Madras High Court
C. Valliappa vs H. Syed Abuthakir on 3 February, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 3/2/2015
CORAM
THE HON?BLE TMT. JUSTICE PUSHPA SATHYANARAYANA
CRP.PD(MD) No. 2233 of 2014
and
M.P. (MD) No. 1 of 2014
C. Valliappa ..
Petitioner
Vs.
1. H. Syed Abuthakir
2. K. Manikanda Raja .. Respondents
PRAYER
Petition filed under Article 227 of Constitution of India to strike
off the plaint filed in O.S. No. 488 of 2014 on the file of the Principal
District Munsif, Tiruchirapalli.
For Petitioner : Mr.A.Arumugam
for M/s.Ajmal Associates
For Respondents : Mr.V.R.Shanmuganathan
for Mr.A.L.Kannan for R.1
Mr.M.S.Jeyakarthick for R.2.
:ORDER
(Orders reserved on 8/1/2015) The second defendant in O.S. No. 488 of 2014 on the file of the Principal District Munsif, Tiruchirapalli, has come up with the instant Civil Revision petition invoking Article 227 of the Constitution of India seeking to strike off the plaint in the above suit. The revision has been filed under Article 227 of the Constitution of India to strike off the plaint as abuse of process of Court.
2. The first respondent herein as plaintiff has instituted the Original Suit No. 488 of 2014 on the file of the Court of Principal District Munsif, Tiruchirapalli, praying to declare the registered Cancellation of the Settlement Deed dated 06.02.2014 and also the registered Cancellation of Power of Attorney Deed in Document Nos. 486 of 2014 and 487 of 2014 respectively registered in the office of Sub Registrar, K. Sathanur, as invalid, null and void, illegal, unenforceable, non-est and not binding on him; for permanent injunction restraining the defendants, their men, agents, servants or anybody claiming under them or associated with them from interfering with his peaceful possession and enjoyment in respect of the suit property in any manner whatsoever and also for costs.
3. The case of the revision petitioner, who is the second defendant in the suit, is that originally the suit property, to an extent of 11.69 Cents, belonged to one Meenakshi Achi who had sold the same to one Karuppaiah, father of the first defendant, by way of an unregistered sale deed dated 16.12.1986. The said Karuppaiah, on 18.4.2011, had settled the property in favour of his son, viz., first defendant, who had executed a sale agreement on 12.4.2012 in favour of the plaintiff for a sum of Rs.80 lakhs fixing three months? time for executing the sale deed. On 23.10.2013, a sale receipt was issued to the plaintiff and on the very same day, a General Power of Attorney was executed by the first defendant and handed over possession of the property. While so, on 06.02.2014, the said power deed and the settlement deed were cancelled by way of cancellation of Settlement deed.
4. From the materials available on record, it is seen that the revision petitioner is the second defendant, who is the son of the original owner Meenakshi Achi. As the present plaint is filed questioning the Cancellation of the Settlement Deed as well as the Cancellation of the Power of Attorney Deed dated 06.02.2014, the petitioner has filed the present revision petition raising the following grounds:-
(a) Having entered into the agreement, the plaintiff ought to have filed only a suit for specific performance against the first defendant;
(b) The sale agreement or the Power of Attorney does not create an interest in immovable property;
(c) Whether the Power of Attorney can challenge the cancellation of the power deed when the principal can cancel the power without assigning any reasons;
(d) The possession of the plaintiff pursuant to the Power of Attorney is not valid and hence, he cannot seek for injunction; and
(e) A second suit for specific performance would be barred under Order II Rule 2 CPC.
On the above grounds, the petitioner seeks to strike off the plaint under Article 227 of the Constitution of India as the suit in O.S. No. 488 of 2014 filed by the plaintiff, is an abuse of process of Court.
5. Challenging the Revision Petition, learned counsel appearing for the first respondent / plaintiff contended that the Civil Revision Petition is not maintainable and it has to be dismissed in limine as the revision petitioner is having an alternative remedy under Order VII Rule 11 CPC. It is the main contention of the learned counsel that when the petitioner is having an alternative remedy, he cannot be permitted to invoke the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India. It is contended by the learned counsel that even presuming that the sale deed dated 16.12.1986 was unregistered, the said Karuppaiah who was put in possession on 16.12.1986 has been in un-interrupted possession perfecting title and even the revenue records have been transferred in the name of the said Karuppaiah. While so, according to the learned counsel, the said Karuppaiah died on 13.7.2011 subsequent to which, his son, viz., the second respondent, had entered into a sale agreement with the first respondent on 12.4.2012 and the entire sale consideration was also paid for which a receipt was issued on 23.10.2013. The contention of the learned counsel for the first respondent is that the power of attorney of the revision petitioner approached the second respondent and obtained signatures in blank stamp papers and blank white papers under threat and coercion and later on, only on verification of the documents, it was found that two documents in document Nos. 486 and 487 of 2014 were executed cancelling the registered settlement deed dated 18.4.2011 in favour of the second defendant and another document, ie., the registered power of attorney dated 23.10.2013, was also found cancelled. It was also contended by the learned counsel for the first respondent that the settlement deed could not have been cancelled by the settlee after the death of the settlor which is impermissible in law. Contending further that the power of attorney was also cancelled without notice to the power agent, he sought for dismissal of the petition.
6. Heard the learned counsel appearing for the parties and perused the records.
7. It is true that Meenakshi Achi was the original owner of the suit property who had executed the unregistered sale deed in favour of Karuppaiah on 16.12.1986. It is also not in dispute that from the date of the said sale, Karuppaiah has been in possession of the property. The second respondent is the son of the said Karuppaiah on whom the registered sale deed dated 18.04.2011 was executed. Pursuant to the settlement deed, the revenue records have been transferred in the name of the second respondent. Further, the facts are admitted by both the parties. Now the only question that has to be seen is whether the plaint has to be struck of on the ground of maintainability of suit.
8. At the outset, the contention of the learned counsel appearing for the petitioner that the plaintiff ought to have filed only a suit for specific performance based on the sale agreement, cannot be accepted. Admittedly, any suit that would be filed for specific performance would be time barred. The main contention of the learned counsel for the petitioner is that the sale in favour of Karuppaiah on 16.12.1986 is unregistered and, therefore, the said sale is invalid as no title could pass under the said document. When the title does not pass under the sale deed dated 16.12.1986, the other documents executed by the said Karuppaiah based on the same, are also not enforceable as no right or title pass to the settlee. While so, even the agreement dated 12.4.2012 by the second respondent is without any saleable interest in the property. According to the learned counsel for the petitioner, the plaint containing all these above facts has to be struck of.
9. In support of his contention, learned counsel for the revision petitioner pressed into service the decision of this Court in The General Secretary vs. Socialist Workers Forum and another [2010 (3) CTC 430].
10. I have considered the above decision relied on by the learned counsel for the petitioner. In the above decision, the suit was filed for permanent injunction restraining the defendants from conducting election to various offices in a Trade Union according to the amended bye-law of the Union. The very amendment was under challenge. The trial Court refused to grant interim injunction but directed the conduct of the elections and when the same was challenged in revision under Article 227 of the Constitution of India, it was dismissed as the order challenged could be subjected to legal process as per the provisions of the CPC as alternative remedy was available. It was also held that Article 227 of the Constitution of India can be invoked only in certain extra-ordinary or special circumstances arising due to want of jurisdiction, grave errors of law, perverse findings, or when there is gross violation of principles of natural justice.
11. Learned counsel further drew the attention of this Court to the decision in southern and Rajamani Transport Private Limited vs. R.Srinivasan and others [2010 (4) CTC 690] and more particularly relied on paragraph 32 of the judgment, which reads as follows:-
?It has already been assorted the circumstances under which Article 227 of the Constitution of India can be invoked by a High Court. In the instant case, a grave injustice has been done to the revision petitioners/defendants 1, 2, 3, 5, 6, 8 to 24 and 26 to 37 by way of impleading them as parties to Original Suit No.3 of 2010, even though there is no nexus betwixt them and the first respondent /plaintiff. Of course it is true that an efficacious relief is available under Order 7 Rule 11 of the Code of Civil Procedure, 1908. But at the same time, since miscarriage of justice as well as injustice have been caused to the revision petitioners /defendants 1, 2, 3, 5, 6, 8 to 24 and 26 to 37, their approach by way of filing the present civil revision petition to the High Court so as to ventilate their grievance is legally maintainable. Therefore, viewing from any angle, the entire argument advanced by the learned counsel appearing for the first respondent/plaintiff is sans merit, whereas the argument advanced by the learned Senior Counsel appearing for the revision petitioners /defendants 1, 2, 3, 5, 6, 8 to 24 and 26 to 37 is really having subsisting force.?
12. The above cited decision may not applicable to the present set of facts as the points involved in the suit are yet to be decided.
13. On the other hand, learned counsel appearing for the respondents relied on the decision in Ganapathy Subramanian vs. S. Ramalingam and 23 others [2007 (3) LW 515] and submitted that the supervisory jurisdiction of this Court could be invoked only when the trial Court has committed any error and referred to paragraph 16 of the judgment, which is re-produced below:-
?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 facto 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.?
14. Learned counsel for the respondents brings to the notice of this Court the decision in V. Krishnamoorthy vs. Balakrishnan and another [2011 ? 2 ? L.W. 45] wherein, among other things, held, in paragraph 12, thus:-
?The Court has to see whether the filing of the suit in O.S. No. 248 of 2009 by the 1st respondent is abuse of process of Court. It is stated by the petitioner that the suit is not maintainable since the property in dispute was purchased by the 1st respondent from the 2nd respondent during the pendency of the execution petition but it is contended by the 1st respondent that he had no knowledge about the suit and the execution proceedings filed by this petitioner. It is well settled that contentious issues or facts cannot be discussed and dealt in the petition filed under Article 227 of the Constitution. When alternative remedy of filing petition under Order 7 Rule 11 of CPC is available to the petitioner, for rejection of plaint before the trial Court, when the matter has to be dealt with reference to facts, this Court can refuse to exercise jurisdiction under Article 227.?
15. From the facts and circumstances of the case, it is clear that Article 227 of the Constitution of India can be exercised only when an order is passed without jurisdiction, or perverse, etc. From the above set of facts, the court cannot consider the merits and demerits of the case without trial. The merits of the case also cannot be gone into in a revision under Article 227 of Constitution of India when the same are matter of evidence. If the petitioner is aggrieved by the institution of the suit, it is open to him to file an application under Order VII Rule 11 CPC. When the petitioner can establish that the suit will come under any of the six limbs set out under Order VII Rule 11 CPC, he or she may ask the Court to reject the plaint on the grounds enumerated therein. In the case on hand, when there are facts which have to be proved in the manner known to law, with the mere data, the merits of the case cannot be discussed and the suit can be struck off. The revision petitioner who is son of the original owner Meenakshi Ammal having slept over the matter for more than two decades, is now taking advantage of his own inaction and has filed this petition to reject the plaint. If this Court finds that the jurisdiction was not exercised by trial Court properly or if it has exceeded the jurisdiction or if the suit is not found maintainable, it can exercise such power. At the cost of repetition, it is reiterated that the fact of maintainability of the suit cannot be decided by this Court in this revision which involves dealing with merits and demerits of the case by the trial Court. I am of the considered view that Article 227 of the Constitution of India cannot be invoked as there is no order passed in the suit and the fate of the case have to be decided only after trial. Therefore, the petitioner cannot find shy of contesting the suit and ask for rejecting the plaint invoking Order VII Rule 11 CPC.
16. In view of the foregoing discussion, the revision petition cannot be sustained and is liable to be dismissed. Accordingly, the same is dismissed. But in the circumstances of the case, there shall be no order as to costs.
3/2/2015
Index : Yes
Website : Yes
gri/mvs.
To
The Principal District Munsif, Tiruchirapalli.
PUSHPA SATHYANARAYANA, J.
gri/mvs.
Pre-Delivery order in
C.R.P. (PD) No. 2233 of 2014
Delivered on
3/2/2015