Madras High Court
Chandra vs Reddappa Reddy on 10 June, 2011
Author: K.Mohan Ram
Bench: K.Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.06.2011 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Civil Revision Petition (PD) No.304 of 2009 and M.P.No.1 of 2009 Chandra ... Petitioner -Vs.- 1. Reddappa Reddy 2. Thulasi 3. Sargunam .. Respondents Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 18.12.2008 made in I.A.No.18228 of 2008 in O.S.No.3736 of 2000 on the file of the learned VIII Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr. S.V.Jayaraman, Senior Counsel, for, Mr. M.V.Rathnamani. For Respondents : Mr. M.Kamalanathan (Caveator), for R-1 - - - O R D E R
The first defendant in O.S.No.3736 of 2000 on the file of the learned VIII Assistant Judge, City Civil Court, Chennai, is the petitioner in the above Civil Revision Petition. The first respondent in the above Civil Revision Petition filed the said suit against the petitioner and respondents 2 and 3 for the following reliefs:-
A. for permanent injunction restraining the Defendants 1 and 3, their agents, servants, men, representatives or any body claiming through or from them not to interfere with the plaintiff's property in putting up Gate, Compound Wall, Development of the Plots, Usage of Plots in any manner the plaintiff wants for Plot Nos.21 and 22, II Street, Chockalingam Nagar Colony, Gopalapuram, Vellala Teynampet, Chennai 600 086 as morefully described in the schedule hereunder and thus render justice;
B. for the declaration that Clause 3 of the Partition Deed dated 29.10.1906 relating to drawing of water from the Well in Plot No.22, Gopalapuram, Vellala Teynampet, Chennai 600 086, as morefully described in the Schedule hereunder by using the irrigation method of Yetram, etc., to do cultivation is not value and cannot be enforced as it is hereby prohibited in the City of Chennai in view of the prohibition of cultivation in the City by Legislation and also by other laws and thus render justice.
2. The petitioner herein is contesting the suit by filing a detailed written statement, as follows:-
The petitioner earlier filed an application under Order 7 Rule 11 of the Civil Procedure Code in I.A.No.12277 of 2000 to reject the plaint on the ground that the suit is hit by res judicata and the said application was allowed, but on appeal, the order was set-aside and the further appeals to this Court and to the Apex Court were also dismissed. Thereafter, after framing of issues, the suit was taken up for trial. Proof affidavit of P.W.1 was filed and the trial was taken up for recording the evidence of the witnesses. When the suit was part heard, by virtue of the orders passed in the Transfer O.P.No.361 of 2006, the suit was transferred from the file of the V Assistant Judge, City Civil Court, Chennai, to the VIII Assistant Judge, City Civil Court, Chennai. On 19.02.2007, the plaintiff's side evidence was closed, after examining P.W.1. The witnesses on the side of the defendants were examined and their side of evidence was closed on 12.06.2007 and thereafter, matter was posted for arguments. On 09.07.2007, the plaintiff's counsel advanced his arguments and it was adjourned to 12.07.2007 and on that day, the defendants engaged a new counsel and he sought for an adjournment. Thereafter, by consent of both the parties, issue No.7 was recasted and additional issue was also framed. Thereafter, after four adjournments, the defendants filed an application for reception of a document which was allowed and the defendants were recalled and the documents were marked. In the meantime, an application was also filed by the first defendant to transfer the suit to some other Court. Therefore, the arguments could not be concluded. As the Presiding Officer got transferred, the Transfer O.P. was dismissed.
3. Thereafter, yet another application in I.A.No.13749 of 2008 was filed by the first respondent to recall P.W.1 and the same was allowed. It is seen that written arguments of both sides were also submitted during October 2007 itself. Without cross-examining P.W.1 after he was recalled, the first defendant / the petitioner herein filed the present application contending that the suit is barred by limitation and the relief claimed in the suit has not been properly valued and the 'B' Schedule has been under valued.
4. The first respondent by filing a detailed counter affidavit contested the application inter-alia contending as follows:-
The application has been filed at a belated stage when judgment is about to be pronounced and as such the application is not maintainable. Since in the suit, permanent injunction has been sought for and from the date of arising of cause of action, the suit has been filed within the period of limitation and the suit is not barred by limitation and there is continuing cause of action; the declaratory relief sought for is also not barred by limitation; since already the petitioner had filed I.A.No.12277 of 2000 and the same was dismissed and the order of dismissal has been confirmed by the Apex Court itself, the present application is hit by constructive res judicata. It was further contended that under Section 12 (2) of the Tamil Nadu Court Fee and Suit Valuation Act, 1955, the question of valuation of the suit and the Court fee payable should be raised even before the issues are framed and an application cannot be filed under Order 7 Rule 11 of the CPC on the ground of under valuation of the suit after the trial is over; the application has been filed only to further drag on the proceedings.
5. After considering the rival contentions, by a detailed order, the Court below has dismissed the application. Being aggrieved by that, the first defendant has filed the above Civil Revision Petition.
6. Heard the learned counsel on either side.
7. Mr. S.V.Jayaraman, learned senior counsel, appearing on behalf of the petitioner submitted that the plaintiff / the first respondent herein is a purchaser pentente lite and as such he cannot question the clause in the partition deed of the year 1906 after a century, when the parties to the partition deed have not chosen to challenge the same; as the suit has been filed in the year 2000, it is clearly barred by limitation; the earlier application under Order 7 Rule 11 CPC was filed on the ground that the suit is hit by res judicata and the same was dismissed; since the present application has been filed on the ground of limitation and under valuation, the same is maintainable. He further submitted that under Section 3 of the Limitation Act, it is incumbent on the part of the plaintiff to state and explain in the suit itself as to how the suit is within time and it is the duty of the Court before numbering the suit to find out as to whether the suit is within the period of limitation prescribed; when the court has failed to consider the question of limitation under Section 3 of the Limitation Act and has entertained the suit, it has become necessary for the petitioner to file a petition under Order 7 Rule 11 of the CPC. He further submitted that since the petitioner is seeking the relief of declaration, the property should have been valued as per the market value, but the plaintiff / the first respondent has under valued the suit and has paid the lesser court fee and therefore the petition is maintainable. According to the learned senior counsel, the above said aspects have not been properly considered by the Court below.
8. Countering the said submissions, Mr.M.Kamalanathan, learned counsel for the first respondent made the following submissions:-
The above Civil Revision Petition is not maintainable and only an appeal will lie as the order passed by the Court below dismissing an application filed under Order 7 Rule 11 of the CPC is a decree; the present application is an abuse of process of the Court; in support of the said contentions, the learned counsel based reliance on a decision of a learned single Judge of this Court reported in 2009 (5) CTC 627 (The Ootacamund Club v. H.S.Mehta). He further submitted that the application has been filed at a very belated stage i.e., after the conclusion of trial and just before the pronouncement of judgment and the suit was filed in the year 2000 and the application has been filed in the year 2008, much belatedly, and therefore, the application is not maintainable. In support of the said contention, the learned counsel based reliance on a decision reported in (2007) 10 Supreme Court Cases 59 (RAM PRAKASH GUPTA v. RAJIV KUMAR GUPTA). He further submitted that even if prayer 'B' is assumed to be barred by limitation, as far as prayer 'A' is concerned, the suit is not barred by limitation and the plaint cannot be rejected in part and therefore the application is not maintainable; even the question of limitation is a mixed question of law and facts and hence the same can be decided only after recording of evidence.
9. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
10. As the learned counsel for the first respondent has raised the question of maintainability of the above Civil Revision Petition, that question has to be decided first.
11. It is the contention of the learned counsel for the first respondent that the order passed by the Court below dismissing the petition filed under Order 7 Rule 11 of the CPC is a decree and therefore, only an appeal will lie, but not a revision. For the said contention, the learned counsel based reliance on the decision reported in 2009 (5) CTC 627 (referred to supra), wherein, the learned Single Judge of this Court has held as follows:-
"27. As far as remedy available to a defendant who got defeated in a petition seeking rejection of Plaint under Order 7, Rule 11 for not disclosing the cause of action is concerned, it is well settled that he has to prefer an Appeal since the said order would greatly prejudice the rights of the defendant who has to enter into ordeal of trial. The Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786 = 1981 (4) SCC 8, has held that an order refusing to reject the Plaint, even though it keeps the Suit alive undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a Larger Bench. It is concluded therein that the said order is appealable within the meaning of Clause 15 of Letters Patent since the decision by the Trial Judge has gone adversely to the defendant on the Application made by him for the rejection of Plaint for want of disclosure of cause of action besides an important aspect of the trial affecting very valuable right of the defendant and even though the Suit is kept alive such order has to be construed to be preliminary judgment. But the learned senior counsel appearing on behalf of the petitioner submitted that an order dismissing an application filed under Order 7 Rule 11 CPC will not come under the definition of "decree" as defined in Section 2 (2) of the CPC and therefore an appeal will not lie, but only a revision will lie.
12. In the decision reported in AIR 1981 SUPREME COURT 1786 (Shah Babulal Khimji v. Jayaben), which has been relied upon by the learned Single Judge for holding that an appeal will lie against an order dismissing an application under Order 7 Rule 11 CPC, but it has not been held that an order dismissing an application filed under Order 7 Rule 11 CPC will be a decree. In AIR 1981 SUPREME COURT 1786 (referred to supra) before the Apex Court, the correctness of an order dismissing an appeal filed under Clause 15 of the Letters Patent against an order dismissing an application for interim order by a learned Single Judge of the High Court was challenged. The question that arose for consideration before the Apex Court was whether the order rejecting an application for interim order in an application filed on the Original Side of the High Court is a judgment within the meaning of Clause 15 of the Letters Patent of the High Court. In answering that question, the Apex Court has held as follows:-
"123. In the instant case, as the order of the trial Judge was one refusing appointment of a receiver and grant of an ad interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, O.43 R.1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent...."
Basing reliance on the said decision, the learned Single Judge of this Court has held that since the decision by the Trial Judge has gone adversely to the defendant on the application made by him for the rejection of plaint for want of disclosure of cause of action besides an important aspect of the trial affecting the very valuable right of the defendant and even though the suit is kept alive such order has to be construed to be preliminary judgment and accordingly has held that an appeal will lie against such order. With great respect to the learned Judge, I am unable to agree with the said view for the following reasons.
13. As pointed out above, in the decision reported in AIR 1981 SUPREME COURT 1786 (referred to supra), what the Apex Court has decided is that an order dismissing an application for appointment of receiver and grant of injunction, pending the suit, by a learned Single Judge of the High Court exercising jurisdiction on the Original Side of the High Court, will be a judgment within the meaning of Clause 15 of the Letters Patent and the Hon 'ble Apex Court has not held that such an order will amount to a decree. Section 96 of the CPC provides for an appeal from original decrees. As per Section 96 of the CPC, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Therefore, unless the order rejecting an application filed under Order 7 Rule 11 CPC is held to be a decree, an appeal will not lie under Section 96 of the CPC. Order XLIII Rule 1 of the CPC provides for appeals from orders. As per Order XLIII of the CPC, an appeal is not provided for as against an order allowing or dismissing an application filed under Order 7 Rule 11 of the CPC. Thus it is clear that the order, which is impugned in the Civil Revision Petition, cannot be construed to be an appealable order. To maintain an appeal against the order impugned in the Civil Revision Petition, it should come within the definition of 'decree' as defined in Section 2 (2) of the CPC.
14. Section 2 (2) of the CPC reads as follows:-
"2. Definitions. -........
(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 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.
Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
A reading of the aforesaid provision makes it clear that an order rejecting a plaint shall be deemed to be a decree, but it has not been provided in the said section that an order dismissing an application to reject a plaint is deemed to be a decree. The word "deemed" is commonly used for creating a statutory fiction for extending the meaning to a subject-matter which it does not specifically designate. In the decision reported in the case of CIT v. Bombay Trust Corpon., AIR 1930 PC 54 : 57 IA 49 : 1930 LR 57 stated; "(W)hen a person is "deemed to be" something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament or the Legislature requires him to be treated as if he were.". In other words, whenever the word "deemed" is used in a statute in relation to a person or thing, it implies that the Legislature, after due consideration, exercised its judgment in conferring that status or attribute to a person or thing. A deeming provision may also be made to include what is obvious or uncertain or to impose an artificial extension of a word or phrase that would not otherwise be possible. An adjudication not fulfilling the requisites of Clause 2 of Section 2 of the Code cannot be said to be a "decree". By a legal fiction, however, certain orders and determinations are deemed to be "decree" within the meaning of Section 2(2). When a statutory fiction is created by a Legislature, it cannot be ignored. The effect of such legal fiction is that a position which otherwise is not present, it is deemed to be present under the specified circumstances. As stated above, Section 2 (2) of the Code specifically provides that rejection of a pliant shall be deemed to be a decree, but the Legislature has consciously not included the order dismissing an application for rejection of plaint filed under Order 7 Rule 11 of the CPC within the deeming provision and therefore, it is clear that an order seeking rejection of the plaint cannot be deemed to be a decree within the meaning of Section 2 (2) of the CPC. When an order cannot be deemed to be a decree under Section 2 (2) of the Code, though the order decides an important aspect of the trial affecting the very valuable right of the defendant, it cannot be held that an appeal will lie against such an order, especially when no appeal is provided against such an order under Order 43 CPC. Simply because, an order can be construed to be a judgment, an appeal will not lie and therefore, I am unable to agree with the view expressed by the learned Single Judge in the decision reported in 2009 (5) CTC 627 (referred to supra). Therefore, I am of the view that against the order impugned in the above revision, an appeal will not lie and therefore, the revision is maintainable.
15. Now the correctness and legality of the order passed by the Court below has to be considered in the light of the submissions made by the learned counsel on either side.
16. As far as the contention of the learned senior counsel appearing on behalf of the petitioner that the suit has been under valued and the lesser court fee has been paid and therefore the plaint has to be rejected is concerned, it has to be pointed out that the said contention cannot be countenanced in view of the provisions contained under Section 12 (2) of the Tamil Nadu Court Fee and Suit Valuation Act. Section 12 (2) of the Court Fees Act provides that the defendant should raise the objections questioning the valuation of the suit properties made by the plaintiff before the evidence is taken, so that it may be possible for the trial Court to consider the question whether the suit property has been properly valued or not and whether the court fees paid thereon is correct or not. The Court, under the provisions of Section 12 (2) of the Court Fees Act undertakes the exercise of ascertaining the value of the suit property to find out whether there was any deficit in the court fees paid by the plaintiff and that process could also be completed before the commencement of the trial of the suit. In other words, Section 12 (2) of the Court-Fees Act imposes a bar on the defendant to raise the question of valuation of the suit properties after the commencement of the trial of the suit. From the nature of the provision, it is clear that Section 12 (2) of the Court Fees Act is intended to operate against the defendant from questioning the valuation of the suit property at a later stage after the commencement of the trial. The provisions of Section 12 (2) of the Court Fees Act also gives a clue that the power should be exercised before the evidence is recorded, as a failure of the plaintiff either to carry out the amendment or to pay the deficit court fee would result in the rejection of the plaint. The object of the section is that after recording the entire evidence in the case, if the Court holds an enquiry as regards the valuation of the suit property and if the plaintiff, on the basis of enhanced valuation, does not carry out the plaint amendment or pay the deficit court fees, the entire exercise done by the Court in recording the evidence would become futile and stultification of the evidence already recorded. It is only with these objects in view, Section 12 (2) of the Court Fees Act insists that the statutory power should be exercised by the Court before the evidence is recorded. In this case, as pointed out above, admittedly, the entire evidence has been recorded, trial has concluded, arguments have been heard and judgment alone is to be pronounced and at this stage, the question of under valuation of the suit and payment of lesser court fee cannot be gone into. The reasoning of the Court below for rejecting the aforesaid contention put forth by the petitioner is well founded and therefore, the submissions made by the learned senior counsel in this regard cannot be countenanced.
17. As far as the question of limitation is concerned, as rightly contended by the learned counsel for the first respondent, as prayer 'A' in the plaint seeks a decree for permanent injunction restraining defendants 1 and 3, their agents, servants, men, representatives or any body from interfering with the plaintiff's property in putting up gate, compound wall, etc., and the suit has been filed within the period of limitation from the date of arising of cause of action, the relief for permanent injunction is not barred by limitation. When a part of the relief sought for in the plaint is within time and even if another part of the relief sought for in the plaint is barred by limitation, a plaint cannot be rejection in part. A plaint cannot be rejected in part is a well settled proposition of law. Therefore, the trial court is right in rejecting the application. Further, it has to be pointed out that it is also well settled that the question of limitation is a mixed question of law and fact and therefore that has to be decided only on the basis of the evidence adduced in the trial and therefore the trial court is right in rejecting the application.
18. Further, it has to be pointed out that admittedly, the petitioner had earlier filed I.A.No.12277 of 2000 under Order 7 Rule 11 of the CPC to reject the plaint on the ground that the suit is hit by res judicata and in that application, the question of limitation or under valuation of the suit has not been raised. The said application, though was allowed by the trial Court, was dismissed by the appellate court and the said order was confirmed by this Court as well as by the Apex Court. It is well settled that the principle of res judicata will apply not only to suits, but also to interlocutory applications. Therefore, the petitioner might and ought to have raised the plea of limitation and the payment of lesser court fee and under valuation of the suit in I.A.No.12277 of 2000 itself. Having failed to raise the said questions in that application, it is not permissible for the petitioner to raise the same in the present application as the principle of constructive res judicata will apply. On this ground also, the application is liable to be dismissed.
19. As rightly contended by the learned counsel for the first respondent, from the facts stated above, it is clear that the present application under Order 7 Rule 11 of the CPC has been filed at a very belated stage of the suit. Admittedly, the entire evidence has been recorded and the evidence has been closed, arguments have been heard and judgment is to be pronounced. At that stage, several other applications have been filed by the plaintiff to drag on the proceedings. When on an application filed by the plaintiff, P.W.1 has been recalled to enable the plaintiff to cross examine P.W.1, the present application has been filed. Therefore, at this belated stage, the application cannot be allowed. In the decision reported in (2007) 10 Supreme Court Cases 59 (referred to supra), the Apex Court has held that after filing of the written statement, framing of the issues including on limitation, evidence as led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 CPC seeking for rejection of the plaint was filed. In such circumstances, the Apex Court has held that the application cannot be entertained. In this case, the entire trial itself is over, arguments have been advanced, written submissions filed and judgment was to be delivered and therefore, this is a fit case where the trial Judge has correctly dismissed the application.
20. Therefore, for the aforesaid reasons, this Court do not find any reason to interfere with the order passed by the Court below. However, it is made clear that this Court has not expressed any opinion on the question of limitation as well as the question of court fee payable on the plaint.
21. For the aforesaid reasons, the above Civil Revision Petition fails and the same is dismissed. However, there will be no order as to costs. Consequently, the connected MP is closed.
srk To VIII Assistant Judge, City Civil Court, Chennai