Madras High Court
Subbaiah vs Pandivel .. 1St on 29 January, 2025
C.R.P.(PD)(MD) No.2997 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 22.01.2025
Pronounced on 29.01.2025
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) No. 2997 of 2024 and
CMP(MD).No.17135 of 2024
Subbaiah ... Petitioner / 1st defendant
Vs.
1.Pandivel .. 1st respondent / plaintiff
2.Periyanayagi
3.Kunjaram
4.Pandi Visalakshi .. Respondents / defendants
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India to strike off the plaint filed in O.S.No.18 of 2014 on the file of
the District Court, Sivagangai.
For Petitioner : Mr. R.Balakrishnan
For R1 : Mr.N.S.Karthikeyan
For R2 Mr.N.Dilipkumar
For R3 Mr.J.Anandkumar
For R4 Mr.K.Vigneshkumar
*****
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Page No. 1 of 6
C.R.P.(PD)(MD) No.2997 of 2024
ORDER
The present revision is preferred to strike off the plaint in O.S.No.
18 of 2024 on the file of the District Court, Sivagangai.
2. The 1st respondent as plaintiff filed the above suit in O.S.No.18
of 2024 on the file of the District Court, Sivagangai for partition claiming
½ share in the “A” schedule property and 1/5th share in “B” and “C”
schedule property. While so, the revision petitioner herein / defendant
filed the present revision to strike off the plaint stating that the properties
originally belonged to his father Murugesan Ambalam, who had two
wives viz., Visalakshi and Asalambigai. Through the first wife Visalakshi,
the said Murugesan Ambalam had three children viz., Periyanayagi,
Subbaiah, Kunjaram. After the demise of said Visalakshi, Murugesan
Ambalam married one Asalambigai. Through the said Asalambigai,
Murugesan Ambalam had two children viz., Pandi Visalakshi and
Pandivel. It is submitted that the said mother Vishalakshi was born to a
wealthy family and she had one brother alone. It is submitted that the said
Visalakshi was gifted with landed properties and gold jewels by her father
and with the aid of the said properties, the mother Visalakshi purchased
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C.R.P.(PD)(MD) No.2997 of 2024
the properties in her name. It is further submitted that the father of
Visalakshi also purchased the properties in the name of Murugesan
Ambalam for the welfare of Visalakshi. While so, suppressing of the
above facts the 2nd respondent Periyanayaki filed the suit in O.S.No.12 of
2005 on the file of the Sub Court, Devakottai seeking for partition
claiming 1/15th share in the properties mentioned in the above suit. In the
above suit, the properties mentioned in the present suit also found place.
The parties and properties in both the suits are one and the same.
However, the said suit in O.S.No.12 of 2005 was dismissed by the trial
Court after full pledged trial on the ground of partial partition. Against
which no appeal was preferred. Therefore, the decree passed in the said
suit in O.S.No.12 of 2005 became final. While so in order to harass the
revision petitioner / defendant, the present suit is filed by the first
respondent / plaintiff before the District Court, Sivagangai seeking for the
relief of partition. In the present suit also the first respondent / plaintiff
had not chosen to rectify the mistakes pointed out in the earlier suit in
O.S.No.12 of 2005. Therefore, without including all the joint family
properties, the present suit for partition is not maintainable. Further, no
cause of action arose for filing the present suit and therefore, if the suit is
allowed to be proceeded it would lead to abuse of process of Court and
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C.R.P.(PD)(MD) No.2997 of 2024
therefore, liable to be struck off.
3. On the other hand, the learned counsel appearing for the 1st
respondent / plaintiff would submit that the plea of rejection of plaint is
beyond the scope of the Order 7 Rule 11(d) CPC and the Court is bound
to refer the copies of pleadings, issues and Judgment of the former suit
while adjudicating the plea of resjudicata and then issues to be framed and
therefore, the present suit cannot be thrown out at the threshold without
adjudication. He would further submit that unless there is any miscarriage
of justice, Article 227 of the Constitution of India can be invoked. The
petitioner ought to have filed an application for rejection of the plaint
before the trial Court instead of filing the present Civil Revision Petition
to strike off the plaint and therefore, prays for dismissing the revision
petition as devoid of merits.
4. Heard. Records perused.
5. On perusal of support affidavit of the revision petitioner it is
bereft of details with regard to miscarriage of justice and abuse of process
of law. The petitioner ought to have approached the trial Court filing an
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C.R.P.(PD)(MD) No.2997 of 2024
application under Order 7 Rule 11 CPC for rejection of the plaint.
Therefore, in this circumstances, the revision petitioner is directed to file
necessary application for rejection of plaint before the trial Court. The
trial Court shall consider the said application on its own merits and in
accordance with law.
6. With the above observation, this Civil Revision Petition is
disposed of. No costs. Consequently, the connected Miscellaneous
Petition is closed.
29.01.2025
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
trp
Copy To:
The District Court, Sivagangai.
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C.R.P.(PD)(MD) No.2997 of 2024
K.GOVINDARAJAN THILAKAVADI, J.
trp
Pre-Delivery Order made in
C.R.P.(MD) No. 2997 of 2024 and
29.01.2025
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