Madras High Court
C.Gopalaswamy vs M.Ramasamy
Author: P.T.Asha
Bench: P.T.Asha
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 14.08.2018
Pronounced on: 29.08.2018
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.R.P(PD).No.4548 of 2010
and M.P.No.1 of 2010
C.Gopalaswamy
Rep. by Power Agent
Arupalanisamy ... Petitioner/Respondent/Plaintiff
Vs.
1.M.Ramasamy
2.Rangaswamy
3.J.Nantha Kumar ... Respondents / Defendants
4.D.J.Ananda Kumar ... Respondent/Petitioner/Defendant No.4
5. Indian Overseas Bank,
Redfields Branch,
Trichy Road, Ramanathapuram,
Coimbatore,
Rep. by its Branch Manager.
6. The Thasildar,
Palladam ... Respondents/Defendants Nos. 5 & 6.
Prayer :
Civil Revision Petition filed under Section 115 of the Civil Procedure Code to set aside the order passed by the learned District Munsif, Palladam, dated 13-04-2010, allowing I.A. No.763 of 2009 in O.S. No.64 of 2008 and consequential order rejecting the plaint in O.S.No.64 of 2008.
For Petitioner : Mr.V.Lakshminarayanan,
for Mr.P.K.Rajagopal.
For Respondents : Mr.R.Govindaraj for R4,
M/s. K.Jayaganga
for Mrs.Ananda Gomathy for R5,
for Mr.P.R.Balasubramanian(R1),
R1 & 6 No appearance,
Not ready in notice regarding R2 & 3.
O R D E R
The above Civil Revision Petition is filed challenging the rejection of the plaint O.S.No.64 of 2008 by the learned District Munsif, Palladam by his Order dated 13.04.2010 in I.A. No.763 of 2009. The revision petitioner is the plaintiff and respondents 1 to 6 are defendants 1 to 6 respectively in the suit O.S.No.64 of 2008.
2. A brief resume of the facts necessary for deciding the revision are as follows:-
The revision petitioner had filed the suit O.S.No.64 of 2008 for the following reliefs.
a) declaring the Sale Deed dated 03.02.2000 is illegal, void and not binding on the schedule mentioned property.
b) granting an order of permanent injunction restraining the third and fourth defendants, their men and agent or any one claiming any right through them from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property either by giving effect to the sale deed dated 03.02.2000 or the sale agreement dated 31.07.1998 and creating an alienating or otherwise.
c) Declaring that the alleged mortgage created over the suit property by the 4th defendant with the 5th defendant is non-est, sham and not binding on the plaintiff's and to grant an order of consequential permanent injunction restraining the 5th defendant from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
d) Granting an order of permanent injunction restraining the 6th defendant from in any manner giving effect to Sale Deed dated 03.02.2000 with regard to the schedule mentioned property either by transferring the assessment in respect of the suit property in favour of the 4th defendant or otherwise.
3. The revision petitioner's case is that the suit property which he had purchased under the sale deed dated 06.03.2006 originally belonged to one Nanjaya Gounder. The suit property is a portion of a larger extent of land in Survey Field No.398 of Sulur Village, Palladam Taluk measuring an extent of 9.66 acres. The said Nanjaya Gounder on 07.07.1996 had executed a settlement deed in favour of the 2nd respondent herein who is his son in respect of 5.00 acres out of the larger extent along with other properties. By a sale deed dated 18.02.1997 the 2nd respondent herein had sold an extent of 3.90 acres, viz., the suit property to the 1st respondent. It is from the 1st respondent that the revision petitioner has purchased the above property. It is the case of the revision petitioner that when he had tried to get the revenue records mutated, he found the 6th respondent herein dragging his feet and thereafter he heard some rumours that the property was sold to the 4th defendant herein. Thereafter, the revision petitioner had made an inspection in the Sub-Registrar's office where from he came to learn that under a sale agreement dated 31.07.1998, the 2nd respondent had agreed to sell not only the suit property but also the remaining extent covered by the settlement deed dated 07.07.1996. Thereafter, it appears that the property was also sold to the 4th respondent by the 2nd respondent through his power agent. This sale has been effected after the sale in favour of the 1st respondent, which had taken place on 18.02.1997 prior to the agreement which was entered into between the 2nd and 4th respondents. All this information came to the revision petitioner's knowledge just 4 months prior to filing of the suit. The revision petitioner therefore contended that the sale in favour of the 4th respondent insofar as it related to the suit property was without any title.
4. The 1st respondent whom the revision petitioner had approached expressed his helplessness and therefore since the respondents were attempting to interfere with his possession, the revision petitioner had come forward with the present suit. After filing their written statement on 29.10.2008, wherein they had denied the right of the revision petitioner, the 4th respondent had filed the impugned application to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure, hereinafter referred to as CPC. The application for rejecting the plaint was based on the following grounds:-
a) The power of attorney was not filed along with the suit.
b) The petition under Order 2 Rule 2 CPC has not been filed along with the plaint.
C) The suit is barred by limitation in as much as the suit for declaration has been filed 8 years after the sale in favour of the 4th defendant.
d) The property has been under valued and consequently the Court fee paid was very low
e) there is no cause of action for the suit and
f) the prayer for declaring the mortgage deed created in favour of the 5th defendant is also barred by limitation.
5. The revision petitioner filed a Counter, wherein he had stated that the power of attorney has been filed along with the petition and the same was received and thereafter the suit had been numbered. The revision petitioner would further contend that he had come to know about the sale in favour of the 4th respondent only four months prior to the filing of the suit and therefore there is no question of the suit being barred by limitation. The revision petitioner is not a party to the sale deed which he is seeking to declare as null and void and therefore the relief could be valued at a notional value. The reading of the plaint would amply demonstrate the cause of action and therefore the petition deserves to be rejected.
6. The learned District Munsif, after hearing either parties rejected the suit only on the grounds of limitation, vis a vis ground c & f. The learned Judge passed this order on the basis that the plaint did not contain any details about the date of knowledge and it is only in the counter for the very first time that the revision petitioner had taken the plea that he had come into knowledge about the sale in favour of the 4th respondent four months prior to the filing of the suit. Aggrieved by this order the revision petitioner is before this Court.
7. A preliminary objection has been raised by the respondents as to the maintainability of the Civil Revision Petition since the order rejecting a plaint is a decree within the meaning of Section 2(2) of the CPC. Therefore the remedy available to the petitioner is only to file a regular appeal under Section 96 CPC. This Court is therefore deciding the issue of maintainability first.
8. Mr.V.Lakshminarayanan appearing on behalf of Mr.P.K.Rajagopal Counsel for petitioner would counter this argument by stating that the very filing of the application under Order 7 Rule 11 CPC for rejecting the plaint on the grounds of limitation which is a mixed question of fact and law is by itself not maintainable as it does not come under any of the clauses contained in Order 7 Rule 11 CPC. He would therefore argue that once the ground for rejection itself is not maintainable then this Court could exercise its jurisdiction under Article 227 and examine the correctness of the order passed by the learned District Munsif.
9. In support of his arguments regarding limitation being a mixed question of fact and law and therefore not coming within the purview of Order 7 Rule 11(d) CPC, the learned Counsel for the petitioner has relied on the following Judgments reported in 2009 (5) CTC 837 [Dega Jayalakshmi and 3 others vs. Kapoor Enterprises rep. by its Managing Partner, R.M.Lakshman Dass and others] and CDJ 2014 BHC 597 [Export Credit Guarantee Corporation of India Ltd. Versus T.Mathew the Settler and Trustee of P.M.T. Family Trust & Others]. The Counsel would therefore contend that the plea of limitation is a mixed question of fact and law which cannot be considered at the threshold in an application for rejecting the plaint. No doubt, the question of limitation if raised is a mixed question of fact and law which requires to be considered at the time of trial.
10. Before proceeding to analyse the maintainability it is necessary to consider Section 2(2) of the CPC.
Section 2(2) of the CPC reads as follows:-
2. Definitions In this Act, unless there is anything repugnant in the subject of context,-
(2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in a controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
11. Useful reference may also be made to the definition of an Order under Section 2(14) CPC which reads as follows:-
Order means the formal expression of any decision of a Civil Court which is not a decree;
Therefore, from a reading of the above it is clear that an order rejecting a plaint is a decree and not an Order.
12. A reading of the petition filed by the respondents would show that the application for rejecting the plaint has not been filed only on the ground of limitation but it has also been filed on the grounds of want of cause of action and under valuation as well. Therefore, the argument of the revision petitioner that the very filing of the Order 7 Rule 11 CPC petition was not maintainable is wrong.
13. In the Judgment reported in 2009(2) MLJ Page 823 [K.S. Geetha Vs. Stanley buck and Dr.P.Sedhu Ammal] this Court has held that against the order rejecting a plaint only an appeal under Section 96 would lie and the challenge by way of a revision petition is not maintainable. Relying on a Judgment of this Court reported in 1942(1) MLJ 569 [Ratnavelu Pillai and Anr. Vs. Varadaraja Pillai and Anr.] and the Judgment reported in AIR 1976 Madras 289 [R.Shanmughavelu Pillai Vs. R.Karuppannan Ambalam] the learned judge came to the conclusion that only the legal position after considering the above rulings is that as against the order rejecting the plaint only an appeal lies and not a revision.
14. In the Judgments cited by the revision petitioner there has been no challenge to the filing of the revision. However, in the judgment in CRP(MD)No.330 of 2008 [Natarajan vs. Jacob Manohar] the respondents had raised the issue of maintainability at the very first instance. However, the learned Judge had opined that she was not deciding the issue with reference to the maintainability of the Civil Revision Petition as the Registry had not raised any objection at the time of filing of the Civil Revision regarding the maintainability and that the Civil Revision Petition has been pending on the file of this Court for over nine years. This Court is however not inclined to follow the said view, since Section 2(2) clearly defines an order rejecting the plaint as a decree. A revision can be entertained if the application to reject the plaint has been dismissed, as such an order would not amount to a decree. However, in the instant case the plaint has been rejected as a consequence of the order passed in the application under Order 7 Rule 11 CPC.
15. In the judgment reported in 2003 (6) SCC 659[Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers] the Hon'ble Supreme Court has dealt with the difference between a decree and an Order and the further appeal therefrom as follows:-
In Section 2 the expression of 'decree' and 'order' have been defined in Clause(2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an order. If, in fact, it fulfils the condition of the definition under Section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussual i.e., interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order 43 deals with the appeals from orders these appeal lie under Section 104 of the Code. The said Section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-Section(2) of Section 104 says that no appeal shall lie from any order passed in an appeal under the said Section. Section 104 and Order 43 Rule 1 contain a full list of appealable Orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable section is Section 96.
16. In another judgment reported in 2015(2)SCC 682[Rajni Rani and Another vs. Khairatilal and Others] the Hon'ble Supreme Court was dealing with an issue as to whether dismissal of a counter-claim can be set aside in exercise of revisional jurisdiction under Section 115 of the CPC or in exercise of power of superintendence under Act 227 of the Constitution of India or to be assailed by preferring an appeal, in paragraph 17 of the said judgment the Hon'ble Supreme Court has held as follows:-
We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case at hand, the counter-claim which is in the nature of a cross suit has been dismissed. Nothing else survives for the defendants, who had filed the Counter-claim. Therefore, we have no hesitation in holding that the order passed by the trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where appeal could lay by paying requisite fee. It could not have been unsettled by the High Court in exercise of the power under Act 227 of the Constitution of India.
17. A conspectus of the above judgments clearly sets out that where an order has the effect of bringing about a finality to the rights of a party such an order is a decree and only an appeal would lie against the said order. The order in I.A.No.763 of 2009 in O.S.No.64 of 2008 has effectively brought a finality to the suit. Therefore, a decree having been passed in suit O.S.No.64 of 2008 by the learned District Munsif, Palladam, only an appeal under Section 96 would lie and the revision is not maintainable.
18. In the case of hand the revision petitioner has instituted the suit on the following main contentions:-
(a) That his vendor the 1st respondent has purchased the suit property even prior to the agreement of sale between the 2nd respondent and the 4th respondent.
(b) That on the date of the sale by the 2nd respondent in favour of the 4th respondent the 2nd respondent had no title to the suit property and hence the sale is invalid.
(c) That these transactions came to the knowledge of the Revision Petitioner only 4 Months prior to the institution of the suit.
The learned District Munsif, Palladam has committed a grave error in not considering the pleadings raised by the revision petitioner in his plaint thereby disregarding the plethora of judicial pronouncements that it is only the averments in the plaint that has to be considered while dealing with an petition under Order VII Rule 11 CPC.
19. The Revision Petitioner has a substantial case to urge in the suit and has been diligently prosecuting this revision, therefore, relying on the judgment reported in 2015(2)SCC 682[Rajni Rani and Another vs. Khairatilal and Others] supra the revision petitioner is granted liberty to prefer an appeal before the appropriate forum as required under law.
20. In the result, the Civil Revision Petition is dismissed, granting liberty to the revision petitioner to prefer an appeal before the appropriate forum. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
29.08.2018 Index: Yes Internet: Yes Speaking/Non Speaking msvm To The District Munsif, Palladam.
P.T.ASHA,J.
msvm Pre-delivery order in C.R.P(PD).No.4548 of 2010 and M.P.No.1 of 2010 29.08.2018