Madras High Court
Evangelical Literature Service vs The Property Association Of Baptist on 2 August, 2024
C.R.P. No.3520 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2024
CORAM
THE HONOURABLE Mr. JUSTICE P.DHANABAL
CRP. No.3520 of 2022
and C.M.P. No.18729 of 2022
Evangelical Literature Service
represented by its General Secretary ...Petitioner / Defendant /
Petitioner.
Vs.
The Property Association of Baptist
Churches Pvt. Ltd.,
represented by its President
Rev. J.M. Franklin S/o. Late Joseph ...... Respondent
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution
of India to set aside the fair and decreetal order dated 17.08.2022 passed in
I.A. No.5 of 2020 in O.S. No.5573 of 2019 on the file of the XIX Assistant
City Civil Court, Chennai.
For Petitioner : Mr. Ravi Kumar Paul,
Senior Advocate.
For Respondent : No appearance.
ORDER
The Civil Revision Petition is filed as against the order passed in I.A.
No.5 of 2020 in O.S. No.5573 of 2019, wherein this petitioner has filed a
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petition to reject the plaint under Order VII Rule 11 of Code of Civil
Procedure and the same was dismissed. Against which, the present civil
revision petition is filed.
2. The petitioner is the defendant in the main Suit and the respondent
has filed the main Suit for the relief of mandatory injunction as against the
petitioner herein. According to the petitioner, the Plaintiff, in the plaint itself,
pleaded that the Plaintiff decided to direct the defendant to vacate the Suit
property and the same was also communicated to the defendant on
04.01.2001. Thereafter, the Plaintiff refused to extend the license in favour of
the defendant. The said Suit is filed after 19 years from the date of refusal to
extend the license. Therefore, the Suit is barred by limitation.
3. The learned counsel appearing for the petitioner would contend that
the petitioner is the defendant in the main Suit and the license was granted to
him for the purpose of using the property for constructing buildings for
office-cum-residential purpose . In the said license, it has been stated that the
defendant has paid a sum of Rs.1 lakh towards capital payment and a token
license fee of Rs.1 per annum payable to the Plaintiff. As per the terms of the
license, as long as the licensee used the property for its own use as mentioned
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above or the assignee used it for its own purpose, the licensee shall not be
evicted and if the licensee observes all the covenants herein contained, the
license shall not be liable to be revoked. While so, the respondent filed a Suit
for eviction and for recovery of possession and the Suit is barred by limitation
under Article 65 and 66 of Limitation Act. The prayer of mandatory
injunction for delivery of possession is not maintainable in view of Section 60
of Easements Act. The Suit has been filed by the President of the respondent,
who has no authority to file the above Suit as per the Articles of Association
of the respondent / Plaintiff company as only the Secretary has the right to sue
or defend the cases on behalf of the respondent. There is no cause of action
for the respondent / Plaintiff to file this Suit. Therefore, before the Trial
Court, he filed a petition to reject the plaint and the same was dismissed. The
Trial Court failed to consider the scope of Order VII Rule 11 of Code of Civil
Procedure and dismissed the petition. Therefore, the order passed by the Trial
Court is liable to be set aside.
4. In support of his contention, the learned counsel appearing for the
petitioner has relied upon the following judgments:
(i) Raghwendra Sharan Singh vs. Ram Prasanna Singh (dead) by
legal representatives reported in (2020) 16 Supreme Court Cases 601.
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(ii) N.V. Srinivasa Murthy and Others vs. Mariyamma (Dead) by
Proposed LRs and others reported in (2005) 5 Supreme Court Cases 548
(iii) Solaiammal (died) and another vs. Rajarathinam and Five
Others reported in 2003 (4) CTC 268.
5. On the side of respondent, no representation. Though the learned
counsel appeared earlier, not come forward to argue the matter. Therefore,
this Court heard the petitioner's side and perused all the materials available on
record and passed orders.
6. In this case, the petitioner has filed petition before the Trial Court
for rejection of Plaint and the same was dismissed. Before the Trial Court, he
filed the petition on the ground of 'barred by limitation' and there is no cause
of action and the Trial Court after hearing both sides, dismissed the petition
for the reason that cause of action is a bundle of facts which gives right to the
Plaintiff to sue. On reading of the entire Plaint in whole, it is evident that the
averments thereon spells out cause of action for the Suit. As far as limitation
is concerned, the Trial Court held that since the license was cancelled, Suit is
filed within the limitation and the same can be adjudicated only after
conclusion of trial. Therefore, the Trial Court has passed the said order after
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referring the pleadings pleaded in the Suit.
7. This Court also perused the entire records and the affidavit filed by
the petitioner before the Trial Court. Before the Trial Court, the petitioner
has stated that the Suit is barred by limitation and there is no reference as to
how the Suit is barred by limitation and not even mentioned about the dates in
the pleadings as to the date of limitation accrues. On perusal of Plaint, it
reveals that the respondent pleaded in the Plaint that they decided to evict the
defendant on 04.01.2001 and thereafter, Management Committee meeting was
held on 31.07.2001 reiterating the earlier stand of the Plaintiff by refusing to
extend the license agreement in favour of the defendant and thereafter they
pleaded that the defendant attempted to alienate the suit property and
demanded the Plaintiff to execute a conveyance in favour of the defendant
and thereafter, on 25.09.2007, the Plaintiff revoked the license in favour of
the defendant. The Plaintiff filed the Suit only for mandatory injunction, but
in the Plaint prayer, it is stated that for recovery of possession, the Court fee is
also paid under Section 27(c) of the Tamil Nadu Court Fees and Suits
Valuation Act, 1955. Therefore, these aspects have to be decided by the Trial
Court after elaborate trial and at this stage, the claim of the petitioner cannot
be decided through Order VII Rule 11 of Code of Civil Procedure.
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8. As far as limitation is concerned, it is mixed question of law and
facts and it can be decided after elaborate trial. As far as cause of action is
concerned, the Plaint disclosed some cause of action and genuinety of the
cause of action can be decided only after full trial. Therefore, the order
passed by the Trial Court by declining to entertain the petition of the
petitioner filed for rejection of plaint is perfectly correct and there is no
perversity or infirmity found in the order passed by the Trial Court.
9. The learned counsel appearing for the petitioner has produced
following judgments:
(i) Raghwendra Sharan Singh vs. Ram Prasanna Singh (dead) by
legal representatives reported in (2020) 16 Supreme Court Cases 601.
(ii) N.V. Srinivasa Murthy and Others vs. Mariyamma (Dead) by
Proposed LRs and others reported in (2005) 5 Supreme Court Cases 548
(iii) Solaiammal (died) and another vs. Rajarathinam and Five
Others reported in 2003 (4) CTC 268.
On perusal of the above said judgments, they will not be applicable to
the present facts of the case, because in this case, there are some pleadings
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with respect to limitation and cause of action, which can be decided after full
trial.
10. In view of the above discussions, this Court is of the opinion that
the civil revision petition has no merits and deserves to be dismissed.
11. In the result, the civil revision petition is dismissed. No costs.
Consequently, the connected civil miscellaneous petition is closed.
02.08.2024
Index : Yes/No
Speaking order/non-speaking order
mjs
To
The XIX Assistant City Civil Court, Chennai..
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P.DHANABAL, J.,
mjs
02.08.2024
https://www.mhc.tn.gov.in/judis
