Madras High Court
Appandai Nainar vs V.P.N.Babu on 1 July, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2024
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
C.M.A.No.3490 of 2014:
Appandai Nainar ... Appellant
Vs.
1.V.P.N.Babu
2.Pasvanatha Nainar (Died)
3.Rajakumari
4.Appadurai
5.Duraisamy
6.Mohan
(R3 to R6 brought on record as LRs
of the deceased R2 vide Court Order
dated 04.10.2021 made in C.M.P.No.16732 of 2021
in C.M.A.No.3490 of 2021) ... Respondents
PRAYER: Civil Miscellaneous Appeals filed under Order 43 Rule 1 of
C.P.C. against the order passed by the learned Principal District Court,
Villupuram dated 06.01.2014 passed in I.A.No.295 of 2013 in I.A.No.288
of 2007 in O.S.No.59 of 2006.
For Appellant : Mr.J.Bharathiraja
1/12
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
For Respondents : Ms.Chithrasampath
Senior Counsel
for Mr.S.A.Thiyagarajan
for R1
R2 - Died
R3 to R6 - No Appearance
C.M.A.No.3501 of 2014:
Parswanatha Nainar (Died)
2.Rajakumari
3.Appadurai
4.Duraisamy
5.Mohan
(Appellant Nos.2 to 5 brought on records as LRs
of the deceased sole appellant vide
Court order dated 03.09.2021 made in
C.M.P.No.2573 of 2021 in C.M.A.No.3501 of 2014) ... Appellants
Vs.
1.V.P.N.Babu ... Respondent
PRAYER: Civil Miscellaneous Appeals filed under Order 43 Rule 1 of
C.P.C. against the order passed by the learned Principal District Court,
Villupuram dated 06.01.2014 passed in I.A.No.295 of 2013 in O.S.No.59 of
2006.
For Appellants : Mr.R.Thirugnanam
For Respondent : Ms.Chithrasampath
Senior Counsel
for Mr.S.A.Thiyagarajan
2/12
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
C.R.P.No.4562 of 2014:
Parswanatha Nainar (Died)
2.Rajakumari
3.Appadurai
4.Duraisamy
5.Mohan
(Appellant Nos.2 to 5 brought on records as LRs
of the deceased sole appellant vide
Court order dated 09.06.2023 made in
C.M.P.No.2147 of 2021 in C.R.P.No.4562 of 2014) ... Appellants
Vs.
1.Sivasubramanian
2.Sivasankar
3.Balamurugan ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India against the order and decreetal order dated 06.01.2014
made in I.A.No.296 of 2013 in O.S.No.59 of 2006 on the file of the
Principal District Court, Villupuram.
For Appellants : Mr.R.Thirugnanam
For Respondents : No Appearance
COMMON JUDGMENT
C.M.A.No.3501 of 2014 has been filed by the plaintiff in O.S.No.59
of 2006 on the file of the Principal District Court, Villupuram, challenging
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
the order dated 06.01.2014 passed by the said Court in I.A.No.295 of 2013
in O.S.No.59 of 2006. I.A.No.295 of 2013 in O.S.No.59 of 2006 was filed
by the second defendant, seeking to review the order passed by the Principal
District Court, Villupuram dated 08.12.2009 passed in I.A.No.288 of 2007.
By the said order, the plaintiff was directed to pay the deficit Court fee and
was given a direction to represent the plaint within a stipulated time.
Thereafter, the second defendant filed I.A.No.295 of 2013 in O.S.No.59 of
2006, seeking to review the order of the Court passed by the Trial Court in
I.A.No.288 of 2007. Under the impugned order dated 06.01.2014 passed in
I.A.No.295 of 2013 in O.S.No.59 of 2006, the Trial Court allowed the
review application filed by the second defendant by giving the following
reasons:
a) The Court fees, stamp papers were removed by the plaintiff and
fresh green sheets had been inserted and stitched together with newly typed
matters and the plaintiffs have amended the reliefs without leave of the
Court by seeking for the relief of partition and separate possession despite
the fact that the original suit was filed only for a bare injunction;
b) The plaintiff had re-presented the plaint without signature of the
plaintiff in the verification column;
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
c) The plaintiff had committed a deliberate fraud upon the Court and
the same is nothing short of abuse of process of Court that while
representing the plaint, the stamp papers which bore the seal of Sub Court,
Tindivanam and District Munsif Court, Gingee had been removed and the
fees stamps bearing the seal of the year 2006 had been stitched together with
insertion of new green sheets with typed matters seeking the relief of
partition and separate possession and that too without the signature of the
plaintiff in the verification column;
d) A person who seeks the relief of the Court must come to the Court
with clean hands. But, while re-presenting the plaint which was subjected to
return by District Munsif Court, Gingee in O.S.No.570 of 1995, the plaintiff
has not come forward to pay Court fees on the suit valuation of
Rs.82,27,685/- despite the order passed by the High Court of Madras in
C.R.P.No.1724 of 2004;
e) The relief of partition and separate possession have been sought for
by the plaintiff without the leave of the Court by filing an amendment
application.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
2. Aggrieved by the order dated 06.01.2014 passed by the Principal
District Court, Villupuram, I.A.No.295 of 2013 in O.S.No.59 of 2006
allowing the review application and consequential order rejecting the plaint
filed by the plaintiff, the plaintiff has filed C.M.A.No.3501 of 2014.
3. C.M.A.No.3490 of2014 has been filed by the eighteenth defendant
in the suit O.S.No.59 of 2006. Since he is sailing with the plaintiff in the
suit, he has also challenged a similar order dated 06.01.2014 passed by the
very same Court in I.A.No.295 of 2013.
4. C.R.P.No.4562 of 2014 has been filed by the plaintiff. He has
challenged the separate order passed by the very same Court dated
06.01.2014 passed in I.A.No.296 of 2013. Under the said order, consequent
to the order dated 06.01.2014 passed in I.A.No.295 of 2013 wherein the
review application was allowed and on an application filed by the second
defendant, the Trial Court has ordered for striking off the plaint from the file
of the Court and return the same to the plaintiff for seeking appropriate
remedies before the appropriate forum.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
5. Since the issues involved in C.M.A.Nos.3490 and 3501 of 2014
and C.R.P.No.6562 of 2014 are one and the same, they are disposed of by a
common order.
6. At the outset, the learned Senior counsel appearing for the
respondents would submit that the present appeals are not maintainable for
the following reason:
a) Under the impugned orders, the plaint has been rejected. Therefore,
a regular first appeal will have to be filed and the plaintiff will have to pay
the Court fees for the same.
7. However, the learned counsel for the appellant would submit that
since the review application has been allowed by the Trial Court which is
challenged in these appeals, the present appeals are maintainable. He would
rely upon Order XLI Rule 1 (w) of C.P.C.
8. However, the learned Senior Counsel appearing for the respondents
would submit that since under the impugned orders, rejection of plaint has
been ordered, necessarily, the present appeals are not maintainable and
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
regular first appeals will have to be filed by the plaintiff by paying the
requisite Court fees.
9. The learned counsel for the appellant, also relies upon a decision of
the Himachal Pradesh High Court in the case of Kuldip Chand and Others
Vs. Shiv Ram and Another reported in AIR 2000 Himachal Pradesh 119.
However, as seen from the said decision, the facts and circumstances are
different from the facts and circumstance of the present case. In the case on
hand, as observed by the Trial Court as well as by the High Court under the
impugned order, it is an admitted fact that the plaintiff had amended the
plaint while re-presenting the plaint before the appropriate forum without
seeking leave of the Court and had also amended the plaint prayers by
including the relief of partition and separate possession despite the fact that
original suit was filed only for bare injunction.
10. However, in the decision relied upon by the learned counsel for
the appellant, it was a regular case where a review application was allowed
and only in the said circumstances, the appeal was held to be maintainable
as per Order XLI Rule 1 (w) of C.P.C. relied upon by the learned counsel for
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
the appellant. Therefore, the said decision has no applicability to the facts
and circumstances of the case considering the observations recorded by the
Trial Court under the impugned order which has been extracted by this
Court in the opening part of this order.
11. The learned counsel for the appellant had also relied upon a
judgment of the Honourable Supreme Court in the case of Hanamanthappa
and Another Vs. Chandrashekharappa and Others reported in AIR 1997
SC 1307 for the purpose of his contention that there is no requirement for
the plaintiff to seek leave of the Court for amending the suit prayers
pursuant to directions issued by this Court to re-present the plaint before
the appropriate forum. However, as seen from the said decision relied upon
by the learned counsel for the appellant, only the averments were altered and
not the original reliefs. But, in the instant case, not alone the averments in
the plaint but also the suit prayers have been amended by the plaintiff
without seeking leave of the Court. Therefore, the decision relied upon by
the learned counsel for the appellant reported in AIR 1997 SC 1307 is also
not applicable to the facts of the instant case.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
12. The order dated 06.01.2014 passed in I.A.No.296 of 2013 in the
application filed by the defendant Nos.33 to 35 in the suit is a consequential
order passed by the Trial Court pursuant to the order dated 06.01.2014
passed in I.A.No.296 of 2013, wherein, the review application filed by the
second defendant came to be allowed. In the consequential order dated
06.01.2014 passed in I.A.No.296 of 20133, the Trial Court has ordered for
striking off the plaint and returning the plaint to the plaintiff for seeking
appropriate remedy before the appropriate forum.
13. Striking off the plaint is only a consequential order pursuant to the
allowing of the review application, I.A.No.296 of 2013 dated 06.01.2014
wherein apart from allowing the review application, the Trial Court had
directed rejection of plaint under Order VII Rule 11 of C.P.C. Admittedly,
till date, no regular first appeals have been filed by the plaintiff, aggrieved by
the order for rejection of plaint passed by the Trial Court dated 06.01.2014
passed in I.A.No.296 of 2013 which order was passed along with allowing
of the application filed by the second defendant, seeking for review of the
earlier order passed by the Trial Court directing the plaintiff to re-present the
plaint before the appropriate Court by paying the requisite Court fees. The
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
observations recorded by the Trial Court under the impugned order with
regard to the conduct of the plaintiff is not in dispute as admittedly without
seeking the leave of the Court, the plaintiff has re-presented the plaint
seeking for new prayers though the original prayer was only for a bare
injunction. The findings with regard to the conduct of the plaintiff in these
appeals have not been challenged.
14. The learned Senior Counsel appearing for the respondents also
drew the attention of this Court to a judgment of this Court in the case of
Govindarajan Padayatchi Vs. Premananda Vijayakumar and Others
reported in 2013 (6) CTC 467 and would submit by relying upon the said
decision, that any order passed in any I.A., seeking for rejection of plaint
will amount to order disposing the suit and only a regular first appeal is
maintainable. This Court is in agreement with the view taken by another
learned Single Judge of this Court in the aforesaid decision.
15. For the foregoing reasons, both the C.M.As. as well as the C.R.P.
does not deserve any merit and the same will have to be dismissed.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
ABDUL QUDDHOSE. J.,
ab
16. Accordingly, C.M.A.Nos.3490 and 3501 of 2014 and
C.R.P.No.4562 of 2014 are dismissed. No Costs.
01.07.2024
Index : Yes/No
Speaking Order : Yes / No
Neutral Citation Case: Yes / No
ab
To
1. The Principal District Court, Villupuram.
2. The Section officer, Record Section, High Court of Madras.
C.M.A.Nos.3490 and 3501 of 2014 and 4562 of 2014
https://www.mhc.tn.gov.in/judis
