 of 1991 had been suppressed.
11.The learned Principal District Munsif, Manamadurai, by his very
detailed order dated 06.12.2018 had dismissed the application. The learned
Judge opined that the defendants were third parties to the earlier proceedings
and only the relevant details had been set out in the plaint in order to provide a
cause of action relevant for the suit. The learned Judge has very clearly held that
there was no suppression of any facts. Challenging the same, the 2nd defendant
has come before this Court.
12.Mr.J.John, learned counsel appearing for the petitioner would
extensively make his submissions that the plaintiffs have come to Court with
unclean hands. The plaintiffs have suppressed the earlier suit O.S.No.138 of
1991, which was filed by late.Ramakrishna Pilllai for declaration and injunction
in respect of D.No.149. This suit was dismissed, against which he preferred
A.S.No.160 of 1996. The appeal was partly allowed holding that the suit
property was a joint family property, in which Ramasamy Raju had a share.
Thereafter, O.S.No.49 of 1996 was filed by Mallikarjuna Raju in respect of shop
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C.R.P.(MD) No.2838 of 2018
No.148 for a declaration that the property is a joint family property excluding
Ramasamy Raju and for recovery of possession from Ramakrishna Pillai. The
suit was dismissed, against which A.S.No.24 of 1999 was filed. Likewise,
O.S.No.107 of 1998 was filed for the same relief in respect of D.No.151
claiming the property to be a joint family property excluding Ramasamy Raju. A
decree was passed in the said suit stating that it was a joint family property
including Ramasamy Raju. Mallikarjuna Raju has filed A.S.No.25 of 1999
challenging this judgment and decree, which was partly allowed and possession
was directed to be handed over to the family. This was challenged by
late.Ramakrishna Pillai by filing S.A.Nos.384 and 385 of 2000. This Court had
held that since the purchase is from a co-owner, the said Ramakrishna Pillai was
entitled to be in possession, until a partition decree is passed.
13.Mallikarjuna Raju had also filed O.S.No.311 of 1991 to declare
himself as the owner of property in respect of D.No.150 and also for an
injunction. The suit was decreed and on appeal by Ramakrishna Pillai in
A.S.No.133 of 1996, the property was directed to be the joint family property
including Ramasamy Raju. Yet another suit, which has been filed is O.S.No.50
of 2001 against Usha Devi @ Usha Venkateswaran and Ramasamy Raju by
late.Ramakrishna Pillai for an injunction in respect of D.Nos.148, 149, 150 and
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C.R.P.(MD) No.2838 of 2018
151, which was decreed in his favour. Usha Devi @ Usha Venkateswaran had
challenged this judgment and decree by filing A.S.No.75 of 2007. However, she
allowed the appeal to be dismissed for default. Therefore, the injunction decree
in respect of D.Nos.148, 149, 150 and 151 in favour of late.Ramakrishna Pillai
had attained finality. It is thereafter that the property had been sold to the
defendants. The learned counsel would state that all these proceedings have
been deliberately kept away and suppressed by the plaintiffs and therefore, on
this score, the suit has to be rejected. The following judgments have been cited
in support of his contentions:-
“1) An unreported order of this Court in C.R.P.No.4171 of
2010 dated 13.07.2018 (Vijayalakshmi Vs. R.Balasubramaniam).
2) In the case of Rajendra Bajoria and others Vs. Hemant
Kumar Jalan and others reported in 2021 SCC Online SC 764.
3) In the case of Sri Lankappa and others Vs. Karnataka
Industrial Corporation and others reported in 2016 (4) CTC 353.”
14.Per contra, Mrs.Vijayakumari Natarajan, learned counsel appearing
for the respondents 1 and 2 would submit that all the proceeding relevant to the
suit has been set out by the plaintiffs. The right of late.Ramakrishna Pillai to
enjoy the property and continue to be in the premises has been declared in the
suit O.S.No.50 of 2001, which was filed by late.Ramakrishna Pillai against
Usha Devi @ Usha Venkateswaran, the vendor of the defendants herein in
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C.R.P.(MD) No.2838 of 2018
respect of the suit schedule properties. This has been pleaded in the plaint. Usha
Devi @ Usha Venkateswaran, who challenged the said decree by way of an
appeal, has allowed the appeal to be dismissed for default. Therefore, the right
to be in possession has been confirmed by this judgment. Since the property has
been purchased by the defendants from the said Usha Devi @ Usha
Venkateswaran, the suit, which has relevance to the cause of action, has been
cited and therefore, it cannot be stated that the plaintiffs have suppressed the
facts. She also submit that though the application for rejecting the plaint had
been filed by both the defendants, the 1st defendant has not chosen to challenge
the order and by not filing the revision he has agreed to abide by the order. She
would rely on the following judgments in support of his contentions.
“1.C.Natarajan Vs. Ashim Bai and another reported in (2007)
14 Supreme Court Cases 183.
2.N.Ravindran Vs. V.Ramachandran reported in 2011 (3) CTC
3.Surjit Kaur Gill and another Vs. Adarsh Kaur Gill and
another reported in 2014 (2) CTC 199.
4.P.V.Guru Raj Reddy represented by GPA Laxmi Narayanan
Reddy and another Vs. P.Neeradiia Reddy and others etc reported in
2015 (1) TNCJ 907 (SC).
5.Chemplast Sanmar Limited, Chennai 600 086 Vs.
Senthamizhselvi and another reported in 2016 (4) CTC 344.
6.Balasaria Construction Private Limited Vs. Hanuman Seva
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C.R.P.(MD) No.2838 of 2018
Trust and others reported in (2006) 5 Supreme Court Cases 658.
7.C.V.Karthikeyan Vs. P.Subramanaiam and another reported
in 2015 (1) TNCJ 525 (Mad).
8.G.Subramani Vs. V.Rajasekaran and another reported in
2013 (4) CTC 468.
9.Virgo Industries (Eng). Private Limited Vs. Venturetech
Solutions Private Limited reported in (2013) 1 Supreme Court Cases
10.Guruvamal and another Vs. Alagammal and other reported
in 2017 (4) CTC 779.”
15.Heard the learned counsels on either side and perused the records.
16.Since the learned counsel for the petitioner/2nd defendant had argued
extensively on the issue that there is a suppression, it is necessary to look into
the contents of the plaint. The suit is filed for injunction against the defendants.
The defendants have purchased the property from Usha Devi @ Usha
Venkateswaran. The plaintiffs in their plaint have narrated in extenso about the
suit O.S.Nos.49 of 1996 and 107 of 1998, which was filed by Mallikarjuna Raju
for a declaration that the property therein namely, D.No. 148 and 151 are the
joint family property excluding the son, Ramasamy Raju, the vendor of
late.Ramakrishna Pillai and for recovery of possession from late.Ramakrishna
Pillai. In the appeal A.S.Nos.24 and 25 of 1999, the decree insofar as the
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declaration was dismissed, but the said Ramakrishna Pillai was directed to hand
over the possession to the plaintiffs. This was challenged by Ramakrishna Pillai
by filing S.A.Nos.384 and 385 of 2000. These appeals were allowed by stating
that since the purchase is from a joint owner, he is entitled to possession till
such time as a partition decree is obtained. Thereafter since there was a
disturbance to his possession from Usha Devi @ Usha Venkateswaran and
Ramasamy Raju, his vendor, Ramakrishna Pillai had filed O.S.No.50 of 2001
for injunction. The suit was decreed by a judgment and decree dated
16.03.2004. The said judgment and decree was challenged only by Usha Devi
@ Usha Venkateswaran. However, she allowed the matter to be dismissed for
default and the judgment dismissing the appeal was passed on 22.06.2009. By
reason of this judgment, the decree in O.S.No.50 of 2001 had attained finality.
The suit O.S.No.50 of 2001 had been filed in respect of the property, which is
the property in the present suit. The pleadings regarding this suit and the appeal
have been set out clearly in the plaint and it is only these suits that has relevance
to the respondents, who are claiming under the said Usha Devi @ Usha
Venkateswaran. Even assuming without admitting that the other suits have some
relevance, it is to be established only at the time of trial. The Courts have time
and again held that when considering a petition for rejection of plaint, it is only
the contents of the plaint that has to be looked into.
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C.R.P.(MD) No.2838 of 2018
17.The Hon'ble Supreme Court in the judgment of P.V.Guru Raj Reddy
represented by GPA Laxmi Narayanan Reddy and another Vs. P.Neeradiia
Reddy and others etc reported in 2015 (1) TNCJ 907 (SC) has observed as
follows:-
“Rejection of the plaint under Order 7, Rule 11 of the CPC is
a drastic power conferred in the Court to terminate a civil action at
the threshold. The conditions precedent to the exercise of power
under Order 7, Rule 11, therefore, are stringent and have been
consistently held to be so by the Court. It is the averments in the
plaint that has to be read as a whole to find out whether it discloses
a cause of action or whether the suit is barred under any law. At the
stage of exercise of power under Order 7, Rule 11, the stand of the
defendants in the written statement or in the application for
rejection of the plaint is wholly immaterial. It is only if the
averments in the plaint ex facie do not disclose a cause of action or
on a reading thereof the suit appears to be barred under any law the
plaint can be rejected. In all other situations, the claims will have to
be adjudicated in the course of the trial.”
18.In the petition before this Court, the rejection of the plaint is sought
for only on the ground of suppression. As discussed earlier, there is no
suppression of facts. In fact, the judgments, which have a direct bearing on the
defendants, have been discussed in detail in the plaint. Therefore, there is no
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C.R.P.(MD) No.2838 of 2018
suppression. The provisions of Order VII Rule 11 of the Code of Civil
Procedure would make it clear that the plaint can be rejected only if on the face
of the plaint, the ingredients contemplated in Rule 11 (a), (b) and (d) are made
out. In the instant case, no such grounds have been made out. The learned
Principal District Munsif, Manamadurai has passed a very detailed and well
considered order, which does not require any reconsideration on the part of the
Court. Consequently, the Civil Revision Petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 04.02.2022
Internet : Yes / No
mm
To
The Principal District Munsif,
Manamadurai.
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C.R.P.(MD) No.2838 of 2018
P.T.ASHA, J.
mm
C.R.P.(MD) No.2838 of 2018
04.02.2022
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