Madras High Court
Pappu @ Pappammal vs S.Rathinam on 6 August, 2021
CRP(MD).No.1098 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 17.06.2021
Pronounced on : 06.08.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P. (MD).No.1098 of 2020 and
CMP(MD).No. 7114 of 2020
1. Pappu @ Pappammal
2. Selvi @ Vetriselvi
3. Ganesan
4. Vaira Eswari : Petitioners / Defendants 22 to 25
Vs.
1.S.Rathinam
2.R.Shanthi
3.K.Kalyani
4.Anusuya
5.S.Gunaseelan
6.John Sasikumar
7.Chithra
8.S.Gowtham
9.S.Gowri
10.M.Manokaran
11.Muthulakshmi
12.D.Selvi
13.Minor John
(rpe. By 12th respondent D.Selvi)
14.Baby
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CRP(MD).No.1098 of 2020
15.Sivaram
16.S.Elangovan
17.S.Nithya
18.P.Saravana Kumar
19.N.R.Krishnamoorthy
20. N.Chinnamayan
21.G.Balamurugan
22.G.Thirugnanasambanthan
23.F.Jesintha
24.M.Malarvizhi
25.O.Karuppayee
26.Valarmathi
27.Petchiammal
28.The Sub Registrar,
Sub Registrar Office,
Aundipatti.
29.Tahsildar,
Tahsildar Office,
Andipatti,
Theni District.
30.The District Collector,
District Collector Office,
Theni,
Theni District.
(R 5 to R30 given up)
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India to strike off the plaint in O.S.No.14 of 2019 on the
file of the Additional District Court, Theni.
For Petitioners : Mr.P. Shanmugam
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CRP(MD).No.1098 of 2020
For Respondents : Mr. J. Barathan
for Mr. M. Kaliraj
ORDER
The Civil Revision has been filed to strike off the plaint in O.S.No.14 of 2019 on the file of the Additional District Court, Theni.
2. The revision petitioners are the defendants 22 to 25. The respondents 1 to 4 / plaintiffs have laid the above suit in O.S.No.14 of 2019 against the respondents 5 to 25 / defendants 1 to 21, the revision petitioners / defendants 22 to 25 and the respondents 26 to 30 / defendants 26 to 30 for partition of the suit properties and allotment of 1/6 th share to the plaintiffs and for permanent injunction restraining the defendants 1 to 27 and their men from anyway alienating or encumbering the suit properties. The revision petitioners have filed their written statement and are contesting the suit. Pending suit, the defendants 22 to 25 have filed the present revision invoking Article 227 of the Constitution of India to strike off the plaint in O.S.No.14 of 2019 on the file of the Additional District Court, Theni.
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3. Admittedly, the revision petitioners have invoked neither order 7 Rule 11 CPC for rejection of the plaint nor Order 6 Rule 16 of CPC to strike off the pleadings. The plaintiffs have claimed partition in respect of three items of the suit properties. It is the specific contention of the revision petitioners that they have no right, title or interest over the first and third item of the suit properties and that they are concerned only with the 2nd item of the suit property. It is settled law that the plaint as a whole can be rejected but not in part under Order 7 Rule 11 CPC. It is necessary to refer the decision relied on by the learned counsel for the respondents:
i) Sejal Glass Limited Vs. Navilan Merchants Private Limited [2018 (11) SCC 780] :
“7. However, in Kalapu Pala Subramanayam v.
Tiguti Venkata Peddiraju a Single Judge referred to Venkata Rangiah Appa Rao V. Secy. Of State and then held that the suit was barred by time in respect of only certain items of property and not in respect of others. Despite this, it was held that since the plaint as a whole should have been rejected, the baby thrown out with the bathwater, and the entirety of the plaint and not merely the properties against which the suit could not proceed (as it was barred by limitation), was rejected.
8. We are afraid that this is a misreading of the 4/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 Madras High Court Judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action wold remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases, if the plaint survives against certain defendants and / or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.”
(ii) Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and another [2019 (7) SCC 158] :
“10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant (s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant (s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open 5/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and / or properties, Order 7 Rule 11(d) CPC will have no application at all, and the suit as a whole must then proceed to trial. "
4. In the case on hand, the revision petitioners have disputed the claim of the plaintiffs with respect to the 2nd item of the suit properties. Even assuming for the sake of arguments that the objections of the revision petitioners are to be upheld in respect of the second item of the suit property, as per the settled position of law above stated, the plaint cannot be rejected in respect of the claim with respect to the second item of the suit property and proceed the case with the other two items of the suit properties. Moreover, the revision petitioners have not shown any of the grounds contemplated under Order 7 Rule 11 CPC for rejecting the plaint. No doubt, if only a portion of the plaint, as opposed to the plaint as a whole is to be struck out, Order 6 Rule 16 CPC would apply. Order 6 Rule 16 CPC reads as follows:
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16. Striking out pleadings – The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading:-
(a) Which may be unnecessary, scandalous, frivolous or vexatious, or
(b) Which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) Which is otherwise an abuse of the process of the Court.”
5. As rightly contended by the learned counsel for the respondents, the revision petitioners have not raised any pleading to the effect that the pleadings in the plaint should be struck out on the ground that they are unnecessary, scandalous, frivolous or vexatious or that they may be tend to prejudice, embarrass or delay the fair trial of the case.
6. No doubt, the revision petitioners have attacked the plaint as the same is suffered by the principles of resjudicata, relitigation and abuse of process of law. The Hon'ble Supreme Court in K.K. Modi V. K.N.Modi and others reported in 1998 (3) SCC 573 has held that power under Order 6 Rule 16 CPC is to be exercised sparingly and only in special cases and after satisfying that there is no chance of the suit succeeding.
The relevant passage is extracted hereunder:
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42. Under Order 6 Rule 16, the Court may, at any stage of the proceeding, order to b e struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure. (15th Edition, Volume II, page 1179 note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of he process of Court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court"
thus: "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation........ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
44. One of the examples cited as an abuse of the process of court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which h as already been tried and decided earlier against him. The 8/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and t he court from being wasted. Undoubtedly, it is a matter of courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
7. In the case on hand, the revision petitioners have not shown that the abuse of process of the Court is manifest from the plaint itself nor shown any special circumstances which warrants the exercise of jurisdiction. Considering the above, as rightly contended by the learned counsel for the respondents, Order 6 Rule 16 CPC has no application at all.
8. As already pointed out, the revision petitioners have raised the pleas of resjudicata, estoppel and re-litigation and thereby, attempting 9/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 to make out a case of abusing the process of law. The main contention of the revision petitioners is that the the suit in O.S.No. 14 of 2019, is a third round of litigation and it is a re-litiagation and re-agitation of the issues, which have already been finally decided by the Courts of law and that the plaintiffs having no right, title or interest in S.No.892, admeasures 4.80 acres shown as the second item of the property, have filed the suit claiming shares therein.
9. It is their further contention that one Seenithevar, who is the father of the first plaintiff and grand father of the plaintiffs 2 to 4 has filed the suit in O.S.No. 354 of 1961 along with one Thangaraj against the Rasu Thevar, who is the father of the revision petitioners and one Thangammal for the reliefs of declaration and injunction in respect of the properties, which includes 46 Cents of land in S.No.892 shown as the second item of the suit property in the present suit and the suit was dismissed and the litigation was ended up to this Court, that subsequently Seeni Thevar and Rasu Thevar have entered into a settlement and compromised the matter before the Special Thasildar of Periyakulam, that the Special Thasildar has passed an order vide proceeding dated 24.12.1985 and on the basis of the 10/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 said order, separate pattas were ordered to be issued, that patta was issued in respect of the second item of the present suit property to Rasu Thevar to the extent of 4 Acres 20 Cents, that the said Seeni Thevar had no right, title or interest over the second item of the suit property and that the plaintiffs have suppressed the above material aspects and thereby, committed the fraud on the Court, which would amount to abuse of process of law. The defence of the plaintiffs is that the suit in O.S.No.354 of 1961 filed by Seeni Thevar and Thangaraj was dismissed by the District Munsif, Periyakulam on 06.10.1962, that the said Thangaraj and Seeni Thevar have filed an appeal in A.S.No.144 of 1962 before the Sub Court, Dindigul and the appeal was allowed on 30.09.1963, thereby, granting the relief of declaration of title and consequential injunction, that the Rasu Thevar and Thayammal have preferred the Second Appeal in S.A.No. 1023 of 1964 and the same was dismissed by this Court on 10.07.1964 and that the decree and Judgment granted in favour of Seeni Thevar and Thangaraj have attained finality.
10. It is their further contention that the civil suit can never be compromised before the revenue officials and can only be compromised 11/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 before the appropriate Court of law, that the patta is not a document of title and the same will not confer any right on the petitioners, that since the title of Seeni Thevar had already been upheld by this Court, the present revision filed by the revision petitioners claiming title on the basis of the patta is legally unsustainable and that since the plaintiffs have claimed the relief of partition in respect of the properties of Seeni Thevar, there is no question of re-litigation or abuse of process of law.
11. The respondents 1 to 4 have produced the copies of the Judgment passed in A.S.No.141 of 1962, dated 30.09.1963 on the file of the Sub Court, Dindigul and the Judgment passed in S.A.No.1023 of 1964, dated 10.07.1964 on the file of this Court and whereunder, it is clearly evident that the dismissal of the suit in O.S.No.354 of 1961 on the file of the District Munsif Court, Periyakulam, has been set aside by the Sub Court, Dindigul vide Judgment dated 30.09.1963 in A.S.No.144 of 1962 and thereby, decreeing the suit as prayed for by them and that the second appeal filed by Thayammal and Rasu Thevar in S.A.No.1023 of 1964 was ordered to be dismissed on 10.07.1964 confirming the decree and Judgment passed by the Appellate Court.
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12. As rightly contended by the respondents, since the Judgment and Decree granted in favour of Seeni Thevar has attained finality before this Court by the dismissal of the Second Appeal, the question of compromising or settling the matter before the Revenue Officials does not arise at all. As already pointed out, the revision petitioners have claimed the right and title over the second item of the suit property only on the basis of the patta alleged to have been issued by the Special Thasildar in pursuance of the proceeding dated 24.12.1985. Moreover, since the earlier suit proceedings were ended in favour of the plaintiff's predecessors-in-title and since the plaintiffs have filed the present suit for partition, the question of re-litigation or re-agitation does not arise at all. Though the petitioners have alleged that the suit is hit by the principles of resjudicata and estoppel, they have neither pleaded the necessary ingredients nor shown any materials to substantiate the same.
13. Moreover, the defence, on the basis of the principles of res judicata and estoppel are the aspects that require evidence for deciding the same and as such, they cannot considered as a ground or reason to 13/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 reject or struck off the plaint. Since the revision petitioners have suppressed the result of earlier appeal and Second Appeal proceedings and they have raised the pleas of re-litigation and re-agitation without any basis, this court is constrained to say that the revision petitioners have preferred the revision abusing the process of law.
14. No doubt, the learned counsel for the revision petitioners has relied on the decision of this Court reported in 2019 (2) MWN Civil 103 [Raahul Foundations Private Ltd., rep. by its Director Vs. S. Chandrababu and others] to show that a re-litigaiton is a clear abuse of process of law, which requires the plaint to be struck off. This Court in the said Judgment has specifically held that the powers under Article 227 of the Constitution of India has to be exercised sparingly and only in appropriate cases, where judicial conscience of this Court dictates it to act lest a gross failure of justice would occur and further observed that the facts involved in that case were a classic example where the process of law has been abused and could be considered as the rarest of rare cases where the powers under Article 227 of the Indian Constitution could be invoked for striking off the plaint. Hence, the above decision is in no way 14/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 help the case of the revision petitioners.
15. Considering the above, this Court concludes that the revision is absolutely devoid of merits and the same is liable to be dismissed.
16. In the result, the Civil Revision Petition is dismissed with cost of Rs.5,000/- (Rupees Five Thousand only) payable to the Legal Services Authority attached to the Madurai Bench of Madras High Court, within a period of four weeks from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petition is closed.
17. Registry is directed to post the matter after six weeks for reporting compliance.
06.08.2021 trp Index : yes / No Internet : yes / No 15/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 To The the Additional District Court, Theni.
16/17 https://www.mhc.tn.gov.in/judis/ CRP(MD).No.1098 of 2020 K.MURALI SHANKAR, J.
trp Pre-delivery order made in C.R.P. (MD).No.1098 of 2020 and CMP(MD).No. 7114 of 2020 06.08.2021 17/17 https://www.mhc.tn.gov.in/judis/