Madras High Court
Regina Fatima Marie Saint Jacques vs C.Elumalai on 9 January, 2023
CRP No.1004 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.1004 of 2019
and CMP.No.6661 of 2019
Regina Fatima Marie Saint Jacques ..Petitioner
Vs.
E.Karpagam (Deceased)
1.C.Elumalai
2.E.Eganathan
3.E.Eganandhini ..Respondents
[R1 to R3 impleaded vide order
dated 09.01.2023 passed in
CMP.No.5197 of 2022]
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India,
praying to strike off the impugned plaint filed in O.S.No.96 of 2018 on the file of
the II Additional District and Sessions Judge, Puducherry, by allowing the civil
revision petition.
For Petitioner : Mr.G.Prabakar
For Respondents
For R1 : (Died) steps taken
For R2 to 4 : Mr.C.Sivanesan
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CRP No.1004 of 2019
ORDER
The civil revision petition has been filed to strike off the plaint filed in
O.S.No.96 of 2018 on the file of the II Additional District and Sessions Judge,
Puducherry.
2.The respondent (since deceased) is the plaintiff and the revision
petitioner is the defendant in the suit filed by the respondent in O.S.No.96 of
2018 on the file of the II Additional District and Sessions Judge, Puducherry. The
respondent filed a suit for declaration, recovery of possession, damages and
permanent injunction in respect of the suit property.
3.For the sake of convenience, the parties are referred to as per their
ranking before the trial Court.
4.The case of the plaintiff is that the suit property was owned by the father
of the defendant. The plaintiff and her husband approached the owner of the
property, who happened to be a French national, to purchase the said property.
Accordingly, he agreed to sell the same and he had given a Power of Attorney in
favour of one Ms.Huqo Daxine of Puducherry on 07.10.2005, it was registered
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CRP No.1004 of 2019
vide Doc.No.343 of 2005 in the office of the Sub-Registrar, Vanur, in respect of
the suit property. Thereafter, the power holder executed a Sale Deed dated
28.02.2006 registered vide Doc.No.922 of 2006 in the office of Sub-Registrar,
Puducherry, for a valid sale consideration. Thereafter, the plaintiff obtained patta
and got the other records mutated in her name. Later, the original owner of the
said property was murdered by some miscreants and as a result, FIR was
registered as against the accused persons. In the said FIR, the plaintiff was also
falsely implicated as an accused. After filing charge sheet, the same was taken
cognizance by the trial Court in S.C.No.30 of 2011 on the file of the Court of
Session, Puducherry. Thereafter, the proceedings was quashed by this Court in
Crl.O.P.No.16374 of 2011 by an order dated 29.08.2011. The other accused
persons were also duly acquitted by the Sessions Court, Puducherry, by a
judgment dated 05.02.2014 in SC.No.30 of 2011.
5.The revision petitioner, who is said to be the daughter of the original
owner of the suit property is a stranger to the respondent and after demise of her
father, she came to India and participated in the funeral ceremony of her father.
Further, she is also well aware that the plaintiff herein was arrayed as one of the
accused in the above said SC.No.30 of 2011. At the time, she has not whispered
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CRP No.1004 of 2019
anything about the alleged forgery of sale deed. In fact, after attending the funeral
ceremony of her father she flew away to France and settled over there.
Thereafter, with the connivance of police officials and with a view to grab the
schedule mentioned property, which was purchased by the respondents by paying
a valid sale consideration to her father, she lodged a complaint on 19.06.2017
before the Director General of Police. On the said complaint FIR was registered
in Crime No.101 of 2017 for the offences punishable under Sections 420, 468,
471, 120(B), 392, 294(b), 427, 448, 324, 395, 506(ii) r/w Section 34 and 149 of
IPC, on the file of the Inspector, Grand Bazaar Police Station, Puducherry, on the
allegation that the Power of Attorney was fraudulently executed in favour of said
Ms.Huqo Daxine and thereafter, the Sale Deed was executed in favour of the
plaintiff.
6.Pending FIR, the revision petitioner and the police officials along with
their respective advocates had forcibly taken the respondent herein to the office
of the Sub-Registrar, Puducherry, and made to sign in the already prepared Deed
of Cancellation of Sale Deed in respect of the suit schedule property and no
consideration was paid to the respondent herein. It was forcibly executed by the
respondent on 18.07.2017 registered vide Doc.No.9440 of 2017. The signature
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CRP No.1004 of 2019
of the respondent has been obtained by coercion and force and it would be
manifest that it was prepared without the knowledge of the respondent herein.
Now, the charge sheet has been laid and it is pending in PRC.No.5 of 2018 on
the file of the Judicial Magistrate – III, Puducherry, in which the respondent is
arrayed as an accused along with other accused.
7.Further, in order to prove the forgery in respect of the Power of Attorney
dated 07.10.2005 registered vide Doc.No.343 of 2005, the defendant never
produced any iota of evidence to the effect. Therefore, the entire allegation made
in the complaint are false and baseless. The revision petitioner also failed to
question the Sale Deed from year 2009 to 2017 while she visited India.
Therefore, the Deed of Cancellation of Sale Deed dated 07.07.2017 has been
made by illegal means with severe lapse of procedures, by-passing the laws and
by force and co-ercion. After registration of FIR, the respondent and her husband
filed a petition for anticipatory bail before this Court in Crl.O.P.No.5312 of 2018
in which they had given an undertaking affidavit stating that “they will not
reclaim the suit property in future”. It was executed only because of the
Cancellation Deed dated 07.07.2017 executed by the respondent herein by force.
Hence the respondent filed the suit for following reliefs;
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CRP No.1004 of 2019
“ a) that the Deed of Cancellation of Sale
Deed dated 07.07.2017 executed by the plaintiff in
favour of the defendant herein, registered as
document No.9440 of 2018 on 18.07.2017 in the
office of the Sub-Registrar, Puducherry, cancelled
as the same was made to be executed by the plaintiff
by coercion and threat under the guise of criminal
prosecution.
b) directing the Defendant to vacate &
handover the possession of Schedule of property in
suit to this plaintiff as the condition when forcibly
taken by the defendant and in consequence thereof,
c) to direct the Defendants to pay a sum of
Rs.2,00,000/- per month as damages &
compensation for use & occupation of schedule
property in suit from the date of filing this Plaint
(i.e., 28.06.2018) to until she vacating and handing
over possession of suit property to Plaintiff,
d) to grant permanent restraining the
defendant or her men, agents, subordinates and any
other person from alienating the petition mentioned
property pursuant to the deed of cancellation dated
07.07.2017 registered as document No.9440 of 2017
in the office of the Sub Registrar, Puducherry.
e) directing the defendants to pay the costs of
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CRP No.1004 of 2019
this suit and
f) pass such further or other orders as this
Hon'ble Court may deem fit and proper in the
circumstances of the case.”
8.The learned counsel for the respondent herein would submit that only
after registration of FIR, she was forcibly evicted from the suit property. In fact,
the respondent filed an undertaking affidavit before this Court without prejudice
to her right to agitate before the appropriate Court. Mere execution of
undertaking affidavit would not confer any title over the property in favour of the
petitioner herein since the cancellation of Sale Deed was executed under
coercion and compulsion. The Sale Deed was executed in favour of the
respondent herein on receipt of a valid sale consideration by the original owner
of the suit property.
9. He would further submit that in fact, the original owner of the property
was alive when the Power of Attorney was duly executed by him and also when
subsequently the Sale Deed was executed in favour of the respondent herein in
the year 2006. Thereafter, he was murdered by miscreants and the case filed
against the main accused itself ended in acquittal. The entire plaint cannot be
struck off since it contains bundle of facts and laws and it has to be gone into in a
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CRP No.1004 of 2019
full fledged trial. Further, the revision petitioner ought to have approached the
Court below for rejection of plaint instead of approaching this Court under
Article 227 of Constitution of India.
10.On perusal of records revealed that the suit property was owned by the
father of the revision petitioner. While he was alive, a Sale Deed was executed in
favour of the respondent herein through his Power of Attorney. The Power of
Attorney was executed on 07.10.20005 in favour of Ms.Huqo Daxine registered
vide Doc.No.343 of 2005. The power holder executed a registered Sale Deed
dated 28.02.2006 in favour of the respondent herein registered vide Doc.No.922
of 2006. Thereafter, the original owner of the property was murdered in which
the respondent and her husband were arrayed as accused. In the murder case,
FIR was registered in Crime No.209 of 2006 for the offence under Section 302 of
IPC. After completion of investigation, the Investigating Officer filed a final
report and the same has been taken cognizance by the trial Court in S.C.No.30 of
2011. Pending the trial, the respondent herein filed a quash petition before this
Court in Crl.O.P.No.16374 of 2011 and the same was allowed by an order dated
29.08.2011. That apart, the other accused persons were also acquitted by the trial
Court, by a judgment dated 05.02.2014.
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11.The revision petitioner lodged a complaint and the same has been
registered in Crime No.101 of 2017 for the offence under Sections 420, 468, 471,
120(B), 392, 294(b), 427, 448, 324, 395, 506(ii) r/w Section 34 and 149 of IPC
against the respondent and her husband along with other accused persons.
Pending investigation, the respondent herein filed a petition for anticipatory bail
before this Court in Crl.O.P.No.5312 of 2018. The allegations in the FIR are that
the respondent and other accused persons created forged documents for grabbing
the suit property.
12.Admittedly, the revision petitioner is a French national and came to
Chennai. Her father was a retired Military man from the French Government.
After his retirement, he settled in Puducherry and he owned some properties
including the suit property. While being so, he was brutally murdered on
29.09.2006 by the second respondent and his associates. In that regard a murder
case was registered in Crime No.209 of 2006 against the respondent and her
husband. At the time of death of her father, the revision petitioner was in France,
and she came down to Puducherry and performed her father's funeral ceremony
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and left to France after locking the property. In the meanwhile, the respondent's
husband and the power holder fabricated the Power of Attorney as if her father
executed the said Power of Attorney and the same was registered vide
Doc.No.922 of 2006 on 28.02.2006. Thereafter, the power holder executed a
Sale Deed in respect of the suit property in favour of the respondent herein. In
the murder case, when it was pending for trial, the respondent filed an application
for anticipatory bail before this Court on the ground that she has nothing to do
with the offence under Section 302 IPC and her husband had given a sum of Rs.5
lakhs to Destin and Huqo Daxin, the power holder, only as hand loan, in turn as
security to the said loan, her husband had obtained Sale Deed registered vide
Doc.No.922 of 2006 on 28.02.2006.
13.Based on the statement and also the confession statement of other
accused persons, this Court quashed the proceedings as against the plaintiff.
Thereafter, again the respondent herein and other accused persons attempted to
alienate the suit property. In fact, the fifth accused in Crime No.101 of 2017 has
broke open the lock of the suit property and had illegally trespassed into the suit
property and had taken jewels and other articles. Hence the revision petitioner
lodged a complaint and the same was registered in Crime No.101 of 2017.
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14.In order to settle the issues, the respondent herein voluntarily come
down and executed the cancellation of Sale Deed in favour of the revision
petitioner and the same was also registered vide Doc.No.9440 of 2017 on
18.07.2017. Pending investigation, she also filed a petition for anticipatory bail
before this Court along with her husband in Crl.O.P.No.5312 of 2018 in which,
she along with her husband filed an undertaking affidavit as follows;-
“ 1. I am the 2nd petitioner herein and 3rd
accused in the above Crime No.101 of 2017 and I
am well acquainted with facts and circumstances of
the case. I am filing this affidavit of undertaking for
myself and also on behalf of my husband 1st
petitioner herein and 2nd accused.
2. I have filed the above Crl.O.P., seeking
anticipatory bail for myself and for my husband
accused No.2 in the event of arrest. I further submit
that the intervenor/defacto complainant had alleged
in Crl.M.P.No.9018 of 2018 in Crl.O.P.No.16727 of
2018, stating that we would not interfere with the
peaceful and enjoyment of the land and property by
the defacto complainant as directed by this Hon'ble
Court in Crl.O.P.No.5312 of 2018.
3. I further submit that I executed a
cancellation deed on 07.07.2017 in favour of the
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defacto complainant, in spite of that it was alleged
that myself and my husband are disturbing the
possession and enjoyment by her. Hence, sought an
undertaking in this regard.
4. I further submit that in spite of investigation
is over and charge sheet was filed on 21.02.2018
itself, the defacto complainant insisted an
undertaking. Now to prove my bonafides and also my
commitment to my sincerity I am filing this affidavit
of undertaking that we will not interfere in the
possession and enjoyment of the subject property
without prejudice to may rights under law.”
15.After considering the undertaking affidavit filed by her, this Court
granted anticipatory bail, by an order dated 12.07.2018. While granting
anticipatory bail, this Court recorded their undertaking affidavit that the
respondent shall strictly abide by the terms of the undertaking affidavit. On the
one hand she filed an undertaking affidavit before this Court and on other hand
she filed a suit in O.S.No.96 of 2018 on the file of the II Additional District and
Sessions Court, Puducherry for the above said reliefs. Therefore, it is nothing but
a clear abuse of process of law and the plaint itself cannot be sustained. Though,
the revision petitioner, without exhausting the remedy under Order VII Rule 1 of
CPC, has approached this Court by way of this civil revision petition under
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Article 227 of Constitution of India. This Court can very well exercise its power
under Article 227 of Constitution of India, when there is clear abuse of process
of law. It is evident from the facts narrated above that the present suit is nothing
but a clear abuse of process of law and it is liable to be struck off by this Court.
16.Accordingly, the civil revision petition stands allowed. The plaint in
O.S.No.96 of 2018 is hereby struck off. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
09.01.2023
(2/2)
Speaking/Non-speaking order
Index : Yes/No
ata
To
1.The II Additional District and Sessions Court,
Puducherry.
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CRP No.1004 of 2019
G.K.ILANTHIRAIYAN.J,
ata
CRP.No.1004 of 2019
09.01.2023
(2/2)
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