Madras High Court
S.Premanand vs V.Muthu (Alias) V.Veyilmuthu on 6 June, 2025
AS.No.239 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2025
CORAM
THE HONOURABLE MR.JUSTICE M. JOTHIRAMAN
AS.No.239 of 2019
1. S.Premanand
2.K.Harimoorthy
3.V.Suresh Kumar … appellants / plaintiffs
V.
1.V.Muthu (alias) V.Veyilmuthu
2.Kanthamari … respondents / defendants
Prayer : This First Appeal is filed under Section 96 r/w.Order 41
Rule 1 Code of Civil Procedure 1908 against the judgment and decree
dated 18.08.2017 in IA.No.108 of 2017 in OS.No.144 of 2016 on the file
of the III Additional District Judge, Thiruvallur at Poonamallee.
For appellants : Mr.M.V.Seshachari
For Respondents : Mr.D.Ferdinand
JUDGMENT
The unsuccessful plaintiffs have preferred the first appeal against
the order passed in IA.No.108 of 2017 in OS.No.144 of 2016 for
rejection of the plaint in OS.No.144 of 2016. The parties herein are
referred to according to their litigative status before the trial Court.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
2. The plaintiffs - S.Premanand, K.Harimoorthy & V.Suresh
Kumar filed the suit in OS.No.144 of 2016 on the file of the III
Additional District Judge, Thiruvallur at Poonamallee against the
defendants viz., Mr.V.Muthu @ V.Veiyil Muthu and Mrs.Kanthamari.
The suit has been filed for declaration of plaintiff's title to the suit
property and for recovery of vacant possession of the suit property after
ejecting the defendants there from and after removing the superstructure
put up by them over the suit property.
3. The brief case of the plaintiffs is as follows :-
The suit property was originally owned and possessed by the
plaintiff's vendor / Saravanan. The said Saravanan has appointed one
J.Jebasingh as his Power of Attorney agent, as per the power of attorney
deed dated 18.09.1996. The plaintiffs are individually purchased the
undivided 1/3rd share of the suit property under three separate registered
sale deeds dated 11.10.2000.
3(i)The first defendant/V.Muthu @ Veiyil Muthu filed the suit in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
Os.No.311 of 2006 against the power of attorney agent/J.Jebasingh and 4
others seeking for permanent injunction. The plaintiffs/V.Suresh Kumar
and Harimoorthy have filed a suit in OS.No.389 of 2006 against the first
defendant/V.Muthu @ Veiyil Muthu and one Devaraj on the file of the
Principal District Munsif, Poonamallee. Both the suits were tried
together and suit in OS.No.311 of 2006 was decreed in favour of the first
defendant/V.Muthu @ Veiyil Muthu and the suit in OS.No.389 of 2006
was dismissed by the Principal District Munsif, Poonamalee on
29.11.2012. The first defendant/V.Muhtu @ Veiyil Muthu, after disposal
of the suit had executed a registered deed of settlement dated 28.02.2013
in favour of the 2nd defendant/Kanthamari. The first defendant is
claiming title by virtue of the sale deed alleged to have been executed by
E.V.Perumalsamy Reddy through power of agent/Devaraj.
3(ii) The first defendant/V.Muthu @ Veiyil Muthu managed to
obtain patta, pursuant to the sale deed. The plaintiffs alone were in
possession and enjoyment of the suit property, but the Principal District
Munsif Court, Poonamalee took a different view and found that the first
defendant/V.Muthu is in possession and enjoyment of the property and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
therefore decreed the suit in his favour. Since, there is a finding by the
Principal District Munsif, Poonamallee that the first defendant/Muthu @
Veiyil Muthu is in possession of the suit property and since the first
defendant has settled the suit property in favour of the 2nd
defendant/Kanthamani, the plaintiffs are constrained to file the suit
seeking declaration of their title and for recovery of vacant possession.
3(iii)The cause of action for the suit arose on 11.10.2000, when the
plaintiffs purchased the suit property, on 29.11.2012, when the Principal
District Munsif, Poonamalle decreed the suit filed by the first defendant
and dismissed the suit filed by the plaintiffs 2 and 3, thereby gave a
findings that the plaintiffs are out of possession of the suit property.
4. During the pendency of the suit, the defendants have filed an
application under Order 7 Rule 11(a) CPC in IA.No.108 of 2017 in
OS.No.144 of 2016 to reject the plaint in OS.No.144 of 2016.
5. The brief averments stated in the petition in IA.No.108 of 2017
in OS.No.144 of 2016 is as follows :-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
The respondents/plaintiffs stated in their plaint that they had
purchased 1/3rd share of the suit property from Saravanan through his
power of attorney/J.Jebasingh under sale deeds dated 11.10.2000. After
purchase they had put up fencing and they were in possession and
enjoyment of the suit property. Now the present suit has been filed by
the respondents/plaintiffs, since, there is a finding by the Court in the
earlier suit that the first defendant alone is in possession and enjoyment
of the suit property. Based on the earlier findings, the plaintiffs filed the
present suit. Even prior to purchase of the respondents, the first
defendant's vendor/E.V.Perumalsamy Reddy purchased the suit property
through Saravanan through Power of Attorney/Jebasingh under sale deed
dated 31.03.1999. Thereafter, the first defendant purchased the suit
property under sale deed dated 08.06.2006. Ever since, the date of
purchase the first defendant is in possession and enjoyment of the suit
property and fixed cement posts around the suit property. In the year
2006, Jebasingh and others attempted to interfere with the first defendant
possession and enjoyment of the property. Hence, the first defendant
filed OS.No.311 of 2006 for permanent injunction against them. By
suppressing the said suit, the plaintiffs 2 and 3 have filed another suit in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
OS.No.389 of 2006 for permanent injunction against the first defendant.
Both the suits were tried jointly and it is found that the first defendant is
in possession of the suit property even before filing the above said suit.
The plaintiffs did not plead in the plaint in clear terms as to when the
cause of action in the present suit arose, they merely alleged that since
the Court gave findings that the first defendant is in possession of the
property they filed the present suit. If they accept the said findings, they
ought to have prayed the relief of declaration and recovery of possession
in the earlier suit itself. The present suit is hit by Order 2 Rule 2 CPC.
The plaintiffs is bereft of cause of action, since the plaint itself is not
maintainable and the same is to be rejected.
6. In the counter affidavit filed by the plaintiffs, wherein it is stated
that the plaintiffs alone are having valid title to the suit property. The
purchase by the first defendant and subsequently executed settlement
deed in favour of the 2nd defendant are not valid. The plaintiffs contested
the earlier suit on the ground that the possession follows title. The
Principal District Munsif Court, Poonamalle found that the first
defendant is in possession of the suit property and therefore decreed the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
suit. This only gave cause of action for the present plaintiffs to file the
suit seeking declaration of their title and for recovery of vacant
possession. Earlier suit were filed for bare injunction only. The relief
claimed in the earlier suit and in the present suit are entirely different.
There is no need for the plaintiffs to plead as to when the superstructure
was put up in the suit property and when they lost their possession. In
the plaint, it has been stated clearly that dismissal of their earlier suit and
decree passed in favour of the first defendant give raise to cause of
action. The trial Court finds that the cause of action for the previous
suits in OS.No.311 of 2006 and OS.No.389 of 2006 are different from
the cause of action from the present suit and finds that the suit is barred
under Order 2 Rule 2 of CPC is found to be unacceptable.
7. On the side of the defendants, Ex.P1-Certified copy of the
Common Judgment passed in OS.Nos.311 of 2006 and 389 of 2006 by
the Principal District Munsif, Poonamallee has been marked. On the side
of the plaintiffs no documents have been marked. No witness have been
examined on either side.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
Findings of the Trial Court :-
8. The trial Court finds that while deciding the earlier suits, the
Principal District Munsif, Poonamallee had incidentally gone into the
title of the suit property. Since, the suit property in respect of which
permanent injunction was sought for was admittedly a vacant site and
when the defendants established the title to the suit property, then in such
case, the present suit for declaration of title and recovery of possession in
respect of the same suit property is found to be a second round of
litigation. It is also finds that when the permanent injunction to protect
the possession of the first defendant was granted in OS.No.311 of 2006,
then in such case unless the said judgment and decree is set aside a
contra relief for recovery of possession cannot be sought for and also
finds that when the present suit in OS.No.144 of 2016 is nothing but
abuse of process of law and such vexatious litigation cannot be permitted
to consume the time of the Court and found that the plaint is liable to be
rejected. Aggrieved over the same, the plaintiffs have preferred the
present first appeal.
9. The points for determination arises in this appeal is whether the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
petition filed under Order 7 Rule 11(a) of Code of Civil Procedure in
IA.No.108 of 2017 in OS.No,144 of 2016 is to be allowed?
10. The learned counsel appearing for the appellants/plaintiffs
would submit that the earlier suit filed by the appellants/plaintiffs in
OS.No.389 of 2006 is only for the relief of permanent injunction.
Therefore, the same is not a bar for the present suit, seeking relief of
declaration of title and recovery of possession. The appellants/plaintiffs
are not a party to the suit in OS.No.311 of 2006 though they had
purchased the suit property in the year 2000 itself. The suit in
OS.No.311 of 2006 has been filed as against the power of attorney agent
and four others and the suit against the power of attorney agent alone is
not maintainable, when the principle have been disclosed. The learned
counsel would further submit that the decree passed in OS.No.311 of
2006 is not binding upon the appellants/plaintiffs. The trial Court ought
to have seen that in a suit for permanent injunction, the question of title
is decided incidentally and therefore it is not a bar for filing the present
suit. The appellant/plaintiff have not suppressed any fact and duly
disclosed the particulars of the previous suits between the parties in the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
pleadings and also filed the copies of the judgment and decree along with
the plaint.
11. Per contra, the learned counsel for the respondents/defendants
would submit that even prior to purchase of the plaintiffs, the first
defendant's vendor E.V.Perumalsamy Reddy purchased the suit property
from Saravanan through power of attorney/Jebasingh under the
registered sale deed dated 31.03.1999. Thereafter, the first defendant
purchased the suit property from the said E.V.Perumalsamy Reddy
through power of attorney/Devaraj under sale deed dated 08.06.2006. In
the year 2006, the said Jebasingh and others attempted to interfere with
the possession and enjoyment of the first defendant, he has chosen to file
the suit in OS.No.311 of 2006 for permanent injunction against them.
The plaintiffs 2 and 3 had filed another suit in OS.No.389 of 2006
against the first defendant for permanent injunction. The learned counsel
would further submit that both the suits were tried jointly and it was
found that the first defendant is in possession and enjoyment of the suit
property. The plaintiffs did not plead in the plaint in the clear terms as to
when the cause of action arose for the present suit.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
12. This Court has considered the submissions made on either side
and perused the materials available on record.
13. It is seen from the records that the suit property is a vacant site,
further it is seen that the appellants/plaintiffs – V.Suresh Kumar and
Harikumar have already filed the suit in OS.No.389 of 2006 for the relief
of permanent injunction as against the first defendant/Muthu @ Veiyil
Muthu and likewise, the first defendant/Muthu @ Veyil Muthu has filed
the suit in OS.No.311 of 2006 for permanent injunction, with regard to
the present suit schedule property. Further, it is seen from records, as per
the common judgment and decree passed in OS.Nos.311 of 2006 and 389
of 2006 on the file of the Principal District Munsif, Poonamalle, the trial
Court had incidentally gone into the title of the suit property and finds
that the first defendant/Muthu @ Veiyil Muthu is in possession and
enjoyment of the suit property and decreed the suit in OS.No.311 of 2006
against the plaintiff's vendor's power agent one Mr.Jebasingh and others
namely A.Prakash, Dawood, S.Raja and Mani and the suit filed by the
plaintiffs herein in OS.No.389 of 2006 was dismissed vide common
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
judgment dated 29.11.2012.
14. The defendants before the trial Court had filed an application
under Order VII Rule 11(a) of the Code of Civil Procedure for rejection
of the plaint on the ground that it does not show any cause of action. At
this juncture, it is is useful to refer the relevant provision of Code of
Civil Procedure -
“11. Rejection of plaint.-
The plaint shall be rejected in the following
cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) where the relief claimed is properly valued,
but the plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in
the plaint to be barred by any law;
(e) where it is not filed in duplicate;]
(f) where the plaintiff fails to comply with the
provisions of rule 9:]
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless the
Court, for reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an exceptional
nature from correcting the valuation or supplying the
requisite stamp-paper, as the case may be, within the
time fixed by the Court and that refusal to extend such
time would cause grave injustice to the plaintiff.”
15. It is settled proposition that, where the plaint does not disclose
a cause of action, the relief claimed is undervalued and not corrected
within the time allowed by the Court, insufficiently stamped and not
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
rectified within the time fixed by the Court, barred by any law, failed to
enclose the required copies and the plaintiff fail to comply with the
provisions of Rule 9, the Court has no other option except to reject the
same.
16. It is pertinent to mention that power under Order VII, Rule 11
of the Code can be exercised at any stage of the suit either before
registering the plaint or after the issuance of summons to the defendants
or at any time before the conclusion of the trial. This position was
explained by the Hon'ble Apex Court in Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557, in which, while considering Order VII,
Rule 11 of the Code, it was held as under:-
"9. A perusal of Order VII, Rule 11, CPC makes
it clear that the relevant facts which need to be looked
into for deciding an application thereunder are the
averments in the plaint. The trial court can exercise the
power under Order VII, Rule 11 CPC at any stage of
the suit-before registering the plaint or after issuing
summons to the defendant at any time before the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
conclusion of the trial. For the purposes of deciding an
application under clauses (a) and (d) of Rule 11 of
Order VII, CPC, the averments in the plaint are
germane; the pleas taken by the defendant in the
written statement would be wholly irrelevant at that
stage, therefore, a direction to file the written statement
without deciding the application under Order VII, Rule
11, CPC cannot but be procedural irregularity touching
the exercise of jurisdiction by the trial court?."
17. It is also pertinent to mention that it is an apparent that the
plaint cannot be rejected on the basis of the allegations made by the
defendant in his written statement or in an application for rejection of the
plaint. The Court has to read the entire plaint as a whole to find out
whether it discloses a cause of action and if it does, then the plaint cannot
be rejected by the Court exercising the powers under Order VII, Rule 11
of the Code. Essentially, whether the plaint discloses a cause of action,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
is a question of fact which has to be gathered on the basis of the
averments made in the plaint in its entirety taking those averments to be
correct. A cause of action is a bundle of facts which are required to be
proved for obtaining relief and for the said purpose, the material facts are
required to be stated but not the evidence. So long as the plaint discloses
some cause of action which requires determination by the court, mere
fact that in the opinion of the Court, the plaintiff may not succeed cannot
be a ground for rejection of the plaint.
18. In the present case on hand, a perusal of the averments made in
the plaint, discloses the cause of action. The order of the trial Court
dated 18.08.2017 is self contradictory, having held that the cause of
action in the present suit in OS.No.144 of 2016 is different from the
cause of action in the earlier suit in OS.No.389 of 2006. It is not open to
subsequently held that the present suit is relitigation and abuse of process
of law. None of the provisions of Order 7 Rule 11 of CPC had been
made out by the respondents/plaintiffs. The decree of permanent
injunction granted in OS.No.311 of 2006 is not a bar for filing the
present suit for declaration of title and recovery of possession. In the suit
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
for permanent injunction, the question of title has been discussed
incidentally and therefore the same is not bar for filing the present suit.
The appellants/plaintiffs have not suppressed about the previous suits
between the parties in the pleadings and also filed the copies of the
judgment and decree of the earlier suits along with the plaint. There are
merits in this appeal and the judgment and decree passed in IA.No.108 of
2017 in OS.No.144 of 2016 dated 18.08.2017 is liable to be set aside. In
view of the above discussions, this Court is inclined to allow the first
appeal. The point is answered accordingly.
19. In the result, the first appeal is allowed and the judgment and
decree passed in IA.No.108 of 2017 in OS.No.144 of 2016 dated
18.08.2017 on the file of III Additional District Court, Tiruvallur at
Poonamallee is hereby set aside. The III Additional District Court,
Tiruvallur at Poonamallee is hereby directed to re-admit the suit and
proceed in accordance with law.
06.06.2025
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
Speaking Order/Non-Speaking Order
Neutral Citation : Yes/No
tsh
To
1. The III Additional District Judge, Thiruvallur at Poonamallee
2. The Principal District Munsif, Poonamallee
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
M. JOTHIRAMAN, J.
tsh
06.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/06/2025 07:18:52 pm )
