Madras High Court
Selvaraj vs Perumal on 10 January, 2023
C.R.P.No.995 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.01.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.995 of 2021 &
C.M.P. No.8010 of 2021
Selvaraj ... Petitioner
Vs.
Perumal ... Respondent
Civil Revision Petition is filed under Article 227 of Constitution of
India to set aside the order dated 25.03.2021 made in I.A.No.49 of 2021 in
O.S.No.88 of 2019 on the file of learned District Munsif cum Judicial
Magistrate, Vikravandi.
For Petitioner : Mr.S.Janarthanan for
Mr.G.Mohanakrishnan
For Respondent : Served – Name Printed
No appearance
ORDER
The present Civil Revision Petition has been filed under Article 227
of Constitution of India to set aside the order dated 25.03.2021 made in
I.A.No.49 of 2021 in O.S.No.88 of 2019 on the file of learned District Munsif
cum Judicial Magistrate, Vikravandi.
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C.R.P.No.995 of 2021
2. The brief facts of the case is as follows:-
(i) The petitioner is the 1st defendant and the respondent is the 5th
plaintiff in the suit in O.S.No.9 of 2014. The said suit was filed for passing
a preliminary decree for partition and possession of the plaintiffs 1 to 7 to
the respective shares of plaintiffs and 1st defendant and to appoint an
advocate commissioner to divide the suit properties into 55/64 shares to
the plaintiffs 1 to 7 and directing the defendant therein to put possession of
their share. Upon considering the pleadings, written statement and
Judgements, the trial court framed the points for consideration and
declared that the 1st plaintiff is entitled to 1/9th share and plaintiffs 2 to 7 are
entitled to 9/64th shares respectively in Item Nos.1 to 4 and dismissed in
respect of item nos.5 to 8 of suit properties.” on 22.09.2017. As against the
same, the respondent, as a 5th plaintiff along with other plaintiffs preferred
A.S.No.51 of 2017 as against the petitioner / 1st defendant and others. The
Appeal Suit was partly decreed on 18.12.2019 by stating that in item
Nos.5,7 and 8 properties, the 1st respondent would be entitled to 1/64 share
and the plaintiffs 2 to 7 are entitled to 9/64 share each and that the appeal
suit was dismissed in respect of 6th item of suit schedule property, thereby
partly allowed the earlier O.S.No.9 of 2014.
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C.R.P.No.995 of 2021
(ii) The respondent herein preferred O.S.No.88 of 2019 as against
the petitioner and the government officials to declare patta no.252 issued in
favour the petitioner on 09.11.2019 as null and void and to grant permanent
injunction restraining the petitioner from interfering with the plaintiff's
peaceful possession and enjoyment over the suit 'B' schedule property.
The written statement was also filed by the petitioner. While the matter is
pending, I.A.No.49 of 2021 was filed by the petitioner to reject the plaint
under Order 7 Rule 11 of CPC and the said petition was dismissed on
25.03.2021. Aggrieved against the same, the present Civil Revision
Petition is filed.
3. The learned counsel for the petitioner would submit that the suit is
hit by the principles of res judicata and the issues involved in the suit has
already been decided in O.S.No.9 of 2014. Further, the suit property has
been included as Item No. 6 in the O.S.No.9 of 2014 and it has been
categorically decided that the said property is not an ancestral property and
therefore, the same cannot be included for partition and even in Appeal ,
the respondent had given their right of appeal in respect of item No.6 of the
suit property. Also, for cancellation of a patta standing in favour of any
person, the aggrieved person is only entitled to file an appeal before the
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C.R.P.No.995 of 2021
Revenue Divisional Officer, instead of exhausting his remedies, the
respondent has filed the suit without any cause of action.
4. Though notice to the sole respondent was served on 08.05.2021,
and name has been printed in the cause list, there is no appearance for the
respondent, either through learned counsel or in-person.
5. Heard the learned counsel for the petitioner and perused the
documents placed on record.
6. It is not in dispute that the respondent, who is the 5th plaintiff has
filed the suit in O.S.No.9 of 2014 for partition and possession of the
plaintiffs 1 to 7 to the respective shares of plaintiffs and 1 st defendant.
Upon considering the pleadings, written statement and Judgements passed
by the Hon'ble Apex Court and other Court, the trial court, on 22.09.2017,
decreed the suit and passed a preliminary decree declaring that the 1st
plaintiff is entitled to 1/9th share and plaintiffs 2 to 7 are entitled to 9/64th
shares respectively in Item Nos.1 to 4 and dismissed in respect of item
nos.5 to 8 of suit properties.”. As against the same, the respondent, as a 5th
plaintiff along with other plaintiffs preferred A.S.No.51 of 2017 as against
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C.R.P.No.995 of 2021
the petitioner / 1st defendant and others. The Appeal Suit was partly
decreed on 18.12.2019 by stating that in item Nos.5,7 and 8 properties, the
1st respondent would be entitled to 1/64 share and the plaintiffs 2 to 7 are
entitled to 9/64 share each and that the appeal suit was dismissed in
respect of 6th item of suit schedule property, thereby partly allowed the
O.S.No.9 of 2014. As against the same, it is reported that the Second
Appeal is pending.
7. It is relevant to note that the respondent herein preferred
O.S.No.88 of 2019 as against the petitioner and the government officials to
declare patta no.252 issued in favour the petitioner on 09.11.2019 as null
and void and to grant permanent injunction restraining the petitioner from
interfering with the respondent's peaceful possession and enjoyment over
the suit 'B' schedule property. The written statement was also filed by the
petitioner. While the matter is pending, I.A.No.49 of 2021 was filed by the
petitioner to reject the plaint under Order 7 Rule 11 of CPC and the said
petition was dismissed on 25.03.2021.
8. On going through the order passed in I.A.No.49 of 2021 it is seen
that before the trial court, though “the respondent / plaintiff has endorsed in
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C.R.P.No.995 of 2021
the appeal stating that the appellant is giving up the item no.6 of suit
property and the suit and appeal may be dismissed as against 6th item,
since it does not belong to the joint family, as such, it is found that the
issue regarding the present suit property has not been decided in the
previously instituted suit, thereby stated that the present suit on hand bears
a different cause of action, and the plea of the plaintiff / defendant that the
suit is barred by res-judicata will not apply to the present case”, thereby the
trial court dismissed the said I.A.
9. In this connection, it is worthwhile to refer the Judgment of the
Hon'ble Supreme Court reported in Civil Appeal No. 4665 of 2021
arising out of SLP (C) No.3899 of 2021 [Srihari Hanumandas Totala vs
Hemant Vithal Kamat] on 9 August, 2021 wherein among other things, the
court referred to the earlier decisions including in Saleem Bhai Vs. State
of Maharashtra, Church of Christ Charitable Trust (supra), stated that
“At that stage, the pleas taken by the defendant in the
written statement are wholly irrelevant and the matter is to be
decided only on the plaint averment. These principles have
been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh
Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel
M.V. Fortune Express, (2006) 3 SCC 100.” 20 On a perusal of
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C.R.P.No.995 of 2021
the above authorities, the guiding principles for deciding an
application under Order 7 Rule 11(d) can be summarized as
follows:
(i) To reject a plaint on the ground that the suit is barred by any
law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the defendant in the suit must not be
considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is
necessary that (i) the ‘previous suit’ is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; (iii) the former suit was between the same
parties or parties through whom they claim, litigating under the
same title; and (iv) that these issues were adjudicated and
finally decided by a court competent to try the subsequent suit;
and
(iv) Since an adjudication of the plea of res judicata requires
consideration of the pleadings, issues and decision in the
‘previous suit’, such a plea will be beyond the scope of Order 7
Rule 11 (d), where only the statements in the plaint will have to
be perused.”
10. In the present case, a meaningful reading of the plaint in
O.S.No.88 of 2019 makes it abundantly clear that the respondent prayed to
declare the patta no.252 issued by the 2nd defendant therein in favour of the
1st defendant therein on 09.11.2019 as null and void in respect of 'B'
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C.R.P.No.995 of 2021
schedule property; to grant permanent injunction restraining the 1st
defendant, his men and agents or servants from interfering with the
plaintiff's peaceful possession and enjoyment over the suit 'B' schedule
property, the plaint, on the face of it, does not disclose any fact that may
lead to the conclusion that it deserves to be rejected on the ground that it is
barred by principles of res judicata. The Trial Court was correct in their
approach in holding, that the issue regarding the present suit property has
not been decided in the previously instituted suit. An application under
Order 7 Rule 11 must be decided within the four corners of the plaint. The
Trial court was correct in rejecting the application under order 7 Rule 11 of
CPC.
11. In view of the above, this Court holds that the plaint is not liable
to be rejected under Order 7 Rule 11 of CPC and affirm the findings of the
Trial Court. However, it is made clear that this Court has not expressed any
opinion on whether the subsequent suit is barred by the principles of res
judicata and grants liberty to the petitioner to raise an issue of the
maintainability of the suit before the learned District Munsif cum Judicial
Magistrate, Vikravandi in O.S.No. 88 of 2019.
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C.R.P.No.995 of 2021
In the result, the Civil Revision Petition is dismissed with the above
observations. Consequently, connected miscellaneous petition is closed.
No costs.
10.01.2023
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Order
ssd
To
The District Munsif cum Judicial Magistrate,
Vikravandi.
https://www.mhc.tn.gov.in/judis
C.R.P.No.995 of 2021
V.BHAVANI SUBBAROYAN, J.,
ssd
.
C.R.P.No.995 of 2021 &
C.M.P. No.8010 of 2021
10.01.2023
https://www.mhc.tn.gov.in/judis
