Madras High Court
V.Venkatasamy vs S.Lakshmi on 11 September, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.09.2014 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).No.2277 of 2014 and M.P.No.1 of 2014 V.Venkatasamy .. Petitioner Vs. 1.S.Lakshmi 2.Indira Venkatasamy 3.Sophia Parveen W/o.A.Habibur Rehman Rep. by her power agent K.Narayanan No.8, Nandhi Loop street West CIT Nagar, Chennai-35. 4.Habibur Rehman 5.K.Narayanan .. Respondents Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of India, to direct the trial Court to return the plaint in O.S.No.3 of 2012 on the file of the District Munsif Court, Thirukazhukundram. For Petitioner : Mr.S.Muthudurai For R1 : Mr.S.Ramesh O R D E R
Civil Revision Petition is filed seeking direction to the trial Court to return the plaint in O.S.No.3 of 2012 on the file of the District Munsif Court, Thirukazhukundram.
2.The first respondent herein as a plaintiff filed a suit for setting aside the decree passed in C.S.No.287 of 2009 dated 24.04.2009 vitiated by fraud and not binding on the plaintiff and setting aside the alleged sale deed dated 08.04.2010 executed in document No.1711 of 2010 on the file of the Sub-Registrar's Office, Thiruporur as vitiated by fraud, collusion, void ab-initio and not binding on the plaintiff and to declare that the plaintiff is an absolute owner of the suit schedule property and consequential injunction.
3.Learned counsel for the revision petitioner would submit that the revision petitioner/first defendant has filed C.S.No.287 of 2009 on 19.02.2009 against the third respondent herein stating that he entered into a sale agreement with Sophia Parveen/third respondent herein on 30.08.1994 and that the revision petitioner has obtained consented decree on 24.04.2009 and that Sophia Parveen, who is represented by her power agent K.Narayanan, executed the sale deed on 08.04.2010, from which date, the revision petitioner is in possession and enjoyment of the property. Now the first respondent herein as a plaintiff filed the present suit in O.S.No.3 of 2012 on the file of the District Munsif Court-cum-Judicial Magistrate Court, Thirukazhukundram for setting aside the decree and judgment passed by this Court in C.S.No.287 of 2009 dated 24.04.2009. It is further submitted that the District Munsif-cum-Judicial Magistrate's Court, Thirukazhukundram has no pecuniary jurisdiction to entertain the suit. Once the sale deed has been executed, it relates back to the date of sale agreement and so the documents executed between 30.08.1994 to 08.04.2010 are non est in the eye of law. To substantiate his arguments, he relied upon the decision of the Bombay High Court reported in AIR 1996 Bombay 296 (Prataprai Trambaklal Mehta v. Jayant Nemchand Shah and others etc.) and prayed for direction to the trial Court to return the plaint in O.S.No.3 of 2012. He fairly conceded that he has not filed any application before the trial Court to return the plaint.
4.Resisting the same, learned counsel for the first respondent submitted that the revision petitioner herein has already filed a revision petition in C.R.P.No.1669 of 2012 for the same relief before this Court disputing the jurisdiction of the Court as well as suit valuation and Court fee before the trial Court and the District Munsif Court, Thirukazhukundram has no pecuniary jurisdiction to entertain the suit, since the value of the property in the sale deed is Rs.11,00,000/-. By an order dated, 16.10.2012, this Court has held that the District Munsif Court, Thirukazhukundram has jurisdiction to entertain the suit and while dismissing the C.R.P., liberty has been given to the first defendant/revision petitioner to file an application in respect of valuation of the suit and payment of Court fee. He further submitted that the property is situated within territorial jurisdiction of the District Munsif Court, Thirukazhukundram. Hence, with a view to drag on the proceedings, the petition has been filed by the revision petitioner. Therefore, he prayed for dismissal of the revision petition.
5.Considered the rival submissions made on both sides and perused the typed set of papers.
6.The prayer in this revision petition is as follows:
.. .. to direct the return of plaint pending on the file of the District Munsif Court at Thirukkalukundram in O.S.No.3 of 2012 for being filed in proper Court.
7.Now it is appropriate to incorporate Order VII Rule 10 of C.P.C., which is as follows:
10. Return of plaint (1) [Subject to the provisions of rule 10A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
[Explanation.For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.] (2) Procedure on returning plaintOn returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
8.Admittedly, this revision petition has not been filed on the basis of the order passed by the trial Court filed under Order VII Rule 10 of C.P.C. But the revision has been filed by invoking Article 227 of the Constitution of India directing the trial Court to return the plaint and to present the same before the appropriate forum.
9.As per the decision of the Apex Court reported in AIR 2000 SUPREME COURT 3032 : (2000) 7 Supreme Court Cases 695, A.Venkatasubbiah Naidu v. S.Chellappan and Others, it was held that once an alternative remedy is available, the High Court should not entertain the petition under Article 227 of the Constitution. It is appropriate to incorporate paragraph 20 of the said decision:
20. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition.
10.In view of the above said dictum, the first defendant/revision petitioner ought to have approached the concerned Court as per Order VII Rule 10 of C.P.C. Admittedly, the revision petitioner has not approached as stated above. So prima facie I am of the view the revision petition itself is not maintainable.
11.Now this Court has to decide whether there is any merits in the case? The property is originally owned by Sophia Parveen. The case of the revision petitioner is that the sale agreement was entered into between him and Sophia Parveen on 30.08.1994. The revision petitioner has filed C.S.No.287 of 2009 against Sophia Parveen/third respondent herein, who was represented by the power agent K.Narayanan and on 24.04.2009, a consented decree has been passed and in pursuance of the same, the sale deed was executed on 08.04.2010.
12.According to the learned counsel for the revision petitioner, as per the decision of the AIR 1996 Bombay 296 (Prataprai Trambaklal Mehta v. Jayant Nemchand Shah and others etc.), in para-13, wherein it has been held that once the sale deed has been executed, it is related back to the date of sale agreement on which the suit is based. The conveyance registered between interregnum period is non est in the eye of law. According to the revision petitioner, sale agreement was executed on 30.08.1994, but whereas in the plaint in O.S.No.3 of 2012, it was stated that Sophia Parveen sold the property on 26.10.1994 to one Sanjiappa, who in turn, sold the same in favour of Lakshmi Ammal on 24.03.2004 and 31.05.2004. It is an admitted fact that on the date of filing C.S.No.287 of 2009 on 19.02.2009, the above three sale deeds came into existence in respect of the suit property and those subsequent purchasers were not added as parties to the earlier suit in C.S.No.287 of 2009. Hence, prima facie, the decree is not binding upon the subsequent purchasers. So the decision relied upon by the learned counsel for the revision petitioner is not applicable to the facts of the present case.
13.This Court has to decide that once the decree has been passed by the High Court, whether the Munsif-cum-Judicial Magistrate has locustandi to decide the matter as to whether the decree passed by the High Court has to be set aside? It is pertinent to note that in the earlier revision in C.R.P.No.1669 of 2012, dated 16.10.2012, in para-3, the revision petitioner raised the point as raised herein and in para-11, the learned Single Judge has given his findings by holding that the trial Court has jurisdiction to entertain the same. It is admitted by the revision petitioner that the property is situated within the jurisdiction of the District Munsif Court-cum-Judicial Magistrate Court, Thirukazhukundram.
14.As stated supra, as per the order of this Court in C.R.P.No.1669 of 2012, dated 16.10.2012, the District Munsif-Judicial Magistrate Court, Thirukazhukundram is having jurisdiction to entertain the suit and also the suit property is situated within the jurisdiction of the District Munsif-cum-Judicial Magistrate Court, Thirukazhukundram, hence there is no reason for returning the plaint. So I am of the view, the revision petitioner with a view to drag on the proceedings filed this revision, which is merely abuse of process of the Court. So the action of the revision petitioner is not appreciable and hence, this revision petition deserves to be dismissed as devoid of merits and it is hereby dismissed with costs.
15.In the result, the Civil Revision Petition is dismissed with costs. The revision petitioner/first defendant is directed to pay a sum of Rs.5,000/- (Rupees five thousand only) to the Tamil Nadu State Legal Services Authority, High Court, Chennai. Consequently, connected Miscellaneous Petition is closed.
11.09.2014 Internet:Yes kj To The District Munsif Court, Thirukazhukundram.
R.MALA,J.
kj C.R.P(PD).No.2277 of 2014 and M.P.No.1 of 2014 11.09.2014