Madras High Court
N.Anand vs S.Saravanan on 20 September, 2012
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/09/2012 CORAM THE HON'BLE MR.JUSTICE R.SUBBIAH Application No.2469 of 2012 in Civil Suit No.339 of 2012 K.CHANDRAN VS. V.GEETHALAKSHMI FOR PETITIONER : N.ANAND FOR RESPONDENT : S.SARAVANAN ORDER :
R.SUBBIAH, J., This is an application filed by defendants 1 to 3 and 12 to reject the plaint in the present suit.
2. Respondent is the plaintiff and she filed the suit as against the defendants numbering 12 for the following reliefs;
"(a) to declare the plaintiff as the absolute owner of the suit schedule property;
(b) to direct defendants 1 to 3 to surrender vacant possession of the suit property;
(c) to declare the sale deed executed by late Mrs.Dhanalakshmi, Nirmala (D4) and late Purushothaman in favour of K.Chandran (D1) registered as Doc.No.1305 of 1985 dated 06.05.1985 on the file of SRO., Saidapet, Chennai-15 as null and void and unenforceable;
(d) to declare the sale deed executed by late Mrs.Dhanalakshmi, Nirmala (D4) and late Purushothaman in favour of Meena (D2) registered as Doc.No.1303 of 1985 dated 06.05.1985 on the file of SRO., Saidapet, Chennai-15 as null and void and unenforceable;
(e) to declare the sale deed executed by late Mrs.Dhanalakshmi, Nirmala (D4) and late Purushothaman in favour of Varadhan (D2's father) registered as Doc.No.1304 of 1985 dated 06.05.1985 on the file of SRO., Saidapet, Chennai-15 as null and void and unenforceable;
(f) for a permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit property; and
(g) for a permanent injunction restraining the defendants and their men from altering, developing or encumbering or dealing with the suit property;
3. Before traversing through the averments made in the affidavit filed by the applicants for rejection of plaint, it would be appropriate to narrate the brief facts about the case of the plaintiff, as averred in the plaint, which reads as under:
According to the respondent/plaintiff, she is the owner of the property bearing house, ground and premises bearing New Door No.75, situate in old S.No.103/1, T.S.No. 118, Block No.1, bearing patta No.C.A.805/06-07 in Ekkattuthangal Village, Mambalam Guindy Taluk, Chennai District, measuring 54 cents, more fully described in the schedule, having purchased the same from one Vee Rajmohan, the 11th defendant in and through a sale deed dated 01.07.2005, registered as Doc.No.4611 of 2005 on the file of District Registrar, Madras South for valuable consideration. On the date of sale, as per clause 7 of the sale deed, the vendor has handed over possession of the suit property to the respondent and from that date, she is in possession and enjoyment of the same. Now, presently the respondent's tenants are in possession of the property. While so, the 4th applicant/12th defendant, who has been claiming the schedule mentioned property as power of attorney agent of applicants 1 to 3 (defendants 1 to 3), wanted to construct a huge multi-storey building and attempted to develop the schedule mentioned property. When the respondent came to know about the same, she gave advertisement in newspapers that she is the absolute owner of the property and thereafter, she filed the present suit against the applicants and other defendants for the reliefs mentioned supra.
4. On appearance, the applicants (defendants 1 to 3 and 12) filed this application for rejection of the plaint stating that the suit property was originally owned by one Vedhachala Naicker, who had purchased the same by a registered sale deed dated 05.11.1941. The said Vedhachala Naicker subsequently settled the suit property in favour of one Kanniammal in and by a settlement deed dated 26.10.1959 registered as document No.2268/59 on the file of SRO., Saidapet. After the demise of said Kanniammal, her son Balakrishna Naicker became the absolute owner of the suit property. The said Balakrishna Naicker was missing since 1972 and was not traceable and not heard for 7 years. Therefore, he is presumed to be dead as per section 108 of the Evidence Act. The legal heirs of Balakrishna Naicker are Dhanalakshmi-wife, Nirmala-daughter, Purushothaman-son and 3 minor daughters, viz., Bhuvaneswari, Indra and Punitha.
5. It is the further case of the applicants that one Vasudevan filed a suit in O.S.7972 of 1983 for specific performance against the legal heirs of Balakrishna Naicker in respect of the suit property. The said suit was decreed on 30.04.1985 in his favour. In the said situation, on 06.05.1985, the legal heirs of Balakrishna Naicker had sold the suit property to applicants 1 and 2, viz., Chandran, Meena and one Varadhan in and by three separate sale deeds, registered as Doc.Nos.1303, 1304 and 1305 of 1985 on the file of District Registrar-South. Since the suit O.S.7972 of 1983 was decreed in favour of Vasudevan, the legal heirs of Balakrishna Naicker had filed an appeal in A.S.677 of 1988. In the said appeal, applicants 1 and 2 and Varadhan have filed impleading petitions in CMP.1323 and 1324 of 1989 to implead themselves as parties to that appeal since they have purchased the suit property from the legal heirs of Balakrishna Naicker and the said petitions were allowed; however, ultimately, A.S.677 of 1988 was dismissed confirming the decree granted by the trial court for specific performance. Against the dismissal of appeal, two second appeals came to be filed, one by legal heirs of Balakrishna Naicker in S.A.No.1115 of 1990 and another by applicants 1 and 2 and Varadhan in S.A.No.1119 of 1990. Both the second appeals were allowed and the suit was dismissed by judgment dated 17.10.2001 by this court. Against which, the said Vasudevan filed SLP (Civil) 12515 of 2002 before the Hon'ble Supreme Court. The said SLP was also dismissed on 19.08.2002. Subsequently, the review application filed by Vasudevan in Review SR 52689 of 2006 and 66230 of 2007 to review the order passed in Second appeals were also dismissed on 05.02.2007 and 7.12.2007 respectively. Thus, the suit filed by Vasudevan had reached the finality.
6. While the situation stood thus, Dhanalakshmi Ammal, wife of Balakrishna Naicker died on 20.10.2002. After her death, all of a sudden, the legal representatives of Balakrishna Naicker attempted to cancel the sale deed executed in favour of applicants 1 and 2 and Varadhan in the year 1985. One of the legal representatives of Balakrishnan, by name, Nirmala (D4) filed a writ petition in W.P.No.11444 of 2004 through her power of attorney agent one Ramesh for a direction to delete the names of applicants 1 and 2 from the patta granted in their favour alleging that the sale deeds dated 06.05.1985 executed in favour of applicants 1 and 2 and Varadhan are forged documents. Subsequently, the said writ petition was withdrawn. Thereafter, the legal heirs of Balakrishna Naicker, viz., Indra and Punitha, who are defendants No.6 and 7 in the present suit, filed C.S.433 of 2004 before this Court for delivery of possession of 3 grounds out of 7 grounds and also for an injunction restraining the applicants from interfering with possession and enjoyment of the suit property stating that the sale deeds were executed in favour of applicants 1 and 2 and Varadhan by undue influence and coercion. Subsequently, the other legal heirs of Balakrishna Naicker, viz., Nirmala, Bhuvana (D4 and D5) and Purushothaman (father of D8 and D9) filed a suit in C.S.123 of 2005 before this Court seeking for the very same relief and the stand taken by Punitha and Indra in C.S.No.433 of 2004 was disowned in the later suit. The relief sought for in C.S.No.123 of 2005 was to declare the 3 sale deeds executed in favour of applicants 1, 2 and Varadhan as null and void and also for delivery of possession.
7. In the meantime, the legal heirs of late Balakrishna Naicker, who do not have any right over the property, had created a sale deed dated 18.10.2004 in favour of one Vee Rajmohan, the 11th defendant in the present suit. Subsequent to the creation of illegal sale deed in favour Vee Rajmohan, the said Raj Mohan filed O.S.3013 of 2005 against the applicants for permanent injunction as if he is in possession of the property. The said suit came to be dismissed by judgment and decree dated 16.03.2007. In the meantime, the said Vee RajMohan created another sale deed dated 01.07.2005, through which, the respondent is claiming her right over the suit property.
8. By virtue of the sale deeds dated 06.05.1985, the right, title and possession in favor of applicants 1 and 2 and Varadhan are intact over the suit property. Subsequent to the death of K.Varadhan, his mother settled the property purchased by the said Varadhan by one of the sale deeds on 06.05.1985 in favour of 3rd applicant, by name, C.Jayaraj, son of the 1st applicant. Now, applicants 1 to 3 are in possession and enjoyment of the property. They executed two power of attorneys dated 11.05.2011 in favour of 12th defendant/4th applicant herein, namely, M/s.KGEYES Residency Private Limited. At this juncture only, the respondent, claiming right over the property through an illegal sale deed dated 01.07.2005, filed the suit in O.S.1307 of 2012 before the 16th Assistant Judge, City Civil Court for bare injunction against the 4th applicant, who was given power to develop the suit property. In the said suit, applicants 1 to 3 were not impleaded as parties. In the said suit, the respondent filed I.A.3383 of 2012 seeking interim injunction restraining the 4th applicant from interfering with possession of the respondent herein and another I.A.3389 of 2012 for interim injunction restraining the 4th applicant from altering and developing the suit property. In the said applications, the 4th applicant herein filed a detailed counter and finally, the said applications were dismissed by the City Civil Court on 22.03.2012. After the dismissal of the same, the respondent filed another suit in O.S.2867 of 2012 before the 16th Judge, City Civil Court against Corporation of Chennai and CMDA seeking for injunctions restraining the authorities from granting permission to demolish the existing structure in the suit property and from sanctioning building plan for putting up a multi-storeyed building in the suit property. In the said suit, I.A.Nos.7417 and 7418 of 2012 were filed seeking identical interim relief. The mala fide intention of the respondent would be clear from the fact that in the suit in O.S.1307 of 2012 filed against the 4th applicant, who is the the power agent of applicants 1 to 3, applicants 1 to 3 were not added as parties and similarly, in O.S.2867 of 2012, the 4th applicant was not added as a party, which would show that a clear attempt has been made to get some order by swapping the parties in different suits. Now, by suppressing the entire facts, the present suit has been filed for the reliefs stated supra. Therefore the suit filed by the respondent is liable to be rejected for the following grounds;
(a) when already two suits have been filed by the predecessor-in-title in C.S.No.433 of 2004 and 123 of 2005 for similar relief, the respondent herein, who is the subsequent purchaser, cannot be permitted to file an independent suit to declare the title;
(b) number of litigation initiated by the predecessor-in- title, the vendor of the respondent and the respondent would clearly go to show that there is clear abuse of process of court and the courts are being misused time and again by making the applicants to run from one court to another to safeguard their right, title and interest and at the same time, the abuse has to be stopped by this Court by exercising its jurisdiction. The abuse of process of law and re-litigation can be intercepted with by exercising jurisdiction under Order 7 Rule 11 C.P.C. and on this ground, the plaint has to be rejected;
(c) at the time when the respondent filed O.S.1307 of 2012 before the City Civil Court, she ought to have reserved her right under Order 2 Rule 2 of C.P.C.by seeking leave of the Court to claim a substantial relief at a later point of time since the cause of action for filing the present suit was very much available to her at that time when she filed O.S.No.1307 of 2012. Since the respondent has not reserved the right as per Order 2 Rule 2, she has virtually forfeited her right to claim any subsequent relief. Hence, on that ground also, the suit is liable to be rejected; and
(d) the suit is also barred by limitation since the respondent was aware of the earlier sale deeds dated 06.05.1985 even at the time of execution of the sale deed by Vee Raj Mohan in her favour.
9. Resisting the case of the applicants, the respondent filed a counter stating that the rejection of plaint can be done under Order 7 Rule 11 only where it does not disclose a cause of action. Though the respondent had purchased the property in the year 2005, she has not taken any action from the date of purchase till date of possession of the property. Only in the year 2012, the 4th applicant KGEYES has made a public advertisement stating that they are going to construct a multi storeyed building. Immediately, the respondent gave a public announcement through newspaper stating that the property absolutely belongs to her and she issued a notice to the 4th applicant also. Since she has not received any reply from them, she has been forced to file the present suit seeking injunction against the 4th respondent alone from interfering with the possession of the property.
10. According to the respondent, it is not known how and what capacity the 4th applicant entered into the property and constructed a multi storeyed building. In the suit filed by the respondent as against the 4th applicant in O.S.1307 of 2012 before the City Civil Court, the 4th applicant has categorically stated that he is only a power of attorney of the 1st applicant and in view of the statement made by the 4th applicant, the earlier suit filed by the respondent is not maintainable except a prayer for declaration. Therefore, the respondent filed the present comprehensive suit for declaration and injunction. Similarly, when the earlier suit filed by the respondent in O.S.No.1307 of 2012 was pending, the respondent came to know that by making misrepresentation, the applicants were trying to get the plan and as such, the respondent has filed another suit in O.S.No.2867 of 2012 adding the Corporation as well as CMDA and no prayer was made in the said suit against these applicants. In the present suit only, the reliefs were sought for against the applicants. In the present suit, it has been clearly stated that possession of the property was delivered to the respondent by her vendor. Only when the applicants made an attempt to interfere with her possession, the respondent was forced to file the suit. Therefore, it is incorrect to state that the suit is barred by limitation. In fact, the applicants, only under the guise that they are going to help her predecessor-in-title, who are all illiterate, and taking advantage of the same, obtained their signatures in the sale deeds all dated 06.05.1985 and, as such, the sale deeds are not genuine documents. Though two suits are pending before this Court filed by the respondent's predecessor, they are not disposed of till date. The present respondent is a bona fide purchaser to maintain the suit. Thus, she prayed for the dismissal of the suit.
11. Heard the learned counsel for both sides.
12. It is the submission of the learned Senior Counsel for the applicants that originally the suit property was owned by legal representatives of Balakrishna Naicker, from whom applicants 1 and 2 and one Varadhan had purchased the property by three separate sale deeds dated 06.05.1985. One of the legal heirs of deceased Balakrishna Naicker, namely, the wife Dhanalakshmi died in the year 2002; thereafter, the other legal heirs of Balakrishnan attempted to cancel the sale deed executed in favour of applicants 1 and 2 and Varadhan. Defendants 6 and 7, the legal heirs of the deceased Balakrishna Naicker filed C.S.433 of 2004 as against applicants 1 and 2 and the legal heirs of K.Varadhan (since deceased) for mandatory injunction, directing them to hand over vacant possession of the suit property, which was conveyed by the legal heirs of Balakrishna Naicker in the year 1985 by three sale deeds. The other legal heirs of the said Balakrishna Naicker have also filed another suit in C.S.123 of 2005 to set aside the sale deeds executed on 06.05.1985 in favour of applicants 1 and 2 and Varadhan. Meanwhile, the legal heirs of Balakrishna Naicker executed a sale deed illegally in respect of the suit property on 18.10.2004 in favour of 11th defendant in the suit, viz., Vee Raj Mohan, who, in turn, executed another sale deed in favour of the respondent on 01.07.2005. Therefore, the respondent is only the subsequent purchaser, who had purchased the suit property when the suits filed by the predecessor-in-title were pending as against applicants 1 to 3. The reliefs sought for in the suit in C.S.123 of 2005, 433 of 2004 and the present suit are all only as against the sale deeds dated 06.05.1985 executed in favour of applicants 1 and 2 and Varadhan. The present suit filed by the subsequent purchaser for the same relief is not maintainable and, as such, the same is liable to be rejected. Moreover, there is no cause of action against the defendants to maintain the suit. In support of this contention, the learned senior counsel relied on the decisions reported in the case of T.G.Ashok Kumar .vs. Govindammal and another (2011-1-L.W.394) and The Church of Christ Charitable Trust & Educational Charitable Society .vs. Ponniammal Education Trust (2012(4) CTC 308).
13. The learned senior counsel for the applicants further submitted that all the three sale deeds were executed and registered on 06.05.1985. Now, almost 28 years have elapsed from the date of execution of sale deeds. At this juncture, the present suit has been filed by the respondent herein as if applicants 1 and 2 and Varadhan had obtained sale deeds from the predecessors-in-title i.e.the legal representatives of deceased Balakrishna Naicker by playing fraud on them. The suit filed by the legal heirs of Balakrishna Naicker in C.S.Nos.123 of 2005 and 433 of 2004 also contained the same allegations. In this regard, the learned senior counsel for the applicants invited the attention of this Court to Article 56 of the Limitation Act and submitted that the limitation for filing suit to declare the forgery of an instrument issued or registered is only 3 years from the date on which the registration becomes known to the plaintiff. In the instant case, the respondent/plaintiff had purchased the property on 01.07.2005 from the 11th defendant, who had purchased the same by a sale deed dated 18.10.2004 from one of the legal heirs of deceased Balakrishna Naicker, which is an illegal transaction. All the earlier litigations were mentioned by the vendors of the respondent in the said sale deed dated 01.07.2005. Therefore, on the date of execution of sale deed dated 01.07.2005 itself, the respondent is aware of the earlier sale deeds dated 06.05.1985 through which sale deeds applicants 1 and 2 and one Varadhan had purchased the property from the respondent's vendor's predecessors-in-title i.e.the legal heirs of Balakrishna Naicker; but the present suit has been filed in the year 2012 only i.e.after expiry of limitation period. Hence, the suit is clearly barred by limitation. In this regard, the learned senior counsel further submitted that the plaint can be rejected on the ground of limitation when the statement made in the plaint clearly shows that the suit is barred by any law. The language in Order 7 Rule 11 C.P.C. is quite clear and unambiguous. Order 7 Rule 11 says that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In this regard, the words 'barred by any law' means including the law of limitation also. In this regard, the learned senior relied on the judgment of Apex Court reported in the case of Hardesh Ores Pvt.Ltd., and another .vs. Hede and Company ((2007) 5 MLJ 187 (SC).
14. Further the learned senior counsel for the applicants submitted that applicants 1 to 3 entered into an agreement with the 4th respondent/12th defendant to develop the property. At this juncture, in the year 2012 i.e. after 7 years from the date on which the sale deed was executed by the 11th defendant in favour of the respondent, has filed O.S.1307 of 2012 before the City Civil Court as against the 12th defendant(4th applicant) for injunction restraining him from interfering with the peaceful possession of the suit property and also restraining the 4th applicant from developing the suit property. In the said suit, the respondent has also filed I.A.3383 of 2012 seeking interim injunction as against 4th applicant, but the sme was dismissed by the 16th Assistant Judge, City Civil Court on 22.03.2012. Thereafter, another suit was filed by the respondent in O.S.2867 of 2012 as against applicants 1 to 3 and also as against Corporation of Chennai and CMDA seeking injunction restraining the authorities from demolishing the existing structure in the suit property and from sanctioning of building plan to construct a multi storyed building. The cause of action for filing suit in O.S.1307 of 2012 and the present suit is one and the same. Under such circumstances, the respondent ought to have added the prayers sought for in the present suit in the earlier suit itself, namely, O.S.No.1307 of 2012 by adding applicants 1 to 3 as parties, whereas the conduct of the respondent in filing suit one after another on the same cause of action would amount to re-litigating the issue again and again, and hence, there is a clear abuse of process of law. Therefore, on that account also, the suit is liable to be rejected. In support of this contention, the learned senior counsel has relied on the decision reported in the case of C.E.Sulochana .vs. C.E.Sathyanarayana Reddy ((2008) 3 MLJ 371).
15. Countering the said submissions, the learned counsel appearing for the respondent/plaintiff submitted that though the respondent had purchased the suit property from the 11th defendant on 01.07.2005, the cause of action for filing the suit had arisen for the respondent only on 10.02.2012 when the 4th applicant claiming to be the power agent of applicants 1 to 3 attempted to deal with the property; on 10.02.2012 when the respondent gave a police complaint; on 11.02.2012 when the respondent made paper advertisement and on 25.02.2012 when their men attempted to interfere and deal with the suit property. Therefore, the suit is not hit by limitation. Hence, the contention made by the applicants that the suit is barred by limitation is not correct. Further the learned counsel submitted that the respondent came to know about the various litigation between applicants 1 to 3 and the predecessors-in-title i.e.the legal heirs of Balakrishna Naicker only from the counter filed by the applicants in the interim applications taken out in O.S.No.2867 of 2012 filed before the City Civil Court. Thereafter, the present comprehensive suit has been filed in March, 2012 before this Court seeking declaration that the plaintiff is the absolute owner and also for other reliefs. Therefore, it is incorrect to state that the respondent had the knowledge of prior litigation between the applicants and the legal heirs even on the date on which she had purchased the property. Therefore, the present suit is not hit by limitation.
16. Learned counsel for the respondent further submitted that in the year 1985, suit was filed by one Vasudevan as against the legal heirs of Balakrishna Naicker in O.S.7972 of 1983, which was decreed in favour of Vasudevan on 30.04.1985. In the meantime, applicants 1 and 2 and Varadhan had obtained signatures fraudulently from the legal heirs of Balakrishna Naicker in the stamp papers by promising them that they would take care of the litigation initiated by Vasudevan as against them. Thereafter, applicants 1 and 2 and Varadhan got the sale deeds executed by playing fraud on the legal heirs of Balakrishna Naicker on 06.5.1985. As against the decree passed in O.S.7972 of 1983, the suit filed by Vasudevan for specific performance, the legal heirs of Balakrishnan filed A.S.No.677 of 1998. In the said first appeal, applicants 1 and 2 and Varadhan filed impleading application and got themselves impleaded and finally, the said appeal was dismissed. While dismissing the first appeal, the lower appellate court has observed that the sale deeds dated 06.05.1985 said to have been executed by the legal representatives of Balakrishna Naicker in favour of applicants 1 and 2 and Varadhan are not binding and the same is hit by lis pendens since the said sale deeds were executed on 06.05.1985 after passing the decree in O.S.7972 of 1983 in favour of Vasudevan, who is the plaintiff in the said suit. Aggrieved over the said judgment and decree of the first appeal, the legal representatives of Balakrishna Naicker filed S.A.1119 of 1990 and applicants 1 and 2 and Varadhan filed S.A. 1115 of 1990. Both the second appeals were allowed by this Court and consequently, the suit filed by the said Vasudevan in O.S.No.7972 of 1983 was dismissed. Aggrieved over the same, the said Vasudevan has filed SLPs before the Apex Court. The Apex Court has dismissed the SLPs. However, it is pertinent to note that in the appeal filed by applicants 1 and 2 and Varadhan, they have not chosen to challenge the finding rendered by the first appellate court that the sale deeds dated 06.05.1985 executed in their favour is hit by lis pendens by raising specific grounds. Therefore, the said finding of the first appellate Court made in A.S.No.677 of 1998 is still open to the respondent as well as to the predecessors-in-title to challenge the sale deeds dated 06.05.1985. Therefore, the present suit challenging the sale deeds dated 06.05.1995 is maintainable.
17. The learned counsel appearing for the respondent further submitted that O.S.1307 of 2012 has been filed only as against the 4th applicant in order to restrain him to develop the property and O.S.No.2867 of 2012 has been filed restraining the Corporation from granting permission to the 4th applicant, who is the power agent of applicants 1 to 3, to demolish the existing structure in the suit property and sanctioning building plan for putting up multi-storeyed building in the suit property. The present suit has been filed for setting aside the sale deeds dated 06.05.1985 and also for consequential injunction. Therefore, it is incorrect to state that the cause of action in the earlier suits filed by the respondent as well as the present suit is one and the same. Hence, there is absolutely no abuse of process of court. The learned counsel further submitted that under Order 7 Rule 11 of C.P.C., this Court has to see, whether the allegation in the plaint discloses the cause of action or not and if the allegation does not disclose the cause of action, then only the plaint can be rejected. In the instant case, the averments made in the plaint clearly makes out of cause of action. Hence, question of rejecting the plaint does not arise in this case. In this regard, the learned counsel has relied on the judgments reported in Balasaria Construction (P) Ltd., .vs. Hanuman Seva Trust and others (CDJ 2005 SC 929), State Orissa .vs. Klockner & Company and others (AIR 1996 SC 2140), British Airways .vs. Art Works Export Ltd., and another (AIR 1986 Calcutta 120), Saleem Bhai .vs. State of Maharashtra (CDJ 2003 SC 107), Poppet and Kotecha Property .vs. State Bank of India Staff Association (CDJ 2005 SC 625), Ramprakash Gupta .vs. Rajiv Kumar Gupta and others ((2007) 19 SC 59, Mayar (H.K)Ltd. And others .vs.Owners and Parties, Vessel MV Fortune Express and others (CDJ 2006 SC 120) and S.P.Chengalvaraya Naidu .vs. Jagannath (AIR 1994 SC 853).
18. In view of the arguments advanced by both sides, the questions that arise for consideration are, (1) Whether the suit is liable to be rejected on the ground of limitation ?
(2) Whether a person, who had purchased the property pendente lite can file a suit for title in respect of the said property ?
(3) Whether the filing of the present suit would amount to re-litigating the same issue ?
(4) Whether the suit is liable to be rejected on the ground of abuse of process of court ?
19. With regard to the ground of limitation, it is the submission of the learned Senior Counsel for the applicants that one Vasudevan originally filed a suit in O.S.No.7972 of 1983 for specific performance as against the legal heirs of Balakrishna Naicker. The said suit was decreed in his favour on 30.04.1985; but on 06.05.1985, the legal heirs of Balakrishna Naicker had executed three sale deeds in favour of Chandran (1st applicant), Meena (2nd applicant) and one Varadan. Though the first appeal filed by the legal heirs of Balakishna Naicker was dismissed, subsequently the second appeal filed by the legal heirs of Balakrishna Naicker in S.A.No.1115 of 1990 and another second appeal filed by the purchaser of the property in S.A.No.1119 of 1990 were allowed and the suit filed by Vasudevan was dismissed, which was also confirmed in S.L.P.(C) Nos.12514 and 12515 of 2002 on 17.10.2001. Hence, the issue raised in O.S.No.7972 of 1983 had reached finality in favour of the legal heirs of Balakrishna Naicker, from whom applicants 1 and 2 and Varadan had purchased the property on 06.05.1985. Till 2002, there was no dispute with regard to the title of the applicants in respect of the suit property. But subsequently, after the death of Dhanalakshmi ammal, wife of Balakrishna Naicker, in October,2002, the other legal heirs of Balakrishna Naicker had started to dispute the title. In this regard, already two suits have been filed; one by two daughters of Balakrishna Naicker, viz., Indira and Punitha in C.S.No.433 of 2004 and another by the son and two daughters of Balakrishna Naicker, viz., Purushothaman, Nirmala, Bhuvana in C.S.No.123 of 2005 before this Court. Pending suits, the properties were sold by one of the legal heirs of Balakrishna Naicker to 11th defendant, from whom, the present plaintiff had purchased the property on 01.07.2005. According to the applicants, these transactions are illegal since the property was sold to them by the LRs.of Balakrishna Naicker in the year 1985 itself. Now, the present suit has been filed after seven years from the date of purchase of the suit property and 27 years after the execution of sale deeds dated 06.05.1985 by the legal heirs of Balakrishna Naicker in favour of applicants 1 and 2 and Varadhan. Therefore, it is the submission of the applicants that the suit is hit by limitation. Hence, on that ground, the plaint is liable to be rejected.
20. On the contrary, it is the submission of the learned counsel for the respondent that though the respondent had purchased the property from the 11th defendant Rajmohan, she came to know about the earlier litigation between the legal heirs of Balakrishna Naicker and applicants 1, 2 and Varadhan only in the year 2012, when the 4th applicant, who is the power agent of applicants 1 to 3, entered into the property with an intention to develop the same. Therefore, it is incorrect to state that the suit is hit by limitation. Further, limitation is the mixed question of law and facts. Therefore, on the ground of limitation, the suit cannot be rejected at the threshold stage.
21. On a perusal of entire materials available on record, I find that even in the sale deed dated 01.07.2005, by which document the respondent had purchased the suit property from the 11th defendant, all the earlier litigation were clearly referred to. Therefore, it is apparent from the suit records that the respondent, knowing fully well that the property was sold in favour of applicants 1 to 3 herein by the legal heirs of Balakrishna Naicker as early as in the year 1985 and also having knowledge about the earlier litigation between the Balakrishna Naicker and the applicants, had purchased the property. Hence, I am not inclined to accept the submission of the learned counsel for the respondent that the suit is not hit by limitation.
22. It is the further submission of the respondent/ plaintiff that the plea of limitation is mixed question of facts and law and, as such, the plaint cannot be rejected at the threshold stage. But, I am of the opinion that, when it is apparent from the averments made in the plaint as well as from the supporting materials that the suit is filed beyond the period of limitation, then the plaint could be rejected on the ground of limitation. In fact, the judgment of the Hon'ble Apex Court relied upon by the applicants reported in (2007)5 MLJ 187 SC (supra) gives a fitting answer for this issue and the relevant paragraphs are extracted hereunder:
"21. The language of Order VII Rule 11 C.P.C. is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be bared by any law. Mr.Nariman did not dispute that "law" within the meaning of clause(d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the paint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P.& I Association Ltd., .vs. M.V.Sea Success I and Another (2004) 9 SCC 512 and Popat and KotechaProperty v. State Bank of India Staff Association (2005) 7 SCC 510".
23. A reading of the above paragraphs would show that if it is apparent from the averments made in the plaint and the materials that if the suit is filed beyond the limitation period, then the same is liable to be rejected. As per the provisions under Order VII Rule 11(d), where the suit appears from the statement in the plaint to be barred by any law, then the plaint is liable to be rejected. The wordings 'any law' envisaged in Order VII Rule 11(d) includes law of limitation also. So far as the present case is concerned, as observed, the present suit has been filed after seven years from the date on which she had purchased the property, pending litigation.
24. Further, a reference could be placed in the other judgment relied on by the applicants in the case of N.Ravindran .vs. V.Ramachandran (2011(3) CTC 153), wherein a Division Bench of this Court has held as follows:
"10. The well settled position is that while considering the application under Order VII Rule 11 C.P.C., Court is not required to take into consideration the defence set up by the defendant in his written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. While considering the application, the strength or weakness of the case of the plaintiff is not to be examined. It is fairly well settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether any vexatious or frivolous litigation has been initiated by the plaintiff. The Court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is frivolous or is barred by any law".
Therefore, in my considered opinion, on a perusal of the averments made in the plaint as well as supporting materials, it is clear that the suit is hit by limitation and on this ground, the plaint is liable to be rejected.
25. Further I find that the main allegation in the plaint is that the applicants have obtained sale deeds dated 06.05.1985 by playing fraud on the legal heirs of Balakrishna Naicker, which allegation is similar to that of the allegation made in C.S.No.123 of 2005 filed by the legal heirs of Balakrishna Naicker as against the applicants. As per section 56 of the Limitation Act, to declare the forgery of an instrument issued or registered, the period of limitation is three years. But, this suit has been filed much after from the date of registration of the sale deeds in favour of applicants 1 and 2 and one Varadhan. Hence, on that ground also, the suit is hit by limitation.
26. Next question that falls for consideration is, whether the subsequent purchaser of the suit property is entitled to file a suit for title in respect of the property purchased by him when already a suit for title filed by the predecessors-in-title is pending. It is the case of the applicants that they have purchased the property as early as in the year 1985 from the legal heirs of Balakrishna Naicker. After the demise of the wife of Balakrishna Naicker in the year 2002, two suits were filed by the legal heirs of Balakrishna Naicker, one in C.S.Nos.433 of 2004 and another in 123 of 2005. During pendency of the said suits, one of the legal heirs of Balakrishna Naicker had sold the suit property to the 11th defendant, who, in turn, sold the same to the respondent. The prayer in C.S.No.123 of 2005 and the present suit is one and the same. The prayer in C.S.123 of 2005 is extracted hereunder.
"26. The plaintiff therefore prays that this Hon'ble Court may be pleased to pass a judgment and decree in favour of the plaintiff:
(a) Declaring the following forged 3 sale deeds executed by the defendants 1 to 6 are null and void;
(1) The sale deed executed by Mrs.Dhanalakshmi, Nirmala and Purushotaman in favour of Mr.K.Chandran in Document No.1305/1985 dated 06.05.1985 at SRO., Saidapet, Chennai-15.
(2) The Sale Deed executed by Mrs.Dhanalakshmi, Nirmala and Purushothaman in favour of Mrs.Meena in Document No.1303/1985 dated 06.05.1985 at SRO., Saidapet,Chennai-15.
(3) The Sale Deed executed by Mrs.Dhanalakshmi, Nirmala and Purushothaman in favour of Mr.K.Varadhan in Document No.1304/1985 dated 06.05.1985 at SRO., Saidapet, Chennai-15.
(b) Directing the defendants 1 to 7 to hand over the vacant possession of the suit 'B' Schedule property to the plaintiffs.
(c) Granting Permanent injunction restraining the defendants 1 to 7, their men and agents from in any manner interfering with the peaceful possession and enjoyment of the plaintiffs in the Suit 'A' and 'B' Schedule property".
27. The prayer in respect of the sale deeds dated 06.05.1985 made in C.S.123 of 2005 and the present suit is one and the same. In C.S.No.123 of 2005, the prayer was to declare the sale deeds dated 06.05.1985 executed by the legal heirs of Balakrishna Naicker as null and void. The prayer in the present suit filed by the subsequent purchaser is to set aside the sale deeds dated 06.05.1985 executed by the legal heirs of Balakrishna Naicker in favour of applicants 1 and 2 and Varadhan. In both the suits, the allegations are that applicants 1 and 2 and one Varadhan, by playing fraud, obtained three sale deeds dated 06.05.1985. When already a suit filed by the predecessor-in-title is pending for title, filing of another suit for the same relief by the subsequent purchaser in respect of the property purchased by her from the predecessor-in-interest is not legally sustainable. In this regard, a reference could be placed in the judgment relied upon by the learned senior counsel for the applicants in the case of Hardev Singh .vs. Gurmail Singh (dead) by LRs. reported in (2007) 2 SCC 404, wherein the Hon'ble Apex Court has held as follows:
"18. The learned trial Judge and the first appellate court had decreed the suit of Udham Kaur only on the basis that she acquired the suit property during the pendency of the earlier litigation. Section 52 of the Act merely prohibits a transfer. It does not state that the same would result in an illegality. Only the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect".
28. From the dictum laid down in the above case, it is clear that section 52 of the Act prohibits the pendente lite transfer. The subsequent purchaser has to wait for the result of litigation initiated by the predecessor-in-title and he has no right to file a separate suit for the same relief. In this regard, an useful reference also could be placed in another judgment relied on by the applicants in the case of T.G.Ashok Kumar .vs. Govindammal and another reported in 2011-1-L.W.394 and the relevant paragraph is extracted hereunder:
"10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially".
29. A reading of the said judgment would show that if the property is transferred pendent lite and if the transferor is held to have no right or title in that property, the transferee will not have any title over the property. In the instant case, it is the claim of the applicants that by virtue of the sale deeds dated 06.09.1985, they have become absolute owners of the property and the legal heirs of Balakrishna Naicker have no right over the same. Only if the legal heirs of Balakrishna Naicker have any right over the property, the subsequent purchaser also will have a right over the property. However, the question that whether the legal heirs of Balakrishna Naicker are having any right over the suit property or not is a subject matter of the suit initiated by them. Hence, the respondent has to wait for the result of the suit filed by the legal heirs of Balakrishna Naicker as against the applicants and she cannot file a separate suit. If the right of the legal heirs of Balakrishna Naicker over the suit property is held valid in that suit, automatically plaintiff will acquire the right over the said property as a subsequent purchaser. Therefore, the purchaser of the immovable property during the pendency of a suit has no right to file a separate suit. Therefore, on this ground also, the plaint is liable to be rejected.
30. The other submission of the applicants is that there is an abuse of process of court since the respondent is re-litigating the issue by filing various suits. The materials available on record would show that already the legal heirs of Balakrishna Naicker filed C.S.Nos.433 of 2004 and 123 of 2005. Respondent herein filed a suit in O.S.1307 of 2012 for injunction as against the 4th applicant herein (12th defendant) on the allegation that the 4th applicant, as power agent of applicants 1 to 3, is trying to put up a multi-storeyed building in the suit property, which property was purchased by the respondent from the 11th defendant. Subsequently, she had filed another suit in O.S.No.2867 of 2012 as against applicants 1 to 3, Corporation of Chennai and CMDA for injunction not to grant permission to the applicants to put up multi storeyed building in the suit property. Thereafter the present suit has been filed to set aside the sale deeds dated 06.05.1985 executed by the legal heirs of Balakrishna Naickeri in favour of applicants 1 to 3 herein.
31. Learned Senior Counsel for the applicants submitted that the cause of action in O.S.1307 of 2012 and the present suit is one and the same. On a perusal of cause of action paragraph in the present suit, it is obvious that it is a clear replica of the cause of action paragraph in O.S.1307 of 2012. The conduct of the respondent would show that she is re-litigating the same issue time and again by filing various suits, which would amount to abuse of process of court. In this regard, learned senior counsel relied on the judgment of this Court in the case of C.E.Sulochana and others .vs. C.E.Sathyanarayana Reddy ((2008) 3 MLJ 371), wherein the Division Bench of this Court has observed as follows:
"26. Where there is abuse of process of Court by filing futile litigation permitting the trial to proceed would amount to licensing of vexatious litigation to continue. The re-agitation may or may not be barred by res judicata. But, if the same issue is sought to be re-agitated, it would also amount to abuse of process of the Court. Where there is clear abuse of process of the Court, the Court has to view such conduct seriously and the same is to be halted to save precious time of the Court being wasted.
27. In the decision of the Supreme Court K.K.Modi v. K.N.Modi AIR 1998 SC 1297 : (1998) 3 SCC 573 : (1998) Suppl MLJ 91 elaborately considering the abuse of process of the Court, the Supreme Court has held that the Court has power to stop such frivolous and vexatious proceedings. The Supreme Court has also cautioned that such power is to be exercised with circumspection and it has held as follows at p.103 of MLJ:
"42. Under Order 6 Rule 16, the court may, at any stage of the proceeding, order to be 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 Edn., Vol. II, p. 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 the process of the court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p. 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 the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the 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 the 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 the court from being wasted. Undoubtedly, it is a matter of the court's 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."
The dictum laid down in the above judgment is squarely applicable to the facts of the case on hand. Since, in my view, the respondent is re-litigating the same issue by filing various suits, there is a clear abuse of process of court. Therefore, the suit is liable to be dismissed on this ground also.
32. But it is the main submission of the learned counsel for the respondent is that only if the plaint does not disclose any cause of action, the plaint can be rejected under Order 7 Rule 11 C.P.C.; here, a reading of the allegations made in the plaint clearly makes out a cause of action; therefore, the plaint cannot be rejected at the threshold stage. In fact, in support of the said contention, the learned counsel has relied upon number of judgments.
33. But, on going through the judgments, the principle enunciated is that if the plaint makes out cause of action, the same cannot be rejected. But, in the instant case, by a plain reading of the plaint, it is seen that absolutely there is no cause of action to maintain the suit as against the applicants herein with regard to the title of the property. In this regard, an useful reference could be placed in a judgment relied on by the applicants in the case of The Church of Christ Charitable Trust & Educational Charitable Society, rep.by its Chairman .vs. Ponniamman Educational Trust, rep.by its Chairperson/ Managing Trustee reported in 2012(4) CTC 308 wherein the Hon'ble Apex Court has held as follows:
"8. 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".
A reading of the above paragraph would show that 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. But, in the instant case, absolutely, no cause of action has been made out by the respondent against the applicants to ask for setting aside the sale deeds dated 06.05.1985.
34. It is yet another submission of the learned counsel for the respondent that in A.S.No.677 of 1988 i.e. the first appeal filed against the judgment passed in the suit filed by Vasudevan, the first appellate court has rendered a finding that the property purchased by the applicants from the legal heirs of Balakrishna Naicker pendente lite by sale deeds dated 06.05.1985 is not legally valid. The said finding had not been challenged by the legal heirs of Balakrishna Naicker in the second appeal filed by them by raising a specific ground. Therefore, the said finding is left open to the legal heirs of Balakrishna Naicker to challenge the sale deeds dated 06.05.1985 and, as such, the respondent as a subsequent purchaser is also entitled to question the sale deeds dated 06.05.1985. But I am not inclined to accept this submission of the respondent since the suit filed against the legal heirs of Balakrishna Naicker was subsequently dismissed in the second appeal, which was confirmed by the Hon'ble Supreme Court in S.L.P.(C) Nos.12514 and 12515 of 2002. Under such circumstances, the respondent cannot take advantage of the finding rendered in the first appeal at this stage to claim that she is entitled to challenge the sale deeds dated 06.05.1985. Hence, in my opinion, the said finding is not available to the respondent to challenge the sale deeds dated 06.05.1985, after the dismissal of the suit. Therefore, the submission made by the learned counsel for the respondent, based on the finding rendered in the first appeal, namely, A.S.No.677 of 1988, cannot be accepted. Hence, for the foregoing reasons, the plaint is liable to be rejected.
Resultantly, the application is allowed and the suit in C.S.No.339 of 2012 is rejected. Consequently, O.A.No.444 of 2012 is dismissed.
Index: Yes. 06.09.2012
Internet: Yes.
gl
R.SUBBIAH, J.,
gl
Pre-delivery Order in A.No.2469 of 2012 in C.S.No.339 of 2012
06.09.2012
In the High Court of Judicature at Madras
Dated 06.09.2012
Coram
The Hon'blr Mr.Justice R.Subbiah
Application No.2469 of 2012
in Civil Suit No.339 of 2012
1. K.Chandran
2. C.Meena
3. C.Jayaraj
4. M/s.KGEYES Residency,
No.10, 'SRUSHTHISSTHAL',
2nd Cross St., R.A.Puram,
Channai-28. ..Applicants/Defendants
1 to 3 and 12
..vs..
V.Geethalakshmi ..Respondent/Plaintiff
For Applicants : Mr.T.R.Rajagopalan, Senior Counsel
for Mr.N.Anand Venkatesh
For Respondent : Mr.G.Veerabathiran for Mr.S.Saravanan
A.No.2469 of 2012 in C.S.No.339 of 2012
R.SUBBIAH, J.,
This Court has allowed the Application, rejecting the suit in C.S.No.339 of 2012, on 06.09.2012.
2. Today this matter is posted for "being mentioned". By a perusal of the order, it is seen that in para 8(b), it has been stated, .... the abuse of process of law and re-litigation can be interested with by exercising jurisdiction........
Instead of the words "intercepted with", it has been wrongly stated that "interested with".
3. Similarly in para 34, it has been stated that "...But I am not inclined to accept this submission of the respondent since the suit filed by the legal heirs of Balakrishna Naicker was subsequently dismissed in the second appeal, which was confirmed by the Hon'ble Supreme Court in S.L.P.(C) Nos.12514 and 12515 of 2002.
Instead of ".....since the suit filed against the legal heirs of ....", it has been wrongly stated as if the suit filed by the legal heirs was subsequently dismissed.
4. Since the said mistakes are only typographical, they can be rectified and as such, the same are corrected as under:
(i) Para 8(b) reads as follows:
"(b) number of litigation initiated by the predecessor-in- title, the vendor of the respondent and the respondent would clearly go to show that there is clear abuse of process of court and the courts are being misused time and again by making the applicants to run from one court to another to safeguard their right, title and interest and at the same time, the abuse has to be stopped by this Court by exercising its jurisdiction. The abuse of process of law and re-litigation can be intercepted with by exercising jurisdiction under Order 7 Rule 11 C.P.C. and on this ground, the plaint has to be rejected;
(ii) Para 34 reads as follows:
"..... But I am not inclined to accept this submission of the respondent since the suit filed against the legal heirs of Balakrishna Naicker was subsequently dismissed in the second appeal, which was confirmed by the Hon'ble Supreme Court in S.L.P.(C) Bis.12514 and 12515 of 2002....".
Office is directed to issue corrected order to the parties.
gl 20.09.2012
R.SUBBIAH, J.,
gl
A.No.2469 of 2012 in C.S.No.339 of 2012
20.09.2012