Madras High Court
A.Anbalagan vs N.Subramaniam on 4 January, 2024
C.R.P.No.2270 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.2270 of 2020 and
C.M.P.No.14210 of 2020
1.A.Anbalagan
2.R.Ramanathan
3.S.K.Elangovan
4.V.Karuppannan
T.K.Palaniappan (Died)
5.Chellammal
Selvi (Died)
6.Sakthivel ... Petitioners
Vs.
N.Subramaniam
(Cause title accepted vide order
of Court dt.14.12.2020 made in
CMP.No.13590/2020 in
CRP.SR.No.84186/2020) ...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the fair and final order dated 19.10.2019 made in
I.A.No.3 of 2019 in O.S.No.189 of 2012 on the file of the Principal District
Judge, Salem.
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.No.2270 of 2020
For Petitioners : Mr.K.Duraisami
Senior Counsel
for Mr.A.Muthumani
For Respondent 1 :Mr.V.Sekar
ORDER
The defendants in the suit filed this revision petition challenging the
order passed by the Court below dismissing the petition seeking consideration
of certain issues as preliminary issues.
2. The respondent herein filed a suit seeking declaration that amendment
carried out in Supplement Deed No.5 dated 10.11.2008 removing him from the
post of trustee was null and void and not binding on him. The respondent also
sought for injunction restraining the petitioners/defendants from in any manner
preventing him from participating in the trust activities. He also sought for
mandatory injunction directing the petitioners to allow the 1st respondent to
participate in the trust activities.
3. Earlier, the petitioners filed an application for rejection of the plaint in
I.A.No.41 of 2013 on the ground that the main suit prayer was barred by
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limitation and also on the ground that there was no permission under Section
92 of CPC to file suit and on other aspects. The said application was allowed.
The plaint was rejected by the Trial Court. Aggrieved by the same, the
respondent preferred an appeal in A.S.No.1125 of 2015 before this Court. The
said appeal was allowed by directing the Court below to frame an issue with
regard to the question of limitation, necessity for leave under Section 92 of
CPC and all other aspects. The relevant observation of Hon'ble Division Bench
in the above said judgment reads as follows:
“25. Therefore, we are of the opinion that catena
of decisions relied upon by the learned counsel for the
appellant/plaintiff would show that the suit cannot be
dismissed on the ground that it is barred by limitation.
Taking into consideration the above decisions we are
of the opinion that the present suit could not be
dismissed as barred by limitation without proper
pleadings, framing of an issue of limitation and taking
of evidence. Further, whether the appellant/ plaintiff
has really got knowledge about the Supplement Deed
No.5 only in the year 2010 or earlier is a purely
disputed question of fact and the same can be decided
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only after framing issue and conducting trial. Though
the learned Senior Counsel for the
respondents/defendants submitted that since the
appellant/plaintiff has not obtained leave under
Section 92 of CPC., it is the submission of the learned
counsel for the appellant/plaintiff that in the present
case the appellant/plaintiff is not agitating any public
right and he is only vindicating his personal right.
Therefore, leave is not necessary. However, we are of
the opinion whether the appellant/plaintiff is agitating
public or right personal right also has to be decided
only during the course of trial.
26. Therefore, we are of the considered opinion
that there is infirmity in the order passed by the trial
court in allowing the application under Order 7 Rule
11 CPC, thereby rejecting the plaint. Therefore, we
inclined to set aside the same. Accordingly, the order
and decretal order dated 05.02.2015 in I.A.No.41 of
2013 in O.S.No.189 of 2012 passed by the Principal
District Judge, at Salem is hereby set aside and the
matter is remitted back to the trial Court. The learned
Principal District Judge is directed to conduct trial
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after framing necessary issues with regard to the
limitation and all other aspects and also with regard to
the obtaining of leave under Section 92 of CPC, as well
as all other relevant aspects and after recording the
evidence on either side, dispose of the suit on merits,
within a period of six months from the date of receipt of
copy of this order. No costs. Consequently, M.P.No.1 of
2015 is closed”.
4. A perusal of the judgment passed by the Hon'ble Division Bench in
the appeal filed against the rejection of the plaint would suggest that the
Division Bench held that limitation in this suit is a disputed question of fact
and the same can be decided only after framing of issues and recording of
evidence. The learned Senior Counsel for the petitioners submitted that the
document impugned in the suit was dated 10.11.2008 and admittedly, the suit
had been filed on 17.07.2012 beyond the period of 3 years and therefore, the
suit is hopelessly barred by limitation. In the plaint averment, it was stated by
the respondent/plaintiff that he acquired knowledge about his removal and the
document impugned in the suit only on 12.07.2010. Whether he acquired
knowledge only on 12.07.2010 or acquired knowledge even prior to that is a
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matter to be decided based on the evidence. Therefore, the question of
limitation in this case cannot be decided without recording of evidence. Hence,
I am unable to accept the submissions made by the learned Senior Counsel for
the petitioner with regard to the question of limitation. Even with regard to the
maintainability of the suit without leave under Section 92 of CPC, the Division
Bench, in its order clearly held that the same should also be considered along
with the other issues after recording of evidence. In fact, in its order, the
Division Bench directed the Trial Court to frame necessary issues with regard
to the limitation, question of leave under Section 92 of CPC and all other
aspects and record evidence and dispose of the suit on merits. Therefore, the
petitioners herein have not made out any case for taking up certain issues with
regard to the limitation, maintainability of the suit etc., as a preliminary issue.
5. It is seen from typed set that petitioners/defendants filed written
statement as early as 18.03.2013. In the written statement, the petitioners
vaguely disputed valuation of plaint. On the date of filing of written statement
itself, the petitioners filed I.A.No.41 of 2013 to reject the plaint on the grounds
of limitation and absence of leave under Section 92 of CPC. Though under
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Order 7 Rule 11 of CPC under valued, insufficiently stamped plaint is a ground
to seek rejection of plaint, the petitioner consciously failed to raise any
objection regarding valuation of plaint in petition for rejection of plaint. The
said Order 7 Rule 11 petition was allowed and on appeal filed by
plaintiff/respondent, the said order was set aside by Division Bench of this
Court with direction to Trial Court to decide questions raised by petitioners
herein by recording evidence and dispose of suit on merits within 6 months.
The order of Division Bench was passed on 01.08.2017. After waiting for two
years, the petitioners have come up with present petition on 17.09.2019 raising
very same issues of limitation and maintainability of suit without leave under
Section 92 of CPC. Besides, the petitioners also raised issue of Court fee in this
petition seeking trial of preliminary issues. The petitioners are not entitled to
raise objection in instalments so as to drag on the proceedings. Further, the
maximum court fees payable under Section 28 of Tamil Nadu Court Fees and
Suit Valuation Act is Rs.1000/- and the same has been paid by the petitioners.
Hence, even if the valuation adopted by plaintiff is found to be erroneous and
plaint is under valued, Court fee payable on such new value will remain as
Rs.1000/-. Hence, any decision on value of plaint is not going to affect the
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Court fee payable by respondent/plaintiff. Further, the present suit is filed in
District Court, which is having unlimited pecuniary jurisdiction. Hence, even if
plaint is found to be under valued, the new higher value will not render the
plaint outside the pecuniary jurisdiction of present Court in which suit is filed.
Therefore, the dismissal of the petition filed by petitioners will not cause any
prejudice to them and hence, this Court in it's revisional jurisdiction need not
interfere with the same. As held by Division Bench in it's judgment, cited
supra, all issues including questions relating to valuation can be tried along
with other issues.
6. In view of discussions made earlier, I do not find anything to interfere
with the order passed by the Trial Court and accordingly, the Civil Revision
Petition stands dismissed. Consequently, connected miscellaneous petition is
closed. No costs.
04.01.2024
Index : Yes / No
Internet : Yes / No
nr
https://www.mhc.tn.gov.in/judis
To
The learned Principal District Judge, Salem.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR , J.
nr
CRP.No.2270 of 2020 and
04.01.2024
https://www.mhc.tn.gov.in/judis
