Madras High Court
N.Ganeshan vs S.Periyakaruppan on 5 January, 2022
C.R.P.(MD)No.1251 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD)No.1251 of 2021
and
C.M.P.(MD) No.7210 of 2021
1.N.Ganeshan
2.N.Suresh
3.N.Thiruppathi ... Petitioners
-vs-
S.Periyakaruppan ... Respondent
Prayer :- Petition filed under Article 227 of the Constitution of India, to
set aside the fair and decreetal order passed by the learned District
Munsif, Madurai Taluk at Madurai in I.A.No.66 of 2019 in O.S.No.16 of
2017 dated 24.03.2021 by allowing this revision petitioner with costs.
For Petitioners : Mr.S.Selvakumar
For Respondent : Mr.Babu Rajendran
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C.R.P.(MD)No.1251 of 2021
ORDER
The defendants 1 to 3 aggrieved by dismissal of their application
to reject the plaint in the suit in O.S.No.16 of 2017 on the file of the
District Munsif, Madurai Taluk at Madurai, are the revision petitioners
before this Court.
2.The facts in brief are as follows:-
(i) The plaintiff/respondent herein has filed the above referred suit
for a declaration that he is the absolute owner of the suit property and
also for a permanent injunction restraining the defendants, their men and
agents from interfering with his peaceful possession and enjoyment of
the property subject matter of the above suit. The plaintiff would rest his
case on the fact that the suit property is their ancestral property and that
patta in respect of the same, stood in the name of his grandfather
Muthukaruppan. On the death of the Muthukaruppan, his son Samayan,
the plaintiff's father, had inherited the property and was in enjoyment of
the same till his death, intestate, in the year 2015. Samayan had left
behind him surviving the plaintiff, his wife and four daughters, who have
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C.R.P.(MD)No.1251 of 2021
been shown as defendants 4 to 8, as their legal representatives. The
plaintiff's case is that his sisters and mother had relinquished their right
in respect of suit property in his favour and therefore, the plaintiff alone
is the absolute owner of the suit property. However, by way of abandon
caution, he has also impleaded them as party defendants to the suit.
(ii) It was the case that the defendants, who had no right title or
interest in the suit property, were attempting to interfere and trespass into
the suit property which was prevented with the help of the other
villagers. Originally, his father had filed the suit in O.S.No.587 of 2010
against the defendants 1 to 3 for the relief of permanent injunction. The
defendants 1 to 3 had entered appearance in the suit and filed the written
statement in December 2010. Thereafter, the plaint in O.S.No.587 of
2010 was returned for presenting the same before the jurisdictional
Court. The plaintiff would submit that neither he nor his father were
made aware about the return of the said suit. Therefore, they had not
followed up the same. In the 1st week of December, 2016, the defendants
1 to 3 had once again caused interference in the possession and when the
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C.R.P.(MD)No.1251 of 2021
plaintiff had approached his counsel, the counsel was not able to give
proper particulars and on 29.01.2017 the defendants 1 to 3 came to the
suit property and stated that there was no suit pending and therefore, they
had every right to interfere with the plaintiff's possession.
(iii) In the earlier suit, the defendants 1 to 3 in the written
statement claimed a right under three sale deeds. The plaintiff would
submit that when he had applied for encumbrance certificate, there was
no such entries in the encumbrance certificate. Further, the suit property
never belongs to the vendor of the defendants 1 to 3. Therefore, since a
cloud has been cast on his title to the suit property, he has come forward
with the above suit.
(iv) The defendants 1 to 3 had filed a detailed written statement in
which the primary defence was that the suit was barred by limitation on
account of the fact that even in the earlier suit in O.S.No.587 of 2010, the
defendants 1 to 3 had denied the title of the plaintiff to the suit property
and therefore, the limitation had started running from the date of filing of
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C.R.P.(MD)No.1251 of 2021
the written statement in the earlier suit. Without following up the earlier
suit, the plaintiff has come forward with the present suit, which
according to them, has to be dismissed in limini. The defendants 1 to 3
had further submitted that defendants father Nagamalai had other legal
heirs besides the defendants 1 to 3, who also had to be impleaded as
parties to the suit. Therefore, the suit was clearly barred by limitation,
non-joinder of necessary parties as well as for want of cause of action.
The written statement was filed on 20.11.2017. Thereafter, the
defendants 1 to 3 have come forward with the impugned petition on
06.12.2018 for rejecting the plaint. The defendants 1 to 3 had filed
impugned petition seeking to reject the plaint on the ground of limitation
and in the passing have also stated that the suit is barred by non-joinder
of necessary party as well as want of cause of action.
(v)The plaintiff had filed a counter inter alia contending that they
were under the impression that the earlier suit was being taken care of by
their lawyer and they were informed that the suit had been returned for
want of jurisdiction. The said information came to their knowledge only
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C.R.P.(MD)No.1251 of 2021
when the defendants 1 to 3 had started once again interfering with their
possession in the year 2017. The plaintiff would further submit that the
issue of limitation is a mixed question of law and fact, which can be
ascertained only after trial.
(vi) The learned District Munsif, Madurai, after hearing arguments
and perusing the papers, have proceeded to dismiss the said petition on
the ground that the issue of limitation, which being a mixed up question
of law and fact, has to be considered only at the time of trial.
Challenging the same, the revision petitioners/defendants 1 to 3 are
before this Court.
3.The learned counsel appearing for the petitioners/defendants
1 to 3 would submit that even as early as in the year 2010, the defendants
1 to 3 have denied the plaintiff's right to the suit property and therefore,
the limitation had started running since then. He would further submit a
mere perusal of the plaint in the instant case would clearly establish the
above fact, since the plaintiff has referred to the earlier suit. Therefore,
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C.R.P.(MD)No.1251 of 2021
in the light of the above admission, the plaint definitely had to be
rejected. He would submit that even in the plaint, the plaintiff has stated
that in the first week of December 2016, the defendants 1 to 3 had caused
interference in his possession and when the plaintiff had reminded the
above earlier suit, they had fled away. Therefore, the learned counsel
would submit that the plaintiff had knowledge even then. In the counter
statement, the plaintiff has contended that he was under impression that
his suit was pending for disposal and only after the defendants 1 to 3 had
started openly asserting a right in the property, he had come to know
about the fate of the earlier suit and immediately, he has come forward
with the present suit for seeking a declaratory relief.
4.The issue as to whether the suit is barred by limitation, is the
question which has to be established during trial. It is, time and again,
held that while considering the petition for rejecting the plaint, the Court
should also only consider the contents of the plaint and the attendant
documents therein and only if on the face of the same it is crystal clear
that the suit is barred by limitation, then the plaint can be rejected. In the
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C.R.P.(MD)No.1251 of 2021
instant case, the plaintiff has narrated as to why they had not processed
the earlier suit and the cause of action for filing the instant suit. The
contentions raised by the have to be established by them.
5.The learned counsel for the petitioner has relied upon several
judgments. Even in the recent judgment of the Hon'ble supreme Court,
relied upon by the counsel for the petitioner, reported as Rajendra
Bajoria and others Vs Hemand Kumar Jalan and others, the Hon'ble
Supreme Court has held that while considering an application to reject
the plaint, the conditions enumerated in Order VII Rule 11 of CPC, have
to be strictly adhered to. This is on account of the fact that the power
conferred on the Court to terminate a civil action, has a drastic steps. If
from a perusal of the plaint along with the documents filed therein a
cause of action is disclosed, then the Court should hesitate to reject the
plaint. The power conferred under Order VII Rule 11 is one to end
frivolous litigation. Therefore, the Court has to be very circumspect
while dealing with the power under the provision of Order VII Rule 11.
Of course, the Court should be able to see through an astute drafting,
while considering the petition for rejecting the plaint.
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C.R.P.(MD)No.1251 of 2021
6.In the instant case, the plaintiff has not suppressed the earlier
suit, but on the contrary, has proceeded to explain the circumstances, in
which, the present suit has been filed. The issue of limitation therefore
has to necessarily be established by both parties by letting in evidence.
Therefore, I do not find any reason to disagree with the order of the trial
Court.
7.It is also informed that this petition for rejecting the plaint has
been filed when the matter has been posted for cross examination of PW1
and another factor that has to be considered is that the suit is filed for the
reliefs both for declaration as well as for injunction. The main ground on
which the petition under Order VII Rule 11 of CPC has been filed is on
the ground that the declaratory relief is barred by limitation. It is
needless to state that the plaint cannot be rejected in part. Since the relief
of permanent injunction is a continuing cause of action as each act of
interference gives a fresh cause of action.
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C.R.P.(MD)No.1251 of 2021
8.With the above observations, this Civil Revision Petition is
dismissed. Considering fact that the suit is at the stage of cross
examination of the plaintiff, the learned District Munsif, Madurai Taluk,
Madurai, is directed to dispose of the suit in O.S.No.16 of 2017 on or
before 30.04.2022. No costs. Consequently, connected miscellaneous
petition is closed.
05.01.2022
Index : Yes/No
Internet : Yes/No
cp
To
The Judge,
District Munsif,
Madurai Taluk at Madurai
Note:-
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the Advocate /
litigant concerned.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1251 of 2021
P.T.ASHA, J.
cp
C.R.P.(MD)No.1251 of 2021
and
C.M.P.(MD) No.7210 of 2021
Dated: 05.01.2022
_________
https://www.mhc.tn.gov.in/judis
