Madras High Court
S.Thillai Nadarajan vs Ramakrishna Thevar on 17 February, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17.02.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.R.P.(PD)(MD)No.231 of 2015 and M.P.(MD)No.1 of 2015 S.Thillai Nadarajan .. Petitioner/Defendant Vs 1.Ramakrishna Thevar 2.Chelladurai 3.Madappan 4.Ganapathi (Plaintiffs for themselves and representing on behalf of the Kulasekaraperi Kula Karai Swantharargal) .. Respondents/Plaintiffs Petition filed under Article 227 of the Constitution of India to strike of the plaint in O.S.No.615 of 2014 on the file of the Principal District Munsif Court, Tenkasi, Tirunelveli District. For Petitioner : Mr.S.S.Sundar For Respondents : Mr.T.S.R.Venkatramana for R1 and R2 :ORDER
The revision petitioner herein is the sole defendant in O.S.No.615 of 2014 on the file of the Principal District Munsif Court, Tenkasi, Tirunelveli District. The respondents herein filed the suit in a representative capacity, and an application under Order 1 Rule 8 of CPC was filed in this regard along with the suit.
2.The Trial Court was satisfied that there exists a common interest and notice was issued to the interested parties by way of paper publication and also by proclamation through tom-tom. According to the revision petitioner, the numbering of the suit is bad before deciding the application filed under Order 1 Rule 8 of CPC, and the Trial Court ought not to have taken up the interim application for injunction before deciding the application under Order 1 Rule 8.
3.When I.A.No.2488 of 2014 in O.S.No.615 of 2014 was filed for interim injunction, the petitioner herein filed a counter affidavit raising all these contentions. The matter was heard and the Trial Court reserved its orders in I.A.No.2488 of 2014 in O.S.No.615 of 2015 on 28.01.2015, and it was posted on 07.02.2015 for pronouncing orders in the interim application. While so, no order was passed on 07.02.2015 and the matter was adjourned to 12.02.2015. While so, the present Civil Revision Petition is filed on 09.02.2015 seeking to strike out the plaint, since the suit was entertained without getting permission under Order 1 Rule 8 of CPC. Before numbering the suit, when the Civil Revision Petition came up on 11.02.2015, this Court was not inclined to grant interim order, after hearing at length the learned counsel for the revision petitioner Mr.S.S.Sundar. The petitioner herein filed a memo before the Trial Court that Civil Revision Petition is pending before this Court, on 12.02.2015. In these circumstances, the Trial Court adjourned the matter to 27.02.2015, ie., the petitioner does not want the order to be pronounced in I.A.No.2488 of 2014. He is able to achieve this without getting any order from this Court.
4.The learned counsel for the petitioner has vehemently contended that mere filing of application under Order 1 Rule 8 of CPC is not sufficient to number the suit and taking up interim application, and the final order shall be passed in Order 1 Rule 8 application, otherwise the entire proceedings is vitiated and the plaint has to be struck out under Order 7 Rule 11 of CPC. He relied on a judgment of this Court in S.R.Nanda Kishore v. Body of Villagers, reported in (2013) 8 MLJ 585, in support of his contention.
5.On the other hand, the learned counsel for the respondents has submitted that prima facie the Trial Court was satisfied that there was a common interest in the suit and based on that, the application was ordered and accordingly paper publication was also effected. Now the tom-tom has also been carried out and it has been posted for further orders in I.A.No.2488 of 2014 in O.S.No.615 of 2014 under Order 1 Rule 8 of CPC, to 27.02.2015. Hence, he has vehemently contended that even if no application is made under Order 1 Rule 8, the plaint cannot be struck out in view of the categorical pronouncement of this Court in Royal Villa Residents' Association v. The Project Management Committee, reported in 2013 (3) MWN (Civil) 2008.
6.The learned counsel for the respondents has also relied upon yet another judgment of this Court in Nilgiri District Janatha Party, etc. v. A.Rahim and 3 others, reported in 1996-2-L.W. 456. In that case, the suit was decreed in favour of the plaintiffs and the first Appellate Court reversed the decree on the sole ground that no permission was obtained under Order 1 Rule 8 of CPC and hence the suit was not maintainable, and ultimately the first Appellate Court dismissed the suit. In the Second Appeal, the plaintiffs were allowed to file an application under Order 1 Rule 8 and the same was allowed and the suit was decreed. Hence, he has submitted that the revision petitioner could not seek to strike out the plaint even if there is no application filed under Order 1 Rule 8, and in the facts and circumstances, the revision petitioner is not correct in seeking to strike out the plaint and the only intention is to restrain the Trial Court to decide the interim application.
7.I have considered the submissions made on either side.
8.In the above narration, I have not dealt with the facts of the case as the same are not necessary. The whole issue is as to whether the petitioner can seek to strike out the plaint in Civil Revision Petition on the sole ground that the respondents failed to file the suit under Order 1 Rule 8 of CPC in a representative capacity. As rightly contended by the learned counsel for the respondents, this Court has considered the identical issue in Royal Villa Residents' Association v. The Project Management Committee, reported in 2013 (3) MWN (Civil) 2008, and has categorically held that Civil Revision Petition could not be entertained to strike out a plaint on the ground that the plaintiffs failed to file application under Order 1 Rule 8, since this Court has reasoned that the same could be rectified later. Therefore, the same could not be a reason to strike out a plaint. In the present case, factually the plaintiffs filed the petition and the Trial Court also was prima facie satisfied that there was a common interest in the suit.
9.In Nilgiri District Janatha Party, etc. v. A.Rahim and 3 others, reported in 1996-2-L.W. 456, this Court allowed the plaintiffs to file application under Order 1 Rule 8 in the second appellate stage and the same was allowed and the suit was decreed while the decree granted by the Trial Court was reversed by the first appellate Court on the sole ground that the plaintiffs failed to file application under Order 1 Rule 8 of CPC.
10.Applying these two judgments, I am of the view that this Civil Revision Petition fails and the same deserves to be dismissed.
11.The judgment relied on by the learned counsel for the petitioner in S.R.Nanda Kishore v. Body of Villagers, reported in (2013) 8 MLJ 585, is not applicable in the present case, since in that case this Court came to the conclusion that there was abuse of process of Court. Wherever there is abuse of process of Court, either the Trial Court or this Court can straightaway strike out the plaint without even an application under Order 7 Rule 11. But the learned counsel for the petitioner has fairly submitted that there is no abuse of process of Court. Hence the said judgment is not applicable.
12.In the result, the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
Index : Yes/No 17.02.2015 Internet : Yes/No KM
Note to the Registry: Issue order copy on 18.02.2015.
To The Principal District Munsif, Tenkasi, Tirunelveli District.
D.HARIPARANTHAMAN, J.
KM C.R.P.(PD)(MD)No.231 of 2015 and M.P.(MD)No.1 of 2015 17.02.2015