Amareswarasamy Temple vs Jagadesh Kumar
2022 Latest Caselaw 1222 Mad

                                                                                  C.R.P.(PD).No.3434 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated        :     27.01.2022

                                                           CORAM

                                  THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

                                                C.R.P.(PD).No.3434 of 2017
                                                           and
                                                  C.M.P.No.15946 of 2017


                     Amareswarasamy Temple,
                     Uthukuli Village, Pollachi Taluk,
                     by its Trustee Sri Arun Kumar Kalingarayar,
                     by his Power Agent Siddarth AMR Kalingaryar                   .. Petitioner


                                                            Versus

                     1.Jagadesh Kumar
                     2.Vidya                                                       .. Respondents


                            Civil Revision Petition filed under Article 227 of the Constitution of
                     India, for setting aside the fair and decretal orders dated 23.12.2016 in
                     I.A.No.996 of 2014 in O.S.No.133 of 2014, on the file of the District
                     Munsif's Court, Pollachi.

                                     For Petitioner       : Mr.C.R.Prasanan

                                     For Respondents : Mr.K.Doraisamy




                     1/14



https://www.mhc.tn.gov.in/judis
                                                                                C.R.P.(PD).No.3434 of 2017

                                                           ORDER

The plaintiff/temple is before this Court with this Civil Revision

Petition, aggrieved by the order dated 23.12.2016 passed in I.A.No.996 of

2014 in O.S.No.133 of 2014 passed by the District Munsif Court, Pollachi.

2. The plaintiff has filed the suit for declaration and for

consequential relief of recovery of possession. According to the plaintiff, the

temple was the owner of the suit properties and it was gifted in favour of the

temple (Manibam) much prior to 1968. However, by an order dated

10.10.1968 passed under Section 82 (1) (b) of the Tamilnadu Minor Inams

Abolition and Conversion Act 1963, the settlement Tahsildar has transferred

the title of the temple in favour of the predecessor in title of the defendants.

It is vehemently contended that before transferring the title of the lands

belonging to the temple, no notice was issued to the plaintiff/temple.

Therefore, the order dated 10.10.1968, passed by the settlement Tahsildar is

invalid and it is in violation of principles of natural justice. When the temple

is the owner of the land they ought to have put on notice before transferring

the title of the land. However, no such notice was issued to the

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

plaintiff/temple. The settlement Tahsildar has also invoked Section 11 of the

Act but failed to follow the procedures contemplated thereof. As per Section

11, notice must be sent before initiating the settlement proceedings but such

a notice has not been issued in this case. It was also mainly pleaded in the

plaint that the limitation does not apply to temple lands and even assuming

the defendants have set up possessory title, it will not be a ground to decline

the relief sought for in the suit.

3. On notice, the defendants have taken out an application in

I.A.No.996 of 2014 in O.S.No.133 of 2014, under Order 7 Rule 11 of

C.P.C., to reject the plaint. According to the defendants, there is no cause of

action in the suit and even according to the plaintiff the cause of action arose

on 10.10.1968 when the lands granted to the plaintiff/temple as manibam

was canceled by the Settlement Officer and those lands were vested with the

predecessor in title of the defendants. After five decades, the present suit has

been filed and therefore it is hopelessly bared by limitation. Even otherwise

as against an order dated 10.10.1968, the plaintiff ought to have filed an

appeal before the special Tribunal. The plaintiff having failed to file any

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

such appeal is estopped from filing the present suit. It is also submitted that

the Court fee paid by the plaintiff by invoking Section 25 (a) of the Tamil

Nadu Court Fee and Suit Valuation Act is improper. The suit ought to have

been filed by paying Court fee as contemplated under Section 25 (d) of the

said Act. The exemption conferred by the Government in the

G.O.M.S.No.1574 of 2012 Home Department dated 12.06.1972, is not

applicable to the plaintiff/temple and therefore also the Court fee paid by the

plaintiff is improper, inadequate and therefore also the suit is liable to be

rejected.

4. The counter affidavit has been filed by the plaintiff/temple

contending that the application filed under Order 7 Rule 11 read with

Section 115 C.P.C., is not maintainable. The plea relating to inadequacy of

Court fee has been raised without any basis. The order passed by the

Government in G.O.M.S.No.1574 of 2012, dated 12.06.1972 is very well

applicable to the plaintiff/temple. There is a cause of action for filing the

suit. The plea raised by the plaintiff in the plaint has to be tried and decided

during the course of trial. Therefore, the plaintiff prayed for dismissal of the

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

application filed under Order 7 Rule 11 of C.P.C.

5. The trial Court allowed the application filed under Order 7 Rule

11 C.P.C., by holding that as against the order dated 10.10.1968, the

plaintiff ought to have filed statutory appeal before the special Tribunal,

without doing so, after a delay of more than five decades, the suit filed by

the plaintiff/temple is not maintainable. The Court fee paid by the plaintiff is

also improper when a relief of declaration and recovery of possession is

sought for. The trial Court specifically pointed out that unless it was proved

that the lands in question belonged to the temple the concessions granted

under G.O.M.S.No.1574 of 2012 dated 12.06.1972 cannot be made

applicable to the plaintiff/temple. For all these reasons, the trial Court

rejected the plaint as having no cause of action. Aggrieved by this order, the

present Civil Revision Petition has been filed.

6. The learned counsel appearing for the petitioner vehemently

contended that the suit has to be tried and tested only during the course of

trial. The trial Court ought to have dismissed the application of the

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

defendants for rejection of the plaint under Order 7 Rule 11 of C.P.C. The

trial Court did not consider that a suit filed for the relief of declaration is

maintainable only before the Civil Court and not before the special Tribunal.

There are legal grounds raised in the plaint and the defendants can very well

contest the suit by filing the written statement instead they have filed the

present application under Order 7 Rule 11 of C.P.C., and the trial Court

ought to have dismissed the same. The valuation of Court fee is also proper

and even if the plaintiff has paid inadequate Court fee, it is a curable defect

and even that can also be adjudicated only after trial. The learned counsel

for the petitioner/temple placed reliance on several judgments namely:-

1. A.A.Gopalakrishnan Vs. Cochin Devaswom Board and Others, reported

in 2007 (7) SCC 482.

2. D.Ramachandran Vs. R.V.Janakiraman and Others, reported in 1999

(1) CTC 715.

3. Dr.Ravichander Vs. Karunkaran and Others, reported in 2000 (2) Law

Weekly 720.

4. Madhav Prasad Aggarwal and Another Vs. Axis Bank Limited and

Another, reported in 2019 (7) SCC 158.

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5. Srinivasan and Six Others Vs. Sri.Madhyarjuneswaraswami,

Pattaviathalai, Tiruchirapally District by its Executive Officer at

Pettavaithalai Devasthanam and Others, reported in 1998 (1) CTC 630.

6. Arumigu Logavinayagr Temple Vs. Sankari and Others, reported in

2013 (2) MWN (Civil) 705.

7. Nawab Shaqafath Ali Khan and Others Vs. Nawab Imdad Jah

Bahadur and Others, reported in 2009 (5) SCC 162.

7. These decisions have been relied on to buttress his submission

that even assuming that the defendants have set up a possessary title and

claim adverse possession, such a plea of the defendants can be adjudicated

only after trial. Therefore, the conclusion reached by the trial Court as if

there is no cause of action for filing the suit and the court fee paid is

improper is legally not sustainable and therefore, he prayed for allowing this

Civil Revision Petition.

8. On the other hand, the learned counsel for the respondents

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

would contend that the suit was hopelessly bared by limitation as it was filed

after five decades, by questioning the order dated 10.10.1968 passed by the

settlement Tahsildar. The plaintiff did not file an appeal within the time

specified under the Act before the Tribunal. Having failed to do so the

present suit has been filed with enormous delay. The Court fee paid by the

plaintiff is also improper. An application under Order 7 Rule 11 C.P.C., can

be entertained (i) if there is no cause of action for filing the suit (ii) the Court

fee paid is improper and (iii) the Court before which plaintiff filed the plaint

has no jurisdiction to try the same. In the present case, there is no cause of

action for filing the suit and the cause of action portion in the plaint itself

would prove that the plaintiff had slept over their right, if any for a long

time. While so, the trial Court is right in rejecting the plaint filed by the

plaintiff. The trial Court has also placed decision in N.Ravindran Vs.

V.Ramachandran, reported in 2011 3 CTC 153, to conclude that for

considering an application under Order 7 Rule 11 C.P.C., the averments in

the plaint has to be looked into and if the plaint does not disclose any cause

of action and if it is bared by law, such plaint can be rejected even without

requiring the defendants to file their written statement.

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9. The learned counsel for the respondents also relied several

judgments in:

1. Sayyed Ayaz Ali Vs. Prakash G.Goyal and Others, reported in 2021 (7)

SCC 456.

2.Shamsher Singh Vs. Rajinder Prasad and Others, reported in 1973 (2)

SCC 524.

3.Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others

Vs. Tuticorin Educational Society and Others, reported in 2019 (9) SCC

4.G.Murugan and Others Vs. Manickam, reported in 2002 SCC OnLine

Mad 692 : AIR 2003 MAD 129.

10. These decisions have been relied on to drive home the point that

when there is statutory remedy available and a person who failed to avail

such a remedy, he is estopped from filing a Civil Suit. It was also contended

that as against the rejection of the plaint, a revision will not lie and only an

appeal will lie. By placing reliance on the decision of the Hon'ble Supreme

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

Court in Sayyed Ayaz Ali's case, cited supra, it was contended that when

the averments in the plaint are barred by the period stipulated under the

Limitation Act, it is well open to the trial Court to entertain an application

under Order 7 Rule 11 C.P.C., and reject the plaint.

11. Heard the learned counsel for the petitioner as well as the

learned counsel for the respondents and perused the materials available on

record.

12. It is well settled that for considering an application under Order

7 Rule 11 C.P.C., it is necessary that the averments of the plaint has to be

looked into and if the Court is satisfied that there exist a cause of action, the

application under Order 7 Rule 11 C.P.C., has to be rejected. In such event,

the parties must be relegated to prove their respective claim during the

course of trial. In the present case, it was seen from the order dated

10.10.1968 that earlier the lands in question where in the name of the

plaintiff/temple and subsequently by an order dated 10.10.1968, the title of

the suit properties stood transferred to the predecessors in title of the

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

defendants. However, it is pleaded that no notice was issued to the plaintiff/

temple before passing the order dated 10.10.1968. Even though, the plaintiff

had approached the trial Court with the present plaint for the relief of

declaration and consequential recovery of possession from the defendants,

the plea with respect to the delay in filing the suit is a matter for trial. It is

well settled that limitation is a mixed question of facts and law and such a

issue relating to limitation can be tried only by way of trial in the said suit.

The trial Court therefore, in the opinion of this Court ought to have rejected

the plaint filed by the plaintiff thereby shutting the doors of justice to the

plaintiff to prove their case in the trial.

13. As regards the maintainability of this revision in the decision

relied on by the learned counsel for the petitioner in Nawab Shaqafath Ali

Khan and Others Vs. Nawab Imdad Jah Bahadur and Others, reported in

2009 (5) SCC 162, it was held that even if revisional jurisdiction under

Section 115 Code of Civil Procedure, is not available the remedy in terms of

Article 226, 227 of Constitution of India would always be available in

exercise of the supervisory powers vested in the High Court under 227 of the

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

Constitution of India. Further more, this Civil Revision Petition was filed in

the year 2017 and after four years, this Court is not inclined to hold that the

Civil Revision Petition is not maintainable and an appeal ought to have been

filed before the appellate authority.

14. As regards the plea of Court fee, here again, it is a matter for

trial and the correctness or otherwise of the Court fee paid by the plaintiff

can also be gone into at the time of trial in the suit. Therefore, this Court is

of the view that the comprehensive suit filed by the plaintiff for declaration

and recovery of possession has to be decided only at the time of trial and the

gay-abandon with which the trial Court jumped to a conclusion to reject the

plaint is improper. There are triable issues involved in the present case and

the averments in the plaint can very well be rebutted by the defendants by

filing their written statement. In such view of the matter, the application filed

under Order 7 Rule 11 of CPC., is not maintainable at the instance of the

defendants and the Civil Revision Petition is liable to be allowed.

15. In the result, the orders dated 23.12.2016 in I.A.No.996 of

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

2014 in O.S.No.133 of 2014, on the file of the District Munsif's Court,

Pollachi, is set aside and this Civil Revision Petition is allowed. No costs.

Consequently, connected Miscellaneous Petition is closed.

27.01.2022 gbi

Index: Yes/No Internet: Yes/No

To

The District Munsif's Judge, Pollachi.

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.3434 of 2017

S.KANNAMMAL.J.,

gbi

C.R.P.No.3434 of 2017

27.01.2022

https://www.mhc.tn.gov.in/judis