Madras High Court
St.Mary'S Matriculation Boys Higher vs Rajeev Bai on 16 February, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.2436 of 2008 and M.P.No.1 of 2008 St.Mary's Matriculation Boys Higher Secondary School, represented by its Secretary, Perambur, Chennai-11. ... Petitioner Vs. 1.Rajeev Bai 2.Arasu Bai 3.Vitto Bai ... Respondents Prayer: Petition filed under Article 227 of the Constitution of India against the fair and final order dated 09.06.2008 made in I.A.4956 of 2004 in O.S.No.12229 of 1996 on the file of the IV Assistant City Civil Court, Chennai. For Petitioner : Mr.V.Shanmugam Senior Counsel For Respondents : Mr.S.V.Jayaraman Senior Counsel for Mr.P.Jadeesan ORDER
The revision petitioner/Petitioner/Defendant has filed the present revision petition as against the order dated 09.06.2008 in I.A.No.4956/04 in O.S.No.12229/96 passed by the learned IV Assistant City Civil Judge in dismissing the application filed by the petitioner herein under Order VII Rule 11 (a) and (d) read with Section 151 of Civil Procedure Code.
2. The trial Court while passing orders in I.A.4956/04 has come to the conclusion that 'the plaint cannot be rejected and resultantly, dismissed the application.'
3.According to the learned counsel for the revision petitioner/Defendant, the trial Court has not appreciated of the fact that the respondents/Plaintiffs as per the Compromise decree dated 06.08.1953 are entitled to claim right in the entire suit property (plaintiffs' mother as limited estate owner) and the respondents/Plaintiffs as vested remainder holders) and further that the said property has been mortgaged by their father, the Natural Guardian and their mother being a limited estate owner on 31.10.1953 and on the basis of the mortgage decree obtained by the mortgagee, the property has been sold in public auction on 24.09.1954 and moreover, the Natural Guardian has mortgaged only the half share of their cousin and he has not obtained permission from the Court of Law for executing the mortgage on behalf of the respondents/plaintiffs and hence the mortgage and sale are null and void not on binding on the respondents/plaintiffs and that the respondents/plaintiffs are in joint possession of the property and are entitled to partition and separate possession of their half share and these averments of the plaint have not been taken note of by the trial Court and this has resulted in an erroneous order being passed by the trial Court.
4. The further contentions of the learned counsel for the revision petitioner are that a creation of an illusion of cause of action has been exposed by the respondents/plaintiffs own document and that the entire property has been mortgaged by the mother as limited estate owner and the father and the Natural Guardian on behalf of the minor plaintiff (vested remainder holder) and further that the alienation made by the Natural Guardian without getting permission from the Court of Law is only voidable and not void under Section 8(2) of the Hindu Minority Guardianship Act and the minor within three years on attaining majority has to initiate a suit for setting aside such alienation as per Art.60 of the Limitation Act and in law, a minor cannot seek for possession of such property without seeking the relief of setting aside the said alienation and inasmuch as the respondents/plaintiffs have not prayed for setting aside the alienations i.e., mortgage and the subsequent sale, the present suit is clearly barred by law as per Or.VII R.11 1 (d) of the Civil Procedure Code and as such, the plaint has to be rejected and that the trial Court has not borne in mind the legal position and that the trial Court has not given any reasoning for rejecting the relief sought for in the interlocutory application and that it has passed the impugned order without application of mind and even on the basis of the averments made in the plaint, the respondents/plaintiffs are not entitled to claim the reliefs prayed for in the suit and that the trial Court has passed the impugned order about seven months after the orders have been reserved in I.A.4956/04 and therefore prays for allowing the civil revision petition to prevent miscarriage of justice.
5. Continuing further, the learned counsel for the revision petitioner urges that inasmuch as the property of the minor plaintiff has been sold by their father as Natural Guardian then it is untenable to plead that the respondents/plaintiffs have the right to sue only after the death of their mother in the year 1992 as per Art.113 of the Limitation Act and also that since the suit is barred by law, to decide this issue, there is no need for any trial or evidence and further that the trial Court has not appreciated the scope of I.A.4956/04 and the matter in issues involved therein.
6. Expatiating his arguments, the learned counsel for the revision petitioner submits that the plaint averments are that under the settlement deed dated 02.03.1992 executed by the grandmother of the respondents/plaintiffs, the mother of the plaintiffs has been given a limited interest in half of the suit property and that the respondents/plaintiffs have been given the vested remainder in the said half share and in the other half of the suit property, the sister of the respondents/plaintiffs' mother has been given a limited interest and the children have been given the vested remainder in that half share and after the demise of plaintiffs' mother's sister, her only son has laid a civil suit O.S.1429 of 1952 on the file of the learned Principal Judge, City Civil Court, Chennai against the plaintiffs and their mother for partition and separate possession of his half share which he has obtained under the settlement deed and on 06.08.1953, a compromise decree has been passed in and by which on payment of Rs.4,000/- to the plaintiffs in that suit his half share has been given to the plaintiffs herein and the mother and a sum of Rs.4,000/- has been paid on 14.10.1953 and later, the plaintiffs parents (mother and father) mortgage the suit property and Gopalaswami Naicker as per document No.5 dated 21.10.1953 inquest to the plaint and that the said Gopalaswami Naicker has brought the property to sale by public auction on 24.09.2004 and Swaminatha Iyer has purchased the property and that the said sale is void in respect of the vested half share of the plaintiffs and that the said sale covers only the half share belonging to Sivaprakasam as per the compromise decree and that the plaintiffs parents have not obtained permission from the competent Court of Law either to mortgage the plaintiff's half share or to sell the same and this shows that the plaintiffs' right in one half share has not been mortgaged or sold in public auction and that later sale by the legal heirs of Swaminatha Iyer in favour of the defendant is equally void in respect of the plaintiffs half share and in fact the mortgage in favour of Gopalswami and later purchased by Swaminatha Iyer are all in regard to the half share belonging to Sivaprakasam and it has nothing to do with the vested interest in respect of half share in the suit property and that the sale in favour of the defendant dated 31.08.1978 executed by the legal heirs of Swaminatha Iyer is null and void etc., and further that Art. 60 of the Limitation Act applies to the respondents/plaintiffs and not the Art.113 of the Limitation Act and the present suit is filed after three years beginning from the date on which the Ward has attained majority and therefore the trial Court has not acted as per Or.VII R.11 of the Civil Procedure Code in discharge its duty at any stage of the suit, before the conclusion of the trial and therefore prays for allowing the Civi Revision Petition in the interest of justice.
7.In support of his contention that a suit should be filed by a minor within the period mentioned under Art.60 of the Limitation Act 1963, the learned counsel for the revision petitioner relies on the decision NANGALI AMMA BHAVANI AMMA V. GOPALAKRISHNAN NAIR AND OTHERS, (2204) 8 SUPREME COURT CASES 785, wherein the Honourable Supreme Court has held that 'Transaction entered into in violation of Section 8(2) of the Hindu Minority and Guardianship Act 1956 is only voidable at instance of minor and not void, in view of the express language of Section 8(3) and moreover holding such transaction to be void would deprive minor of right to affirm or ratify said transaction on attaining majority.' He also cites the decision NAGAPPAN V. AMMASAI GOUNDER AND OTHERS, (2004) 13 SUPREME COURT CASES 480, whereby the Honourable Supreme Court has observed that ' Where a minor was eo nomine party to the sale of his property effected without obtaining permission of Court under Section 8(2) of the Hindu Minority And Guardianship Act 1956, suit for possession of the property filed by him on attaining majority would be maintainable only if the same is preceded by his suit for cancellation of the sale deed.'
8.In regard to the plea that the respondents/plaintiffs have no cause of action for filing the present suit, the learned counsel for the revision petitioner/Defendant relies on the decision Y.A.AJIT V. SOFANA AJIT, (2007) 6 MLJ (SC) at pgs.1489 and 1490 wherein the Honourable Supreme Court has held as follows:-
'The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself . Compendiously the expression means every fact, which it would be necessry for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action."
The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a Tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in Court from another person. (BLACK'S LAW DICTIONARY a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In "WORDS AND PHRASES" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party to right to judicial interference on his behalf.' In the aforesaid decision, at paragraph 5, it is observed as follows:-
'5. In HALSBURY LAWS OF ENGLAND (Fourth Edition) it has been stated as follows:
"Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.' He further presses into service the decision VISHWAMBHAR AND OTHERS V. LAXMINARAYAN (DEAD) THROUGH LRS. AND ANOTHER, (2001) 6 SUPREME COURT CASES 163, wherein the Honourable Supreme Court has held as follows:
'Where plaintiffs had filed a suit for possession contending that sale deeds executed by their mother-guardian were void, inoperative and not binding on them as alienation had been affected without court permission under Section 8(2) and without legal necessity, but had added a prayer for setting aside the sale deeds only after the expiry of the limitation period under Art.60, held, the sale deeds were voidable under Section 8(3) subject to Art.60 of Limitation Act.' He also quotes the decision N.V.SRINIVASA MURTHY AND OTHERS V. MARIYAMMA (DEAD) BY PROPOSED LRS. AND OTHERS, (2005) 5 SUPREME COURT CASES 548 at pg.549 whereunder the Honourable Supreme Court has inter alia held that 'However, appellants neither claiming relief of declaration that original sale deed on the basis of which respondents had acquired title to suit property was a loan transaction, nor claiming specific performance of said agreement for reconveyance in earlier suit, claim to such reliefs was barred under Or.2 R.2 in a later suit.'
9.Yet another decision I.T.C. LIMITED V. THE DEBTS RECOVERY APPELLATE TRIBUNAL AND OTHERS, JUDGMENTS TODAY 1997 (10) S.C. 334 is relied on the side of the revision petitioner to the effect that 'mere fact that issues have been framed in the suit cannot come in the way of consideration of the application filed by appellant under Order 7 Rule 11 of Civil Procedure Code, etc.,'. Further in the aforesaid decision at pg.341, in para 17 it is mentioned as follows:-
'17. Question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 Civil Procedure Code. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. (See T.ARIVANDANDAM V. T.V.SATYAPAL & ANOTHER (1977 (4) SCC 467)' In paragraph No. 26 of the aforesaid decision, it is held as follows:-
'26.In the result we hold that an allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of 'fraud' as understood in this branch of the law and hence by merely characterising alleged non-movement of goods as 'fraud', the Bank cannot claim that there was a cause of action based on fraud or misrepresentation. Nor is the case before us one where there is an allegation of presentation of forged or fraudulent documents.' He also draws the attention of this Court to the decision A.SRINIVASA PAI AND ANOTHER V. SARASWATHI AMMAL ALIAS G. KAMALA BAI (1985) 4 SUPREME COURT CASES 85 wherein the Honourable Supreme Court has held that 'On a proper interpretation of the deed, even though the bequest to the widow may appear to be in absolute terms, she got only life interest and her son got interest in remainder and the son having got a vested interest in the land on the date of execution of the deed, that could not be defeated by his death before his obtaining possession and after his death, the property would devolve on his heir.'
10. Advancing the arguments, the learned counsel for the revision petitioner submits that except the two Judgments namely 1996 3 SUPREME COURT CASES pg.443, SOUTH EAST ASIA SHIPPING CO. LTD V. NAV BHARAT ENTERPRISES PVT. LTD AND OTHERS and 2004 (3) SUPREME COURT CASES 172,PEARLETE LINERS (P) LTD V. MANORAMA SIRSI, the trial Court has not mentioned the other Judgments cited in the course of its order passed in I.A.4956/04 dated 09.06.2008 and the trial Court has not discussed the four grounds mentioned in the written arguments filed by the revision petitioner and that in the simple mortgage deed dated 31.10.1953 in the schedule it is mentioned as 'storied house and ground Natham survey No.49 and Door No.13 Raghavachari Street, Sembirum, Perambur', comprised in Survey No.49 measuring 4= grounds and 45 sq. ft. and even in the plaint schedule in O.S.1229/96 on the file of the IV Assistant City Civil Court, Chennai the total extent is mentioned as 4 = grounds and 45 sq. ft. and that a decree has been passed in O.S.1429/1952 by the Principal City Civil Court, Chennai on 06.08.1953 and that the son of the other limited holder, after the demise of mother has filed a suit for partition and he has borrowed the amount and paid the same into the Court and to repay that amount, he got the mortgage executed and as far as the present case is concerned, the respondents/plaintiffs get right on the date of their birth and they get Vested Right and that they transferred and mortgaged and further that Section 19 of the Transfer of Property Act speaks of 'vested interest'. Moreover, Section 20 refers to 'When unborn person acquires vested interest on transfer for his benefit' and these aspect have not been looked into by the trial Court in a proper perspective and therefore prays for setting aside the order passed by the trial Court in I.A.4956/04 dated 09.06.2008.
11. It is to be pointed out that the 'vested interest' means immediate right to property. When immediate right of present enjoyment or present right of future enjoyment it is called 'vested interest'. Section does not apply unless there is transfer of property. As a matter of fact, transfer is complete in a vested interest. Whereas in contingent interest the transfer depends upon a condition precedent. If an event is uncertain it is contingent interest. But when condition refers to event which is certain to occur it is vested interest. In fact, as per Section 20 of the Transfer of Property Act 'there is no ban on the transfer of interest in favour of an unborn person'.
12. The learned counsel for the revision petitioner in support of his contention that the vested remainder is an immovable property relies on the decision of this Court BUDHIRAJU SEETHAYAMMA AND OHTERS V. VULLIPALEM AND OTHERS, AIR 1939 MADRAS 802, wherein it is held as follows:-
'A vested remainder is property and it is immovable property being an interest in land. It is therefore capable of being alienated by the holder of that interest or by anybody authorized by him to sell his immovable property.' He also cites the decision of the Honourable Supreme Court T.ARIVANDANDAM V. SATYAPAL AND ANOTHER, AIR 1977 SUPREME COURT 2421, wherein it is held that 'If on a meaningful -not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under O.7. R.11, Civil Procedure Code taking care to see that the ground mentined therein is fulfilled. The trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage, etc.,'. Further, he seeks in aid of the decision of the Honourable Supreme Court SOPAN SUKHDEO SABLE AND OTHERS V. ASSISTANT CHARITY COMMISSIONER AND OTHERS, (2004) 3 SUPREME COURT CASES 137 at pg.140 wherein it is held that 'The real object of Order 7 Rule 11 is to keep out of courts irresponsible law suits. Therefore, Order 10 Civil Procedure Code is a tool in the hands of the courts; and by resorting to it and by a searching examination of the party, in case the court is prima facie persuaded of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 can be exercised.' Added further, he cites the decision of the Honourable Supreme Court PEARLITE LINERS (P) LTD. V. MANORAMA SIRSI, (2004) 3 SUPREME COURT CASES 172 at pg.173, wherein it is observed that 'under Or. 7 R.11 (d) of Civil Procedure Code, the suit is bound to be dismissed for being barred by law and further should be thrown out at threshold.'
13. On the side of the revision petitioner, reliance is placed on the decision of the Honourable Supreme Court LIVERPOOL & LONDON S.P. & i ASSOCIATION LTD. V. M.V.SEA SUCCESS I AND ANOTHER, (2004) 9 SUPREME COURT CASES 512 at pg.517, wherein it is held that 'Whether plaint disclosed a cause of action is a question of fact to be determined by reading averments made in the plaint in their entirety and if averments made in the plaint or documents relied upon disclose a cause of action, plaint should not be rejected merely on the ground that the averments are not sufficient to prove the facts stated therein and for disposal of application under R.11(a), documents filed under R.14 must be taken into consideration.' Added further, reliance is also placed on the side of the revision petitioner to the decision HURRIS V. BROWN, (1901) ILR 28 CAL 621 to the effect that 'words are to be construed according to their ordinary meaning, and no particular form of words is necessary to effect a vesting.'
14.Per contra, the learned counsel for the respondents/Plaintiffs submits that in the present case plaint in O.S.12229/96 on the file of the Principal Judge, City Civil Court, Chennai is to be read as whole and there cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint and that the disputed questions cannot be decided at the time of considering an application filed under O.7 R.11 of Civil Procedure Code and a Court of Law is not supposed to adopt a pedantic approach to defeat the ends of justice and that suit cannot be dismissed without framing an issue or limitation and without taking any evidence and that the suit filed by the respondents/plaintiffs is prima facie in time and that in O.S.32 and 33 of 1944 on the file of Subordinate Court, Chengalpet, a decree has been passed in favour of the respondents/plaintiffs and Sivaprakasam, son of Suseelavathy Ammal and that the respondents/plaintiffs' vested right has been upheld by the Civil Court, etc., and that the mortgage in favour of Gopalswami Naicker and the subsequent purchaser by A.P.Swaminatha Iyer are all with reference to the half share belonging to Sivaprakasam for which he filed the suit and for which alone the money has been paid and it has nothing to do with vested interest in respect of half share of the plaintiffs in the suit property and that they are in constructive possession and the respondents/plaintiffs' mother expired in the year 1992 and thus the respondents/plaintiffs have become the absolute owners in respect of their half share in the suit property, since they have vested interest in the suit property and therefore the plaint cannot be rejected in law and that the averments of the plaint whether they are correct or not are all a mixed question of fact and law and it is open to the revision petitioner/defendant to raise all his defences during the trial of the main case and that the rules of limitation are not mean to destroy the rights of parties and therefore prays for dismissal of the civil revision petition.
15.The learned counsel for the respondents/plaintiffs cites the decision of the Honourable Supreme Court C.NATARAJAN V. ASHIM BAI AND ANOTHER, (2008) 1 MLJ 1278 (SC), wherein it is among other things observed that ' question of limitation is a mixed question of law and fact and the suit cannot be dismissed without framing an issue on limitation and taking evidence.' He also relies on the decision of this Court R.KARPOORASUNDARAPANDIAN V. RAJESWARI AND ANOTHER, 2006 (3) CTC 826, wherein it is observed that ' the question of limitation is mixed question of fact and law and on that ground pointing to the Limitation Act cannot and should not reject the plaint and whether the proper Court fee is paid or not and point of limitation has been left open to be decided at the time of final disposal of suit and that the plaint cannot be rejected before the trial.' Further he brings it to the notice of this Court the decision CORNING INCORPORATED REP. BY SANJAY KHAZONCHI AND OTHERS V. J.S.ASHOK KUMAR AND OTHERS, 2004 (1) TNLJ 249 at pg. 251, wherein it is observed as follows:-
'Rejection of plaint is sought for on the ground enumerated under Order 7 Rule 11(a) of the Code of Civil Procedure. It is a well settled position in law, as argued by the learned senior counsel for the plaintiffs, that whether there is cause of action or not has to be ascertained from the averments contained in the plaint (See A.I.R. 1984 Madras Pg.212 (DB) (S.Nagaraj Vs. S.Govindasamy & Another). Learned Brother Justice R.Jayasimha Babu, presiding over the Bench in the judgment reported in 2001-P.T.C. Pg.907 (Madras) (DB) (Premier Distilleries Private Limited Vs. Shashi Distilleries) had extracted in his judgment the leading case laws as to what is meant by 'cause of action'. It is worth extracting the portion extracted in the above referred to Judgment.
"4.As stated by Lord Esher in Read Vs. Brown, (1999) 22 Q.B.D. 128, cause of action means- Every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved. As stated even more vividly by Fry, L.J., in the same case, "Everything which, if not proved, gives the defendant an immediate right to judgment must be part of the cause of action.' In the aforesaid decision at pg.253, it is mentioned as follows:-
'.....If the averments contained in the plaint do disclose a cause of action, then it is a matter for evidence at the time of trial, to decide whether there is a passing off or not. (See the unreported Judgment dated 13.03.1995 in O.S.A.No.53/1995, High Court, Madras (DB)).'
16. On the side of the respondents/plaintiffs, reliance is placed on the decision M/S.RAJAM EXTRACTIONS LTD., V. NAGABOYINA PAKEERU, 2004 AIHC 4847, wherein it is held 'question of limitation is a mixed question of fact and law to be established by adducing necessary evidence at trial and order rejecting the plaint at threshold despite clear averments made in plaint on the ground that it is barred by limitation is liable to be set aside.'
17. Another decision KHAJA QUTHUBULLAH V. GOVERNMENT OF ANDHRA PRADESH AND OTHERS, AIR 1995 ANDHRA PRADESH at pg.43 is relied on the side of the respondents/plaintiffs to the effect that 'question of limitation in circumstances cannot be decided as preliminary issue.' Continuing further, the learned counsel for the respondents/plaintiffs cites the decision POPAT AND KOTECHA PROPERTY V. STATE BANK OF INDIA STAFF ASSOCIATION, (2005) 7 SUPREME COURT CASES 510, wherein the Honourable Supreme Court has held that ' Or.7 R.11 (d) of Civil Procedure Code applies only where the statement as made in the plaint without any doubt or dispute shows that suit is barred by any law in force and it does not apply in case of any disputed question.' He also relies on the decision MAYAR (H.K.) LTD. AND OTHERS V. OWNERS & PARTIES, VESSEL M.V.FORTUNE EXPRESS & OTHERS, 2006 AIR SCW 863, whereunder the Honourable Supreme Court has observed as follows:-
'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 O.7, R.11. Essentially, whether the plaint discloses a cause of action, 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 except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the instant case, the averments made in the plaint, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under O.7, R.11 cannot be exercised for rejection of the suit filed by the plaintiff appellants. Similarly, the Court could not have taken the aid of Section 10 of the Code for stay of the suit as there is no previously instituted suit pending in a competent Court between the parties raising directly and substantially the same issues as raised in the present suit.'
18. As far as the present case is concerned, the respondents/plaintiffs in their plaint at paragraph No. 7 has inter alia averred that the sale in favour of the defendant (revision petitioner) dated 31.08.1978 in document No.1963 executed by the legal heirs of A.P.Swaminatha Iyer is null and void and not binding on them in respect of their half share in the suit property and that the defendant (revision petitioner) is not the absolute owner of the property, etc., and therefore they have filed the suit for partition of the suit property for allotment of one share to them.
19.On going through the order passed in I.A.12229/96 dated 09.06.2008, this Court opines that the trial Court has not dealt with the matters in issue in a proper perspective and in an appreciable manner.
20.On a careful consideration of respective contentions and in the light of the detailed discussions and because of the fact that the averments of the plaint in the present suit on hand proceeds on some purported cause of action which requires an indepth determination by the trial Court, are a mixed question of fact and law to be established by means of oral and documentary evidence (since the parties have taken a divergent stand), besides raising contentions legal and factual issues in the considered opinion of this Court and therefore this Court, on the basis of Equity, Fair play, as an Equitable remedy and even as per law, without going into the merits of the matter directs the trial Court viz., IV Assistant City Civil Court, Chennai to dispose of the main suit O.S.No.12229 of 1996 within a period of four months from the date of receipt of a copy of this order in accordance with well settled principles of law and to report compliance to this Court and inasmuch as Article 227 of the Constitution of India has to be sparingly exercised by this Court, this Court is of the considered view that the revision petitioner cannot seek in aid of the supervisory, discretionary jurisdiction of this Court under Article 227 of the Constitution of India based on the overall assessment of the facts and cumulative attendant circumstances of the case. It is open to the revision petitioner/defendant to raise all factual and legal contentions before the trial Court including the plea of maintainability of the suit in accordance with law.
21.Accordingly, the civil revision petition is disposed of in above terms. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
vri To The IV Assistant City Civil Court, Chennai