Madras High Court
Mrs. Uma Ravanan vs M/S Vignesh Weighers on 5 February, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.02.2008 CORAM THE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C. R. P. (NPD) Nos.2593 and 2594 of 2007 and M.P.Nos.1 +1+2+2+3 of 2007 Mrs. Uma Ravanan .... Petitioner in both petitions Vs. M/s Vignesh Weighers represented by its Proprietor Mr.K.HariKrishnan ... Respondent in CRP.NO.2593 of 2007 M/s Sooriya Weighers represented by its Proprietor Mr.K.Harikrishnan ... Respondent in CRP No.2594 of 2007 Civil Revision Petitions are filed under Article 227 of the Constitution of India, against the plaint filed in O.S.No.4153 of 2007 and O.S.No.4154 of 2007 respectively on the file of the learned V Assistant Judge, City Civil Court,Chennai. For Petitioner : : Mr.S.Packiaraj,Advocate For respondents : : Mr.S.M.Loganathan,Advocate C O M M O N O R D E R
Both the revisions have been filed under Article 227 of the Constitution of India, for the relief of rejecting the plaint in O.S.No.4153 of 2007 and O.S.No.4154 of 2007 on the file of V Assistant Judge, City Civil Court, Chennai and to struck of both the cases from his file.
2. According to the revision petitioner / the defendant in O.S.No 4153 of 2007 and O.S.No.4154 of 2007, the respondent/plaintiff is only a worker under her husband Ravanan and was receiving the monthly rent from the said Ravanan. The property involved in the suits are two weigh bridges viz., Sri Vignesh Weighers and Sri Sooriya Weighers. Sri Vignesh Weighers is the subject matter of O.S.No.4153 of 2007 and Sri Sooriya Weighers is the subject matter of O.S.No.4154 of 2007. According to the revision petitioner suppressing these facts, the plaintiff/respondent herein Thiru K.Harikrishnan had filed the above said suits against Mrs. Uma Ravanan for injunction which is according to the revision petitioner is not maintainable under law since the plaintiff in both the suits has no cause of action to file the suits. According to the revision petitioner, the plaintiff in both the suits had abused the process of law by filing false, frivolous, vexatious suits on a bogus and false claims without impleading the proper and necessary parties viz., the children of Mrs.Uma Ravanan/defendant .
3. Both the revision petitions were resisted by the respondent on two grounds one being that the revision petitioner cannot invoke Article 227 of the Constitution of India, if he has an alternative remedy. The second being without controverting the plea of the plaintiff in the plaint by way of filing written statement or counter, the revision petitioner cannot straightaway rushed to this Court with these revision petitions.
4. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondents and considered their respective submissions.
5. The learned counsel appearing for the revision petitioner Mr.S.Packiaraj would focus the attention of this Court to the cause of action column in O.S.No.4153 of 2007 and also the cause of action column in O.S.No.4154 of 2007. According to the learned counsel appearing for the revision petitioner, cause of action stated for filing the suit in O.S.No.4153 of 2007 by the plaintiff is that the suit property was leased out by Thiru P.Ravanan , the husband of the defendant, only for the completion of erection work in the suit premises and that according to him, he took over possession of the suit premises from 15.1.2007 for a monthly rent of Rs.5,000/- to be payable on or before 10th ofevery succeeding month and that on 5.7.2007 one Mahesh, a close relative of the defendant came to the suit property and threatened the plaintiff, to hand over the vacant possession . It is the case of the revision petitioner that to substantiate that the plaintiff is in possession of the suit property, he has not produced any document along with the plaint. Even in the plaint in O.S.No.4154 of 2007, the plaintiff has alleged that while the said Ravanan was alive, he had carried on the business under the name and style of M/s Everest Weighers and the plaintiff was managing the business and after the death of Ravanan on 16.3.2007, the defendant, the wife of Ravanan had expressed to lease the suit premises to the plaintiff on a monthly rent of Rs.5000/- to be payable on or before 10th of every succeeding month and accordingly when the plaintiff took over the business on 6.4.2007 and from that date onwards, he is running the plaintiff's business in the name and style of M/s Sooriya Weighers by paying a monthly rent of Rs.5000/- without any default and that on 28.6.2007 one Mahesh posing himself as a close inmate of the defendant came to the suit premises and made an attempt to dispossess the plaintiff which necessitated him to approach J1 Police Station to prefer a police complaint.
6. In support of his contention, the learned counsel appearing for the revision petitioner relying on a decision reported in A.Sreedevi-v- Vicharappu Ramakrishnan Gowd(2006-1 L.W.398) and contended that this Court while exercising the power under Article 227 can dismiss the suit at the threshold. The facts of the said case are that the respondent in HMOP No.706 of 2004 on the file of Principal Judge, Family Court, Chennai had filed revision under Article 227 of the Constitution of India. The said HMOP was filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The case of the respondent in HMOP No.706 of 2004 /revision petitioner is that the marriage between the respondent and the petitioner in HMOP.NO.706 of 2004 was an arranged marriage which took place at Madras and after the marriage, they lived together at Madras for three days and that the respondent went to a village by name Addankivaripalam to attend his personal work and he came to Madras on 19.3.1992 and that the petitioner refused to live with him without assigning any reason. Thereafter, they went to Addankivaripalam and then came to Madras and since the petitioner in HMOP NO.706 of 2004 failed to return for the marital home, the respondent had issued a notice on 8.8.1992 but no reply was sent by the wife/petitioner in HMOP No.706 of 2004 but the respondent has filed another similar petition under Section 9 of the Hindu Marriages Act which was dismissed as withdrawn on 22.12.1994 as the dispute was settled mutually. Subsequently, the respondent in HMOP No.706 of 2004 came to his native place where he met with an accident and stayed back and inspite of his notice dated 12.12.2003, the wife/respondent in HMOP No.706 of 2004 has failed to join him. Hence he has filed another HMOP. Under such circumstances,filing of the later HMOP was challenged by the revision petition before this Court under Article 227 of the Constitution of India. The relevant observation by this Court in the said Judgment relevant for the purpose of deciding these revisions are as follows:
"It is to be remembered that in this case, the petitioner herein has not filed any application under Order VII Rule 11 CPC before the trial Court seeking the relief of rejecting the plaint but chosen to approach this Court by filing this revision under Article 227 of the Constitution of India. Article 227 of the Constitution of India runs as follows:. . . . . Any plea which was not raised before the subordinate Court can be raised before the High Court in the writ proceedings for the first time. The general Rule is the ground which is not specifically taken before the trial Court shall not be allowed to be urged before the High Court. However, there is exceptions to the general rule that when a plea which goes to the root of the question and is based on admitted and uncontroverted facts, such plea should be allowed to be raised for the first time in writ petitions. In this context, it is useful to look into below mentioned decisions of the Honourable Supreme Court in the decision reported in A.St. Arunchalam Pillai vs/M/s Southern Roadways Ltd and another, AIR 1960 Supreme Court 1191 in para 5 it was held thus:
" In our opinion, although the respondent had submitted to the jurisdiction of the Regional Transport Officer and had not in his petition under Article 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit. It was not until the decision of the High Court in Writ Appeal No.107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the law was so declared by the High court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Article 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No.107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court, faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under Section 64-A of the Act."
The main defence taken in that HMOP was that the revision petitioner as an actress in the Hindi Movie, having lot of fans through out India and the respondent with an intention to gain cheap publicity in print and visual media filed HMOP NO.706 of 2004. Already, he had filed another HMOP under Section 9 of the Hindu Marriages Act which was dismissed as withdrawn and subsequently, there was a settlement arrived at between the parties and when they came to their native place, the husband met with an accident and stayed back and filed present HMOP . The respondent in the revision petition/husband /the petitioner in HMOP No.706 of 2004 is in the habit of filing HMOP after HMOP against his wife who was a popular Hindi Actress. Only under such circumstances,after observing that the respondent/husband, after the alleged marriage with Jayapradha, cine artist, still subsisting alleged that he had married the petitioner in HMOP is not entitled to file the present HMOP NO.706 of 2004 even assuming for a moment that the marriage had taken place as averred. In view of the said uncontroverted facts which goes to the root of the case. The said plea raised by the petitioner for the first time was entertained by this Court and held that HMOP NO.706 of 2004, filed by the respondent is manifestly, vexatious and meritless in the sense of not disclosing a clear right to sue. This Court while exercising its power under Article 227 of the Constitution of India had allowed the said civil revision petition thereby ordered to struck off HMOP.706/2004 from the file of Principal Family Court, Chennai.
7. But that is not the case here in. According to the plaintiff, the husband of the defendant Mrs.Uma Ravanan viz., Thiru P.Ravanan had leased out the suit property to the plaintiff and he is in possession of the suit premises from 15.1.2007 in respect of Sri Vignesh Weighers in O.S.No.4153 of 2007 and is in possession of Sri Sooriya Weighers in O.S.No.4154 of 2007 from 6.4.2007 and that he is paying a monthly rent of Rs.5000/- each for the above said weigh bridges to the defendant and there was no case filed previous to the filing of O.S.No.4153 of 2007 and O.S.No.4154 of 2007.
8. Relying on a decision reported in K.K.Swaminathan-v-Srinivasagam(2003(4)CTC 347) the learned counsel appearing for the revision petitioner would contend that if it is shown that there was an abuse of process of Court, then this Court , while exercising the Superintendence power over Subordinate Court under Article 227 can interfere with for preventing the miscarriage of justice. The facts in a nutshell in the said ratio are that the plaintiff had filed an earlier suit, after the dismissal of the said suit has filed another suit on the same cause of action which was held to be an abuse of process of law. The relevant observation in the said dictum runs as follows:
"Be it under Article 227 of the Constitution of India or under Section 115 CPC, the High court has general supervisory jurisdiction. That supervisory revisional jurisdiction of the High court is the residuary jurisdiction conferred on the High Court. Thus , exercising the supervisory jurisdiction conferred on the High Court under Section 115 CPC, it is just and necessary that the plaint in O.S.No.2473/1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to direct the Revision petitioner to pay the costs of the suit to the respondent."
9. The learned counsel appearing for the revision petitioner relied on a decision reported in SNP Shipping Service Pvt.Ltd-vs-World Tanker Carrier Coproration (AIR 2000 Bombay 34). It is a case wherein , the plaint was rejected under Order 7 Rule 11 of CPC., The suit was filed for defamation on the ground that after foreign Court Judgment defendants supplied data to newspapers and on that basis defamatory reports came to be published. It was found that the plaintiffs have filed a suit malafide and with an intention of harassing the defendants. Only under such circumstances, the plaint was ordered to be rejected at the threshold in view of Order 6 Rule 16 CPC. While disposing of the appeal, the learned Judge of the Bombay High Court has observed as follows:
" Thus, it is apparent that Order 6,Rule 16 is not the sole repository for the power of the High Court to reject the plaint for abuse of the process of Court. In my view, the plaintiffs have not come to Court with clean hands. For the aforesaid reasons the plaint has to be rejected, when abuse of process is clearly established before the Court. It is not sufficient merely to dismiss the action. It is the bounden duty of the Court to express its disapproval of the course adopted by the parties."
10. In Puran Singh -v-State of Punjab (1996)2 Supreme Court Cases, 205) it has been held that "when the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. Different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious."
11. Under S.P.Chengalvaraya Naidu(dead) by Lrs.-v- Jagananath(dead) by Lrs(1994)1 Supreme Court cases 1). The relevant passage relied on by the learned counsel appearing for the revision petitioner in the said Judgment is as follows:
" The principle of "finality of Litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court,must come with clean hands. A person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A Judgment or decree obtained by playing fraud on the Court is nullity and non est in the eyes of law. Such a judgment/decree by the first Court or by the Highest Court- has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings."
12. Relying on the above said citations, the learned counsel appearing for the revision petitioner would contend that these two original suits are fit to be struck off from the file even at the threshold since the plaintiff has no cause of action to file the suits.
13. The learned counsel appearing for the respondents has resisted the contentions of the learned counsel appearing for the revision petitioner on the ground that when an alternative remedy like order 7 Rule 11 CPC is available for the petitioner and having failed to avail the same cannot approach this Court under Article 227 of the Constitution of India. The learned counsel for the respondents would further contend that even without filing a written statement or counter in the interlocutory application, the defendant has straightaway come to this Court with these revision petitions which is not also permissible under law. In support of his contention, the learned counsel appearing for the respondents would rely on a decision reported in Enercon (India) Ltd., Mumbai-v-J.T.Micheal Anjalo(2005(2) CTC 365) . The facts in brief in the said case are as follows: The revision has been filed under Article 227 of the Constitution of India for striking off the suit in O.S.No.288 of 2004 from the file of the District Munsif, Valliyur on the ground that the suit is not maintainable. The respondents in the revision petition have filed a suit for an interim injunction, restraining the third respondent from alienating the suit property till the sale agreement is subsisting and restraining the petitioner from commissioning the wind energy electrical generator. Pending suit, respondents 1 and 2 prayed for an interim injunction, restraining the petitioner from commissioning the wind Mill. The trial Court gave interim injunction only with regard to the operation of the wind mill generator. Against the said order, the petitioner in the revision petition has filed a revision without filing an appeal which is there remedy against an order passed in an application under Order 39 Rules 1 and 2 and 151 of the Civil Procedure Code. While disposing of the said CRP, this Court has observed as follows:
"If the petitioner is aggrieved by the order passed under Order 39, Rules 1 and 2, there is an appeal remedy and he can avail,of it. If the petitioner's case is that the plaint should be rejected, even then, he has his remedy. But unless, the circumstances, warrants and the abuse of process of law stares in the face, Article 227 cannot be invoked for striking of a case from the file. It is in these circumstances, the CRP is dismissed."
14.Ganapathy Subramanian-v- S.Ramalingam(2007)7 MLJ 13). The relevant observation for disposal of these revision petitions is as follows.
"The supervisory jurisdiction of this Court could be invoked only when the trial Court has committed any error. Mere filing of a suit by the respondents and taking the suit on the file by the trial Court cannot be regarded as an act on the part of the trial Court to transgress its jurisdiction or its bound. Of course, the party who files the suit might have filed the suit suppressing material facts or made up the suit to his convenience for seeking the relief which is not otherwise entitled to. But that fact has to be considered by the trial Court during the relevant point of time. There is no impediment or embargo for the petitioner to put forth his contentions before the trial Court to strike off the plaint at the threshold. As this Court is relegating the petitioner to go before the trial Court for the relief, the Court has restrained itself from going into the facts of the case, as any observation made by this Court would have a bearing on the suit, which is pending before the trial Court. Of course, the petitioner is also having an effective remedy in the Code of Civil Procedure itself to have the suit struck off and he could very well avail that remedy. On the above said reasoning, I am not inclined to grant the relief as prayed for in the revision."
15.In A.Venkatasubbiah Naidu-v- Chellappan (AIR 2000 Supreme Court 3032). In the said Judgment, reliance has been placed on the following observations by the learned counsel appearing for the respondents.
"It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from Order 39 Rule 1. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the exparte order for any relief."
16. At this juncture, the learned counsel appearing for the respondents would bring to the notice of this Court that I.A.Nos 10683 and 10682 in O.S.No.4154 and 4153 of 2007 were filed by the defendant/respondent /the revision petitioner for temporary injunction and that ad interim injunction was granted in I.A.Nos.10683 and 10682 of 2007 in O.S.Nos.4154 and 4153 of 2007 respectively but the said order was not challenged by the defendant in the suit viz., Mrs.Uma Ravanan but the same was challenged before this Court by the children of the defendant Mrs.Uma Ravanan viz., Minor R.Vignesh and Minor R.Rohini represented by their grand father and guardian Thiru K.Raja Mani. Even in the order passed in C.R.P.Nos.2157 and 2158 of 2007, this Court directing the V Assistant Judge, City Civil Court, Chennai to dispose of the interlocutory applications within a period of one month, after filing of the counters by the other side in both the applications. It is further been observed in the order of this Court that the petitioners would produce a copy of the certificate of verification issued by the Deputy Inspector of Labour, V Circle, Chennai to show that the weighing machines belong to the second respondent/defendant, the mother of the petitioners. But without producing any document before the trial Court to show that the weighing machines Sri Vignesh Weighers and Sri Sooriya Weighers belong to the defendant and without resisting the suit filed by the plaintiff by way of filing written statement, straightaway , the plaintiff has approached this court for a relief of struck off the plaint in both the suits at the threshold.
17. In Sadhana Lodh-v-National Insurance Company Ltd.(2003(2) CTC 122) was relied on by the learned counsel appearing for the respondents only for the guidance emanate in the Judgment regarding the supervisory jurisdiction of this Court under Article 227 of the Constitution of India . The relevant observation is that "supervisory jurisdiction of High Court under Article 227 is confined only to see whether inferior Court or Tribunal had acted within its parameters and not to correct error apparent on face of record much less error of law. In exercising supervisory power, High court does not act as appellate Court. It is not permissible for High Court to review or re-weigh evidence upon which inferior Courts or Tribunals passed the order or to correct errors of law while exercising jurisdiction under Article 227."
18. In S.Rangarajan-vs- M/s Nathan's Foundations Pvt.Ltd rep. By its Managing Director(2007(3) CTC,662., the relevant observation for the purpose of deciding these revision petitions is as follows.
" The Apex Court in its Judgment reported in K.Venkata Subbiah-v- Chellappan, 2007 SCC 695 :AIR 2000 SC 3032 had categorically stated that invoking the constitutional remedy under Article 227 of Constitution of India should not be entertained when there is an efficacious alternative remedy of appeal provided under the Statute. In the present case the petitioners, without even contesting the I.A. and without exhausting the appeal remedy, have invoked the jurisdiction under Article 227 of the Constitution of India."
19. In D.Ramachandran-v- R.V.Janakiraman(AIR 1999 Supreme Court 1128), the relevant observation in the above Judgement runs as follows:
"On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A.No.36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII Rule 11(a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of O.VII R.11(a) C.P.C. cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under O.VII, R.11(a) C.P.C., the Court cannot dissect the pleading into several parts and consider whether each one of them disclose a cause of action. Under the rule, there cannot be a partial rejection of the plaint or petition. ..."
20. It is also pertinent to note at this juncture that the rent of Rs.5,000/- in each case has been paid by the plaintiff in both the cases and received by the defendant after the orders of this Court. Under such circumstances, when a remedy is open for the revision petitioner to agitate the maintainability of the suit before the trial Court and in the absence of any material to show that the plaintiff has no cause of action to file the suit, I am of the view that O.S.Nos.4153 and 4154 of 2007 are not liable to be dismissed at the threshold. The revision petitioner is entitled to raise all her objections in those suits by way of filing written statement.
21. With the above observations, these Civil Revision Petitions are dismissed. No costs. The Miscellaneous Petitions are also dismissed. The trial Court is directed to dispose of the suits within a period of two months from the date of receipt of a copy of this order. While disposing of the suits, the learned trial Judge shall not be carried away by any of the observation made by this Court in these civil revision petitions.
sg To
1.V Assistant Judge, City Civil Court, Chennai
2. The Section Officer, V.R.Section, High Court, Madras