Madras High Court
R.Madan Chand (Died) vs R.Narendra Kumar on 24 January, 2022
C.R.P.(PD).No.1299 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)No.1299 of 2016
and C.M.P.No.7267 of 2016
1.R.Madan Chand (died)
2.M.Kavitha
3.M.Sharmila
4.M.Nanda Kumari
5.M.Praveen Kumar .. Petitioners
(Petitioners 2 to 5 brought on record
as LRs of the deceased 1st petitioner
viz., R.Madan Chand vide Court order
dated 19.01.2022 made in C.M.P.No.321
of 2022 in C.R.P.No.1299 of 2016)
Vs.
R.Narendra Kumar .. Respondent
Prayer: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the order and decree dated 26.10.2015
made in I.A.No.682 of 2010 in O.S.No.14 of 2008 on the file of the
Additional District Court at Chengalpattu.
1/12
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C.R.P.(PD).No.1299 of 2016
For Petitioners : Mr.V.Ramana Reddy
For Respondent : Mr.R.Thiagarajan
ORDER
(The matter is heard through 'video conferencing')
This Civil Revision Petition is filed against the order and decree
dated 26.10.2015 made in I.A.No.682 of 2010 in O.S.No.14 of 2008 on
the file of the Additional District Court at Chengalpattu.
2.The 1st petitioner is 2nd defendant in O.S.No.14 of 2008 on the
file of the Additional District Court at Chengalpattu. The respondent
filed said suit claiming 15 reliefs of declaration and injunction in respect
of the suit property. The 1st petitioner and 4th defendant filed written
statement. The 1st petitioner filed present I.A.No.682 of 2010 under
Order VII Rule 11 of C.P.C., for rejection of plaint. According to the 1st
petitioner, the plaint does not disclose any cause of action, the suit is
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C.R.P.(PD).No.1299 of 2016
barred by limitation, the respondent has no right over the suit property
and the respondent has no locus standi to file the suit. There is no nexus
between the documents relied upon and the relief sought for by the
respondent. The respondent and his father filed O.S.No.800 of 1982 on
the file of the District Munsif Court, Poonamallee and the said suit was
transferred to the file of District Munsif Court, Tambaram, for declaration
of title in respect of 2 Acres and 2.5 cents in Perungudi village, based on
the alleged settlement deed dated 29.08.1981. On the date of alleged
settlement deed, the 1st defendant did not have any title over the said
property, as he already settled the suit property by deed of settlement
dated 16.04.1991 on the 1st petitioner. The suit was transferred to the
District Munsif Court, Tambaram and was renumbered as O.S.No.79 of
1993. Subsequently, the respondent's father died on 28.11.1997. In the
same year, the suit was again transferred from the District Munsif Court,
Tambaram to the District Munsif-cum-Judicial Magistrate Court, Alandur
and was renumbered as O.S.No.55 of 1997. The respondent did not
disclose the death of the father G.Rathanchand as co-plaintiff and he did
not take steps to record all the legal representatives of the deceased 1st
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C.R.P.(PD).No.1299 of 2016
plaintiff in O.S.No.800 of 1982 (O.S.No.79 of 1993 on the file of the
District Munsif Court, Tambaram and O.S.No.55 of 1997, District
Munsif Court, Alandur) in the said suit. The respondent, intentionally,
knowingly obtained an exparte decree in the name of the dead person.
The 1st petitioner filed application to set aside the exparte decree. The
decree passed in O.S.No.55 of 1997 itself is inexecutable and is hit by
suppression of material facts. The respondent herein cannot maintain the
present suit. One of the plot owners who purchased part of the portion of
the suit property filed O.S.No.131 of 2007 before the Principal District
Munsif Court, Alandur, for permanent injunction. After contest, the said
suit was decreed by the judgment and decree dated 29.12.2009. Since
title for the entire property is common, the judgment and decree passed in
O.S.No.131 of 2007 is binding on the respondent and hence, the present
suit is not maintainable. However, the respondent has under valued the
suit. On that ground also the plaint is liable to be rejected. The suit filed
by the respondent is vexatious litigation and is liable to be rejected.
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C.R.P.(PD).No.1299 of 2016
3.The respondent filed counter affidavit denying all the averments
and submitted that the averments in the plaint has to be considered to
find out whether the plaint discloses cause of action and whether suit is
barred by limitation. The respondent further stated in the counter
affidavit that he has valued the suit for the relief sought for by him and
filed Court fee accordingly. It is for the Court to decide whether the suit
is properly valued or under valued. The earlier settlement dated
16.04.1981 in favour of the 1st petitioner was never acted upon. The plea
of resjudicata, in the absence of any foundation cannot be considered in
the application filed by the 1st petitioner under Order VII Rule 11 of
C.P.C. and the same has to be decided, considering the oral and
documentary evidence let in by the parties during the trial. There is no
merit in the application filed by the 1st petitioner. In the plaint, the
respondent has disclosed valid cause of action and it is not barred by law.
The present application is filed with a motive to drag on the proceedings
and prayed for dismissal of application.
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C.R.P.(PD).No.1299 of 2016
4.The learned Judge, considering the averments in the affidavit,
counter affidavit, plaint, provisions of Order VII Rule 11 of C.P.C., and
judgments relied on by the parties, dismissed the application.
5.Against the said order dated 26.10.2015 made in I.A.No.682 of
2010 in O.S.No.14 of 2008, the 1st petitioner has come out with the
present Civil Revision Petition. Pending Civil Revision Petition, the 1st
petitioner died and petitioners 2 to 5 were brought on record as legal
heirs of the deceased 1st petitioner vide Court order dated 19.01.2022
made in C.M.P.No.321 of 2022 in C.R.P.No.1299 of 2016.
6.The learned counsel appearing for the petitioners reiterated the
averments made in the affidavit and grounds raised in the Civil Revision
Petition and submitted that order of the learned Judge is perverse, the suit
filed by the respondent is abuse of process of Court and law, the suit does
not disclose any cause of action, the suit is barred by limitation as per
Article 59 of the Limitation Act, 1963. The learned Judge failed to
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C.R.P.(PD).No.1299 of 2016
exercise judicial discretion and erroneously dismissed the application and
prayed for setting aside the order of the learned Judge.
7.The learned counsel appearing for the respondent reiterated the
averments in the counter affidavit filed in the present application and
submitted that cause of action is bundle of date of action and it is
gathered from meaning of the plaint. The plaint discloses the cause of
action and the suit is not barred by any law. The issue raised by the
petitioners have to be decided only based on the evidence let in by the
parties during trial and prayed for dismissal of Civil Revision Petition
and speedy disposal of the suit.
8.Heard the learned counsel appearing for the petitioners as well as
the respondent and perused the entire materials available on record.
9.From the materials on record, it is seen that the respondent has
filed suit for 15 reliefs, including declaration that he is the absolute
owner of the property, against the 1st petitioner and other defendants.
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C.R.P.(PD).No.1299 of 2016
According to the respondent, originally, the suit property was settled on
the 1st petitioner's father. The said settlement deed was not acted upon
and the suit property was settled by the deed of settlement dated
29.08.1981 on the respondent and his father. The respondent also stated
about the suit for declaration and the injunction filed by the respondent
and his father and the said suit being decreed in their favour. According
to the 1st petitioner, the settlement deed executed in favour of the
respondent and his father is not valid and the 1st defendant did not have
any right over the suit property on that date, as same was already settled
on the 1st petitioner on 16.04.1981 and 1st petitioner subsequently, settled
the same in favour of his wife, the 4th defendant in the suit. On these
contentions, the 1st petitioner has stated that plaint does not disclose
cause of action and suit is barred by limitation. These contentions of the
1st petitioner is his defence in the suit, which cannot be considered in an
application filed for rejection of plaint. In an application filed for
rejection of plaint, the averments in the plaint and documents filed along
with the plaint alone can be considered to decide the issue.
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C.R.P.(PD).No.1299 of 2016
10.It is also well settled that plaint has to be read as a whole in a
meaningful manner to find whether plaint discloses cause of action and
suit is barred by limitation. A reading of the plaint, especially the cause
of action paragraphs clearly discloses the cause of action for the suit.
Whether the suit is barred by limitation on the basis of averments in the
plaint or on the defence taken by the petitioners can be decided only on
the conclusion of the trial by appreciating oral and documentary evidence
let in by the respondent and petitioners.
11.As far as the contention of the petitioners that suit is hit by
principles of resjudicata is concerned, the suit in O.S.No.131 of 2007,
relied on by the 1st petitioner is filed by one of the purchaser, for
injunction. In the said suit, the title of the respondent was not an issue
and the same was not decided in the said suit. In the present suit, the
respondent is claiming declaration that he is the owner of the suit
property, for injunction and other reliefs. The issue and parties in both the
suits are different and the present suit filed by the respondent therefore is
not hit by principles of resjudicata.
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C.R.P.(PD).No.1299 of 2016
12.The petitioners also contend that the respondent has
undervalued the suit and not paid proper Court fee. The petitioners have
not filed any materials to show that as to how the respondent
undervalued the suit and what is the correct valuation of the suit property.
In the absence of any materials placed before the Court, in the
application filed by the 1st petitioner under Order VII Rule 11 of C.P.C.,
the Court cannot reject the plaint, holding that the suit is undervalued.
13.According to the petitioners, the suit is barred by limitation as
father of the respondent died on 28.11.1997 and present suit is filed only
in the year 2008 and therefore, the suit is barred by limitation. From the
averments in the plaint, it is seen that the respondent is claiming title
over the suit property based on the settlement deed executed in his favour
and in the favour of the respondent and his father. The claim is that he is
the co-owner and therefore, question of limitation being a mixed question
of law and fact, has to be decided only after conclusion of the trial, based
on oral and documentary evidence let in by the parties. The learned Judge
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C.R.P.(PD).No.1299 of 2016
has considered all the materials, scope of Order VII Rule 11 of C.P.C. and
judgments relied on by the parties and dismissed the application, by
giving cogent and valid reason. There is no error in the order of the
learned Judge, warranting interference by this Court.
In the result, this Civil Revision Petition is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
24.01.2022
Index :: Yes/No
gsa
To
The Additional District Judge,
Chengalpattu.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1299 of 2016
V.M.VELUMANI, J.
gsa
C.R.P.(PD).No.1299 of 2016
24.01.2022
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