Madras High Court
R.Perumal Naicker vs R.Sakrapani on 26 April, 2013
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.4.2013 CORAM : THE HONOURABLE MR. JUSTICE M.VENUGOPAL C.R.P.(PD)No.1138 of 2011 And M.P.No. 1 of 2011 R.Perumal Naicker ... Petitioner/1st Defendant Vs. 1. R.Sakrapani ... Respondent/Plaintiff 2. The Managing Director M/s. OM Shakthy Agencies (Madras) Pvt. Ltd., No. 60, Veerappa Nagar Azhwarthirunagar Chennai 600 087 3. M/s.Mahindra Industrial Park Ltd., No.227, Anna Salai Chennai 600 002 4. M.Natraja Naicker ... Respondents/Defendants 2 to 4 Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records relating to the impugned plaint preferred by the respondent herein in O.S.No. 322 of 2010 on the file of the learned Court of Additional Subordinate Judge, Chengalpattu and struck off the same from the file of the above learned Court of Additional Subordinate Judge, Chengalpattu. *** For Petitioner : No appearance For 1st Respondent : Mr.V.Premkumar For RR 2 to 4 : Given up O R D E R
The petitioner/first defendant has preferred the instant Civil Revision Petition, praying for issuance of an order by this Court to call for the records pertaining to the impugned plaint filed by the respondent in O.S.No. 322 of 2010 on the file of the Learned Additional Subordinate Judge, Chengalpattu and struck off the same.
2. It comes to be known that the respondent/plaintiff has filed the suit in O.S.No. 322 of 2010 on the file of the Learned Additional Subordinate Judge, Chengalpattu, as against the revision petitioner/first defendant and other three defendants, praying for passing of a preliminary decree in cancelling the alleged deed of power fraudulently obtained by the first defendant in collusion with the fourth respondent by forging the plaintiff signatures purported to be a power of attorney deed in favour of the second defendant, dated 28.01.1997, bearing document No. 25/97; to cancel the impugned sale deed executed by the second defendant in favour of the third defendant, dated 07.09.1997 bearing document No. 3288/1997; and to cancel the impugned sale deed executed by the second defendant in favour of the third defendant, dated 14.01.1999 bearing document No. 3120/1999.
3. It transpires that on behalf of the second and third defendants, written statements have been filed before the trial Court. Also, in the main suit, issues were framed and on behalf of the respondent/plaintiff, proof affidavit has been filed by PW-1. The stage is now set for cross-examination of PW-1. In the main suit, the petitioner/first defendant has remained ex-pate. The third defendant, viz., M/s.Mahindra Industrial Park Ltd., Chennai 002, is contesting the main suit. In the main suit, PW-1 is to be cross examined and the matter stands adjourned to 10.06.2013 before the trial Court.
4. As seen from the memorandum of grounds, it is evident that a plea has been taken on behalf of the petitioner/first defendant that the learned Additional Subordinate Judge, Chengalpattu, failed to take into account, the law governing the subject matter of the suit to entertain the plaint in O.S.No. 322 of 2010 (filed by the respondent/plaintiff) as it was barred by the law of limitation. In this regard, the petitioner/first defendant has adverted to the Section 17 of the Contract Act 1872 which refers to "Effect of Fraud or Mistake".
5. Apart from the above, it is the case of the Revision petitioner/ 1st defendant that in the present suit before the trial Court the third defendant was not a party to the alleged fraud and did not at the time of the purchase knew or had reason to believe that the alleged fraud had been committed.
6. In the revisional grounds, it is the stand of the petitioner/first defendant that the suit property was sold out to the third defendant during the year 1997 and 1999 and the same was resold to some other person and that, the respondent was not in possession of the suit property.
7. Added further, a categorical stand taken on behalf of the petitioner/first defendant is that the plaint in O.S.No. 322 of 2010 on the file of the trial Court is barred by law of limitation, viz, by operation of Article 56 of the Limitation Act 1963.
8. Admittedly, the petitioner/first defendant has filed the present Civil Revision Petition before this Court on 15.02.2011. The impugned plaint in O.S.No. 322 of 2010 on the file of the trial Court has been filed during December 2010. As on date, the trial of the main suit has commenced.
9. It is to be pointed out that the real aim of Order 7 Rule 11 of C.P.C., is to keep out of courts irresponsible law suits. Order 7 Rule 10 of C.P.C., is a weapon in the hands of a Court of Law to effectuate the objection behind Order 7 Rule 11 of C.P.C.
10. It is to be noted that under Order 7 Rule 1 of C.P.C., there is a requirement of inclusion of cause of action. Ordinarily, a Court of law is to presume that every allegation in the plaint is true. As a matter of fact, when the plaint raises arguable points which requires deeper deliberation and scrutiny, then the same cannot be rejected in the eye of law. Also that, a plaint cannot be rejected under Order 7 Rule 11 of C.P.C., where the suit is required to be heard on merits after taking evidence in a given case.
11. It is to be borne in mind that a duty is showered on a Court of law to perform its obligations in rejecting the plaint by any of the infirmities under (a) to (d) of Order 7 Rule 11 of C.P.C., even without the help / intervention of Court. However, if the averments made in the plaint and the documents relied upon establish a cause of action, then the plaint should not be merely rejected based on the reason that the averments are not enough to prove the facts mentioned therein. Moreover, a Court of law can examine the parties to clear the pleadings.
12. In law, Article 227 of the Constitution of India is to be sparingly exercised. Also that, the words occurring under Order 7 Rule 11 (d) of C.P.C., 'barred by any law', includes the plea of law of limitation, in the considered opinion of this Court.
13. Continuing further, a mixed question of law of fact cannot be permitted to be raised straight-away under Article 227 of the Constitution of India, when under Order 7 Rule 11 (a) to (d) of C.P.C, there is an enabling provision to reject the plaint under circumstances mentioned therein.
14. It is to be borne in mind that the petitioner/first defendant is to only file an application praying for rejection of plaint under Order 7 Rule 11 of C.P.C., ascribing reasons as he deems fit, and proper by taking recourse to the ingredients of Order 7 Rule 11 (a) to (d). Obviously, the plea raised by the Revision petitioner/first defendant in the grounds is that the plaint filed by the respondent/plaintiff in O.S.No. 322 of 2010 is barred by limitation by virtue of Article 56 of the Limitation Act 1963. As such, this Court is of the considered view that when there is a clear cut express provision under Order 7 Rule 11 of C.P.C., enumerating necessary infirmities (a to d), then, it is for the petitioner/1st defendant to avail the same in the manner known to law and in accordance with law. However, in the instant case on hand, the petitioner/first defendant has not adopted such a recourse. Instead he has approached this Court straight-away under Article 227 of the Constitution of India by way of Civil Revision Petition praying for issuance an order by this Court to call for the records relating to the impugned plaint in O.S.No. 322 of 2010 on the file of the trial Court and to strike off the same.
15. The very approach of the petitioner/first defendant in directly knocking the doors of this Court in Revisional jurisdiction (under Article 227 of the Constitution of India) making an endeavour to seek a kind of relief which he is entitled to avail the same before the trail Court as per Order 7 Rule 11 (a to d), then this Court is of the considered view that the revision petition filed by the petitioner/first defendant is not per se maintainable in law. That apart, this Court pertinently makes a reference to Order 7 Rule 10 of Civil Procedure Code which speaks of 'Return of plaint'. However, a plaint should not be returned unless the Court finds that it has no jurisdiction.
16. Be that as it may, this Court is of the considered view that even though this Court can exercise Supervisory control / parental case over the Subordinate Courts under Article 227 of the Constitution of India yet this Court is of the considered opinion that the said exercise of power by this Court is to be done with utmost Care and circumspection. To put it differently, the exercise of power under Article under 227 of the Constitution by this Court cannot ipso facto be resorted to by the Revision Petitioner/first defendant either as a matter of routine or as a matter of course.
17. In any event, when the suit in O.S.No. 322 of 2010 on the file of the Learned Additional Sub Judge, Chengalpattu is in part Heard stage before the trial Court and too when PW-1 is to be cross examined then, it is open to the petitioner/first defendant (if he so desires and advised) to raise the point of limitation in regard to the averments made in the plaint and therefore, it is barred by law. It is open to the petitioner/first defendant to raise all factual and legal pleas before the trial Court and to seek appropriate remedy in the pending suit in accordance with law and in the manner known to law.
18. Viewed in that prospective, the Civil Revision Petition filed by the petitioner/first defendant sans merits.
19. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Taking note of the fact that the main suit in O.S.No. 322 of 2010 is in part Heard stage on the file of the trial Court and only the third defendant is said to be a contesting party, the Learned Additional Subordinate Judge, Chengalpattu, is directed to dispose of the main suit, within a period of four months from the date of receipt of a copy of this order (based on Equity, Fair play, Good conscience and even as a matter of Prudence) and to report compliance before this Court without fail. Resultantly, the Miscellaneous Petition is also dismissed.
26.4.2013 vsg Index: Yes/No Internet: Yes/No To
1.Additional Subordinate Judge, Chengalpattu
2.The Sub Assistant Registrar (Judicial) High Court, Madras, Chennai (for watch and Report) M.VENUGOPAL, J.
vsg C.R.P.(PD)No.1138 of 2011 And M.P.No. 1 of 2011 26.04.2013