Madras High Court
B.Rajamani vs N.Gunasekaran on 24 October, 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.7.2021
Delivered on : 30.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.(PD) No.3912 of 2016
and
C.M.P.Nos.20105 & 20106 of 2016
1. B.Rajamani
2. R.Selvaraj
3. R.Devaraj
4. R.Dharmaraj
5.R.Varadharaj Petitioners
Vs.
1. N.Gunasekaran
2. K.Varadharajan Respondents
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India to set aside the fair and decreetal order dated 24.10.2016 passed
in I.A.No.507 of 2016 in O.S.No.550 of 2016 on the file of the II
Additional Subordinate Judge, Coimbatore.
For Petitioners : Mr.Kandhan Duraisami
For Respondents : No appearance.
ORDER
(This case has been heard through video conference) The case was taken up on several occasions, heard the arguments of the learned counsel for the petitioners and adjourned the same for the arguments of the learned counsel for the respondents, however, https://www.mhc.tn.gov.in/judis/ 1/23 there had been no representation for the respondents for several occasions, despite the fact that they are represented by a learned counsel. Therefore, this court is inclined to decide the case on its merits after considering the submissions made by the learned counsel for the petitioners.
2. Challenging the order dated 24.10.2016 passed by the II Additional Subordinate Court, Coimbatore in I.A.No.507 of 2016 in O.S.No.550 of 2016 declining to reject the plaint, the Civil Revision Petition has been filed by defendants 3 to 7 in the suit.
3. The suit was filed for a permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties.
4. The case of the respondents/plaintiffs is as under:-
i) The suit properties originally belonged to one Ranga Konar and his wife Valliakkal on the basis of the sale deeds and pattas in their favour. Later, their sons Nanjappa Konar and Rangasamy Konar had succeeded the properties through a Will executed by their parents and they partitioned the suit properties and in such partition Nanjappa Konar had been allotted 'B' schedule property. Subsequently, the son of Nanjappa Konar, by name Subramaniam, had succeeded the said properties and he had executed a General Power of Attorney in favour of one S.Somasundaram. The said Somasundaram had sold item 1 of https://www.mhc.tn.gov.in/judis/ 2/23 the suit property to one A.C.Thambusamy by virtue of sale deed dated 8.6.1998 and items 2 and 3 of the suit properties had been sold to one S.K.Subramaniam by virtue of sale deed dated 8.6.1998 and item 4 of the suit property had been sold to one M.Velusamy by virtue of sale deed dated 5.6.1998.
ii) Later, the said A.C.Thambusamy, S.K.Subramaniam and Velusamy jointly executed a General Power of Attorney in favour of one R.Velusamy. The said Velusamy sold items 1 to 4 of the suit properties to the plaintiffs and thereby the plaintiffs have become the absolute owners.
iii) Defendants 3 to 7, legal heirs of the deceased defendants 1 and 2 attempted to interfere with the plaintiffs' possession and enjoyment claiming that they are the absolute owners of the suit properties and therefore, the plaintiffs had come up with the suit.
5. The case of the plaintiffs being thus, revision petitioners/defendants 3 to 7 have filed a petition under Order VII Rule 11 CPC. The crux of their contentions is as follows:-
i) The suit has been filed suppressing all the details about the suit properties. The suit properties originally belonged to one Nanjappa Konar. He had sold the same in the year 1936 itself to his first wife Marudhiakkal and since then, she was in possession and enjoyment of the suit properties. The said Marudhiakkal (mother) had settled the https://www.mhc.tn.gov.in/judis/ 3/23 suit properties in favour of her two daughters Marudhiakkal (daughter) and Saraswathi and later she died in the year 1939. Whileso, the second wife of Nanjappa Konar, by name Palaniammal and her sons, Rangasamy, Ramasamy, Seerangan and N.Subramaniam had forcefully taken possession of the suit properties in the year 1980.
ii) To recover possession from the abovesaid persons, Marudhiakkal and Saraswathi had filed O.S.No.195 of 1982 on the file of the Principal District Munisf, Coimbatore for declaration, recovery of possession and for injunction, which was decreed on 3.10.1983.
Challenging the same, the defendants therein had filed appeals in A.S.Nos.299 of 1983 and 329 of 1983 on the file of the Principal District Judge, Coimbatore, which were dismissed by a common judgment dated 29.5.1985. Subsequently, the Second Appeal in S.A.No.1538 of 1985 filed by the defendants before this court was also dismissed on 24.4.1987. Ultimately, the matter was taken up to the Hon'ble Supreme Court in S.L.P.No.1607 of 1988 which was also dismissed by order dated 16.7.1990. Thereafter, the plaintiffs therein viz., Marudhiakkal and Saraswathi had filed E.P.No.251 of 1993 on the file of the Principal District Munsif, Coimbatore. Whileso, the said Marudhiakkal died on 28.3.2000 and defendants 3 to 7 herein being her legal representatives were impleaded in the Execution Petition and they obtained possession of the suit properties by order dated 15.12.2003 https://www.mhc.tn.gov.in/judis/ 4/23 and possession has been handed over to them through Possession Receipt date 25.6.2012 and the petitioners have been in possession and enjoyment of the same.
iii) The factual aspects being thus, one of the defendants in O.S.No.195 of 1982 had executed a deed power of attorney on 2.5.1998 in favour of one Somasundaram suppressing all the above aspects with an intention to defeat the rights of the decree holders, especially when the Hon'ble Apex Court had dismissed the S.L.P. on 16.7.1990 itself confirming the judgment and decree passed in the suit.
iv) After dismissal of the above said SLP, another suit in O.S.No.1962 of 1990 was also filed on the file of the I Additional District Munsif, Coimbatore for bare injunction against the said Marudhiakkal and Saraswathi and two others, by some other persons allegedly at the instance of the defendants in O.S.No.195 of 1982 and the same was dismissed on 28.7.1991 and the judgment and decree came to be confirmed in S.A.No.1388 of 1994 by this court by judgment dated 18.11.1994.
v) Still another suit in O.S.No.35 of 1995 has been filed by the same plaintiffs for declaration and injunction by contending that the judgment and decree in O.S.No.195 of 1982 is not binding on them. As against the said suit, the said Marudhiakkal and Saraswathi had filed https://www.mhc.tn.gov.in/judis/ 5/23 C.R.P.No.1042 of 1997 to strike off the plaint in O.S.No.35 of 1995 and they succeeded and thereby the plaint in O.S.No.35 of 1995 was struck off.
vi) Whileso, suppressing all these litigations and the orders passed therein, one N.Subramanian, 5th defendant in O.S.No.195 of 1982 had filed another suit for declaration and permanent injunction in O.S.No.73 of 2007 on the file of the I Additional District Munsif against the revision petitioners herein and their predecessors in title.
vii) Again the revision petitioners herein and their predecessors in title had to file another C.R.P.(PD) No.1808 of 2007 before this court for striking of the plaint in O.S.No.73 of 2007 and this court, by order dated 21.4.2008, had struck off the plaint in O.S.No.73 of 2007.
viii) Now, once again the present suit in O.S.No.550 of 2016 has been filed by the respondents/plaintiffs herein claiming that they are the purchasers of the suit properties.
ix) The petitioners, setting out the above facts and grounds, had filed I.A.No.507 of 2016 under Order VII Rule 11 CPC seeking to reject the plaint.
x) The Trial Court had dismissed the said Application against which the present revision has been filed.
6. Mr.Kandhan Duraisamy, learned counsel appearing for the revision petitioners would submit that the suit in O.S.No.550 of 2016 is https://www.mhc.tn.gov.in/judis/ 6/23 barred by doctrine of res judicata since the petitioners and their predecessors filed O.S.No.195 of 1982 for declaration and recovery of possession and permanent injunction against the vendors N.Subramaniam and others and it was decreed by the Principal District Munsif, Coimbatore vide the judgment dated 3.10.1983 and the other side went on first Appeal wherein the Judgment and decree passed in the suit was confirmed by the Judgment and Decree dated 29.5.1985 in A.S.Nos.299 and 329 of 1983 and further, it was confirmed in S.A.No.1538 of 1985 and all those orders have been confirmed by the Hon'ble Supreme Court by order dated 16.7.1990 in Special Leave Appeal (C) No.1607 of 1988 and subsequently, by fair and final order dated 15.12.2003 in E.A.No.260 of 2003 in E.P.No.251 of 1993 in O.S.No.195 of 1982, the Principal District Munsif, Coimbatore ordered delivery of possession in favour of the revision petitioners herein and possession had been handed over to the petitioners through Possession Receipt dated 25.6.2012 and they had also taken possession of the same.
7. It is the further submission of the learned counsel for the petitioners that suppressing all these legal and factual aspects, the fifth defendant in the earlier suit in O.S.No.195 of 1982 viz., N.Subamaniam, again, filed O.S.No.73 of 2007 for declaration and injunction against the petitioners herein on the basis of a fabricated and unregistered Will https://www.mhc.tn.gov.in/judis/ 7/23 dated 12.12.1997 and thereafter, the plaint in O.S.No.73 of 2007 was struck off by this court by order dated 21.4.2008 in C.R.P.(PD) No.1808 of 2007, however, suppressing all the above aspects, the present suit in O.S.No.550 of 2016 has been filed based on the same fabricated Will.
8. The learned counsel for the revision petitioners would submit that the plaint does not disclose real cause of action and there is no cause of action for the respondents/plaintiffs to file the suit in view of the earlier rounds of litigation and the entire proceedings are vexatious and abuse of process of law in order to circumvent and defeat the orders passed by this court and the Hon'ble Supreme Court in the earlier round of litigations and that all the earlier proceedings in respect of the suit properties have reached finality as early as on 16.7.1990 and by the vexatious suit, the revision petitioners have been put to hardship, however, the Trial Court, without conducting proper enquiry, dismissed the petition seeking to reject the plaint.
9. The learned counsel for the petitioners would further submit that the object of Order VII Rule 11 CPC is that if a court satisfies that the suit is manifestly vexatious and not disclosing any right to sue, the court has to exercise its power to reject the plaint at the initial stage and the court has to read the averments in conjunction with the plaint as a whole without addition or subtraction of any words and in this case https://www.mhc.tn.gov.in/judis/ 8/23 if the averments made in the plaint are taken into consideration, they do not disclose any cause of action.
10. The learned counsel for the revision petitioners would submit that the powers under Order VII Rule 11 are mandatory in nature and if any of the grounds specified in clause (a) to (e) are made out, the court is bound to reject the plaint and the court has to find whether the plaint discloses a real cause of action or illusory cause of action created by clever drafting and the court must be vigilant against any camouflage or suppression and if the suit is found to be vexatious and abuse of process of court, it should exercise its drastic power under Order VII Rule 11 to reject the plaint. He would also submit that the law is settled that person coming to the court with false case, with the aid of false and fraudulent document, is not entitled to any enquiry, nor he is entitled to get any order in his favour and the law is settled that such cases should be thrown out even at the threshold and the court has also a duty to see that as far as possible, litigation is avoided, and multiplicity of proceedings are avoided, and when the court has such a power to grant relief, it should not close its eyes on technicalities. He would also submit that when the plaintiff has approached the court by committing suppression and fraud, the court can redress the grievance of the petitioner by exercising the power under Article 227 of the Constitution of India to strike off the plaint on the ground that it was https://www.mhc.tn.gov.in/judis/ 9/23 filed in abuse of process of court. He relied upon the decision in Renuka Devi v. D.Manoharan (1997 (III) CTC 567), in support of his contention. He would, therefore, pray that the revision may be allowed and the plaint may be rejected.
11. On perusal of the materials available in the light of the submissions made by the learned counsel for the petitioners, this court finds that the plaintiffs, during the enquiry of the Application, have produced nine documents from the year 1998 viz., General Power of Attorneys and sale deeds to contend that they are the genuine purchasers, whereas the revision petitioners have produced, apart from the documents viz., partition deed of the year 1929 to prove the succession of title, sale deed of the year 1936 standing in favour of the predecessor in title, Settlement deed of the year 1979 standing in favour of the predecessor in title, the orders passed by the courts below and the Hon'ble Apex Court in the previous round of litigations.
12. Of course, it is the settled law that a plaint can be rejected only on the basis of the weakness of the pleas therein and the documents annexed with the plaint. But, there cannot be any reason to disbelieve the orders passed by the courts of law in the previous round of litigation and the doctrine of res judicata cannot be brushed aside. Person coming to the court with false case, with the aid of false and fraudulent document, is not entitled to any enquiry, nor he is entitled to https://www.mhc.tn.gov.in/judis/ 10/23 get any order in his favour and the law is settled that such cases should be thrown out even at the threshold and the court has also a duty to see that as far as possible, litigation is avoided, and multiplicity of proceedings are avoid, and when the court has such a power to grant relief, it should not close its eyes on technicalities.
13. It would be apposite to take into consideration the decisions rendered by the Apex Court regarding the principles surrounding Order VII Rule 11 CPC. The Hon'ble Apex Court in Raghawendra Sharan Singh v. Ram Prasanna Sigh ((2020) 16 SCC 601), has held as under:-
" 6.3 While considering the scope and ambit of the application under Order 7 Rule 11 of the CPC, few decisions of this Court on Order 7 Rule 11 of the CPC are required to be referred to and considered.
6.4 In T. Arivandandam v. T.V.Satyapal (1977) 4 SCC 467 while considering the very same provision i.e. Order 7 Rule 11 of the CPC and the decree of the trial Court in considering such application, this Court in para 5 has observed and held as under:
“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of https://www.mhc.tn.gov.in/judis/ 11/23 the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember 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, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits.” 6.5 In Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 this Court in paras 13 has observed and held as under:
https://www.mhc.tn.gov.in/judis/ 12/23 “13. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the Plaintiff the right to relief against the Defendant. Every fact which is necessary for the Plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause of action must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue.” 6.6 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem (1989) 2 SCC 163, this Court explained the meaning of “cause of action” as follows:
“12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to https://www.mhc.tn.gov.in/judis/ 13/23 relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.” 6.7 In Sopan Sukhdeo Sable v. Charity Commissioner (2004) 3 SCC 137, in paras 11 and 12, this Court has observed as under:
“11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal (1998) 2 SCC 70, it was held that the basic question to be decided while dealing with an application filed under Order 7 https://www.mhc.tn.gov.in/judis/ 14/23 Rule 11 of the Code 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 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v.
T.V.Satyapal (1977) 4 SCC 467.” 6.8 In Madanuri Sri Rama Chandra Murthy v.
Syed Jalal (2017) 13 SCC 147), this Court has observed and held as under:
“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe https://www.mhc.tn.gov.in/judis/ 15/23 that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in https://www.mhc.tn.gov.in/judis/ 16/23 the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” 6.9 In Ram Singh v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation."
https://www.mhc.tn.gov.in/judis/ 17/23
14. Further in Dahiben v. Arvindhbai Kalyanji Bhanusali (Gajra) (D) thro. LRS and others ((2020) 7 SCC 366), it has been held as under:-
" 23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi (1986 Supp. SCC 315), this Court held that the whole purpose of conferment of powers under this provision https://www.mhc.tn.gov.in/judis/ 18/23 is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :
“12. …The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.” 23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the https://www.mhc.tn.gov.in/judis/ 19/23 averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law."
15. In Renuka Devi v. D.Manoharan (1997 (III) CTC 567), it has been held that in cases person coming to the court with false case, with the aid of false and fraudulent document, is not entitled to any enquiry, nor he is entitled to get any order in his favour and the law is settled that such cases should be thrown out even at the threshold and the court has also a duty to see that as far as possible, litigation is avoided, and multiplicity of proceedings are avoided, and when the court has such a power to grant relief, it should not close its eyes on technicalities and when the plaintiff has approached the court by committing suppression and fraud, the court can redress the grievance of the petitioner by exercising the power under Article 227 of the Constitution of India to strike off the plaint on the ground that it was filed in abuse of process of court.
16. Applying the law laid down in the aforesaid decisions, on exercise of powers under Order VII Rule 11 CPC to the facts of the case in hand and the averments in the plaint, it is seen that it is the case of the plaintiffs that they have filed the suit against the revision petitioners seeking for a permanent injunction. They have not sought for any declaration of title to the suit properties whereas the contentions of the https://www.mhc.tn.gov.in/judis/ 20/23 defendants is that the suit is hit by doctrine of res judicata and that indisputably, the Judgments/decrees/Orders relied on by the defendants would show that several rounds of litigations went on between the parties or their predecessors. The plaintiffs cannot plead ignorance of such litigations and claim that they are genuine and bona fide purchasers.
17. The earlier rounds of litigations that took place cannot be denied at all, however, a reading of the plaint shows that it does not disclose anything about such litigations. When several rounds of litigations could be found to have taken place while tracing the title to the suit properties, the plaintiffs cannot, simply ignore such disputes and file a suit for permanent injunction in simplicitor. Therefore, it is clear that the plaint does not contain a real cause of action and rather an illusory cause of action has been created by the clever drafting.
18. A perusal of the entire materials, it is clear that there had been a series of disputes between the predecessors of the present parties to the suit from the year 1983 itself and they had several lis in the past even upto the Hon'ble Apex Court, however, the predecessors of the plaintiffs alone have succeeded in all those litigations, but, still, the plaintiffs could not enjoy the fruits of the decrees and judgments they got in their favour because of the present round of litigation which should certainly be deprecated as it is nothing but old wine in new https://www.mhc.tn.gov.in/judis/ 21/23 bottle and if it is entertained, it would be sheer mockery of justice, however, the Trial Court, without considering all these aspects, has dismissed the petition seeking to reject the plaint.
19. For the foregoing reasons, this court is of the opinion that the learned Trial Judge has erred in not exercising the power under Order VII Rule 11 CPC and erred in not rejecting the plaint in exercise of powers under Order VII Rule 11 CPC. In view of the above, the impugned order passed by the II Additional Subordinate Judge, Coimbatore in I.A.No.507 of 2016 in O.S.No.550 of 2016 is set aside and consequently, the plaint stands rejected. The suit is dismissed. The civil revision petition is allowed. No costs. The connected Miscellaneous Petitions are closed.
30.07.2021 ssk.
Index: Yes/No. Internet: Yes/No. To II Additional Subordinate Judge, Coimbatore.
https://www.mhc.tn.gov.in/judis/ 22/23 A.D.JAGADISH CHANDIRA,J.
ssk.
P.D. ORDER IN C.R.P.(PD) No.3912 of 2016 and C.M.P.Nos.20105 & 20106 of 2016 Delivered on 30.07.2021 https://www.mhc.tn.gov.in/judis/ 23/23