Madras High Court
Smt.V.Bragan Nayagi vs R.R.Jeyaprakasam on 1 April, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.04.2015 CORAM THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA C.R.P.NPD (MD) No.819 of 2010 and M.P. (MD) No. 4 of 2014 Smt.V.Bragan Nayagi ... Petitioner Vs 1. R.R.Jeyaprakasam 2. R.R.Arunachalla Rajan ... Respondents (R.2 is recognised by the General Power of Attorney viz., Mr.R.R.Jeyaprakasam/first respondent herein vide order dated 30/7/2014 made in M.P.(MD) No.2 of 2014 in C.R.P.(MD) No.819 of 2010 by VMVJ) Petition filed under Article 227 of the Constitution of India against the order dated 3/3/2010 made in I.A.No.445 of 2009 in O.S.No.98 of 2009 on the file of the Additional District Judge/Fast Track Court, Dindigul. !For petitioner ... Mr.M.S.Krishnan Senior Counsel for Mr.H.Arumugam ^For respondents ... Mr.J.Bharathan (Reserved on 27/1/2015) :O R D E R
The above revision is filed by the eleventh defendant in the suit in O.S.No.98 of 2009 against the order refusing to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure.
2. The plaintiffs had filed the suit praying for a decree that
(i) Nine mortgage deeds executed by the plaintiffs and their father in favour of the defendants 1 to 10 and one Venugopal Iyer, father of the defendants 2, 3 and 9 and Jayalakshmi wife of the third defendant for a sum of Rs.13 lakhs had been discharged
(ii) Consequentially, directing the defendant to hand over possession of the suit property and the original mortgage deeds with endorsement of discharge.
(iii) For cancellation of the sale certificate issued to one P.E.Ramakrishnan, husband of the eleventh defendant in E.P.No.141 of 1981 in O.S.No.717 of 1978 on the file of the Sub-Court, Dindigul.
(iv) For a declaration that the sale deed executed in favour of the fourteenth defendant is void and for permanent injunction restraining the defendants 2 to 14 from alienating the suit properties.
3. The above suit was transferred to the Additional District Court (Fast Track), Dindigul. The defendant has yet filed the written statement even after a lapse of 4 + years. The eleventh defendant in the suit filed I.A.No.445 of 2009 under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint from the file of the trial Court. The said application was dismissed on 3/3/2010. Aggrieved by the same, the eleventh defendant has filed the above Civil Revision Petition.
4. According to the eleventh defendant, who is the revision petitioner, there is no cause of action for the suit. The plaintiffs have suppressed the earlier proceedings before the Court and filed the present suit. The petitioner obtained a decree for certain amount against the respondents' father and in execution of the decree, the property of the respondent was proceeded with. The eleventh defendant's husband had purchased the suit property in Court auction on 3/7/1984 in O.S.No.717 of 1978. In the said suit, the present plaintiffs and their parents were parties. It was taken up on revision in C.R.P. Nos.3271 and 3276 of 1984. Pending revision, the plaintiffs' father Ramamurthy died and hence, the present plaintiffs had entered into a compromise with the revision petitioner's husband and allowed the Civil Revision Petitions to be dismissed as withdrawn on 19/9/1985.
5. In the above circumstances, according to the revision petitioner, finality has been reached in O.S.No.717 of 1978 even 28 years ago. As such, the present suit is only a re-litigation and it has to be rejected. The petitioner also had raised objections regarding the payment of Court fees. Hence, the petitioner had contended that the suit is barred by res judicata and there is no cause of action and that the Court fee paid was incorrect.
6. On all the above grounds, the petitioner has sought for rejection of the plaint.
7. The said application was resisted by the respondents contending inter alia that the petition itself is vexatious and frivolous one. There are several causes of action for the suit more particularly, when O.S.No.717 of 1978 was filed and pursuant to the same, E.P.No.141 of 1981 was filed for bringing the property for sale which would give rise to the cause of action. The first defendant and the members of the family are colluding together and created an unenforceable partnership deed. The Court auction purchaser, who is the husband of the eleventh defendant was allegedly said to have retired from the partnership and the partnership was reconstituted.
8. It was also contended that the said Ramakrishnan, the Court auction purchaser, though claimed to have taken only the first lot in the Court auction on 11/1/1984, he had claimed to have purchased the entire property as set out in the Execution Petition. Thus, the property was purchased in the Court auction and obtained the sale certificate conceitedly. The said Ramakrishnan even after purchasing the property in Court auction, had not taken possession of the same. Without establishing the factum of taking possession, it is submitted by the defendant that her husband has been in possession of the property, pursuant to the auction sale which is a patent lie and that no proceedings was taken for taking possession of the property from the date of auction sale. The defendant also had not produced any documents to that effect. Therefore, the alleged sale had not been acted upon and it had not come into force. It can be deemed only as sham and nominal document. For this reason, the plaintiffs have sought for declaration that the sale deed dated 11/1/1984 is void, sham and nominal.
9. The two revisions in C.R.P.Nos.3271 and 3276 of 1984 were filed by the father of the plaintiffs. But pending the proceedings, he died. As the said auction purchaser and a partner of V.R.V & Co., viz., V.Subramanian, compromised among themselves, the Civil Revision Petitions were also dismissed on 19/9/1985. Therefore, the allegation of the defendants that there was no cause of action for the suit is unacceptable.
10. It was further contended by the plaintiffs that the revision was withdrawn not pursuant to compromise, and, therefore, the order in the revision is not binding on the plaintiffs. The husband of the eleventh defendant had been inducted as a partner only after the alleged sale. He had also not taken delivery of the property pursuant to the said sale through Court. Without taking delivery through Court, the husband of the revision petitioner in collusion with the family members of the first defendant claims to be in possession of the property. The first defendant has not sought for permission of this Court to purchase the suit property. The other allegations viz., the payment of Court fees etc., can be only decided at the trial of the suit. The application under Order 7 Rule 11 of the Code of Civil Procedure can be decided based on the plaint allegations alone. Hence prayed for the dismissal of the application.
11. The Fast Track Court, Dindigul, who heard the matter, considering the arguments and evidence, dismissed the application. Aggrieved by the same, the above Civil Revision Petition has been filed.
12. A few relevant facts that are necessary for the consideration of the above revision are as follows:-
Originally, the property belonged to one Ramamurthi whose wife was one Mangayarkarasi. They had two sons and a daughter. The sons are the plaintiffs in the suit. There were totally nine deeds of mortgage in and by which the said Ramamurthi and his sons and daughter, executed a mortgage in favour of M/s. V.R.V and Co., represented by its partner Krishnamurthi, S/o. Venugopal Iyer. As per the recitals of the mortgage, there were subsisting mortgages. The plaintiffs subsequently, purchased an extent of 40 acres adjoining the suit property on 04/9/1998.
13. The revision petitioner, who is the eleventh defendant contended that the suit has to be rejected as there is no cause of action for the suit and the suit is not being valued properly and the Court fee paid is deficit and the suit is also barred by limitation.
14. From a perusal of paragraph 9 of the plaint, it is clear that the cause of action for the suit arose on 26/6/1969, the date on which the first mortgage was executed and the subsequent mortgages were executed on subsequent dates, on the date when O.S.No.717 of 1978 was filed, on the date of auction in E.P.No.141 of 1981 and on 4/9/1998 the date on which the sale had taken place and on subsequent dates during which time, the mutation of revenue records were made.
15. But the revision petitioner contended that the very cause of action is wrong, as on 3/7/1984 itself when the properties were brought on sale in E.P.No.141 of 1981, the plaintiffs could have objected to the same. Even against O.S.No.717 of 1978, it was open to the plaintiffs to challenge the same in an appeal. Without resorting to the legal remedies available, after 40 years, the present suit has been filed challenging the sale certificate as not maintainable. The plaintiffs ought to have filed the suit within 60 days from the date of the sale. Therefore, the revision petitioners contended that after 60 days from the date of taking the property in auction, the husband of the eleventh defendant became the absolute owner and the said auction purchase by the petitioner's husband was subject to the mortgage. The Court auction purchaser ought to have discharged the mortgages subsisting on the date of sale. Therefore, there is no cause of action for the plaintiffs to file the suit.
16. Before proceeding into the facts involved in the issue on hand, it is necessary to examine the power under Order 7 Rule 11 CPC. For better appreciation, the provision is extracted herein:-
?11. Rejection of Plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]?
17. Clause A deals about the disclosure of cause of action. The idea undermined in the said provision is that when no cause of action is disclosed in the plaint, the Court will not unnecessarily protract and the party should not be unnecessarily harassed in the suit. For the purpose of invoking the power, the Court has to read the plaint whether it discloses the cause of action and it if it does, then the plaint cannot be rejected by the Court by exercising power under Order 7 Rule 11 CPC. It is a trite law that the cause of action is a bundle of facts and whether the plaint discloses cause of action is a question of fact which has to be gathered based on the averments made in the plaint in its entirety by taking those averments to be correct. So long as the plaint discloses some cause of action which requires determination by the Court, the mere opinion that the plaintiff may not succeed cannot be a ground for rejection of the plaint.
18. Already, O.S.No.214 of 1980 was filed and there is an order of injunction. While so, whether the present suit is maintainable is to be decided. While filing an application under Order 7 Rule 11 of the Code of Civil Procedure, the Court is bound to see whether the case on hand falls within six limbs stated in the said Rule. If the suit is not falling under any of those categories, the plaint cannot be rejected. But in this case, the petitioner has contended that on 11/1/1984, the auction sale was held. On 12/3/1984, the petition under Order 21 Rule 89 of the Code of Civil Procedure was filed to set aside the sale in which E.A.No.128 of 1984 was filed for dispensing with the security. However, the said application was dismissed on 19/4/1984. Thereafter, the sale was confirmed on 3/7/1984. Aggrieved by the same, the two revisions were filed in C.R.P.Nos.3271 and 3276 of 1984.
19. C.R.P.No.3271 of 1984 was filed challenging the execution petition whereas C.R.P.No.3276 of 1984 was filed against the dismissal of E.A to set aside the sale. Pending the revisions, the said Ramamurthi died. On 13/9/1985, the plaintiffs were brought on record. However, on 19/9/1985, Civil Revision Petitions were withdrawn. The said C.R.P and incidental proceedings were not mentioned in the plaint which amounts to suppression of facts. The learned counsel for the defendant contended that the present suit is a re-litigation and hence the plaint has to be rejected.
20. The learned counsel for the respondents/plaintiffs contended that when there is a cause of action, even if it is on one date, the suit cannot be rejected as no partial rejection of the plaint is allowed. According to the learned counsel for the respondents, there is no question of re- litigation as there cannot be any partial rejection of the plaint. The Court auction purchaser was inducted as a partner subsequent to the reconstitution of the partnership. The said reconstitution should be only by a registered document. Therefore, the prayer No.3 is also not barred.
21. The petitioner's counsel had sought for rejection of the plaint on the following grounds:-
(i). The revision petitioner's husband had purchased the property in Court auction and the revision challenging the same was dismissed as withdrawn.
(ii). The present suit filed is an abuse of process of law for having suppressed the earlier suits.
(iii). The present suit is a relitigation which cannot be allowed.
22. The learned Senior Counsel for the petitioner contended that it is a re-litigation which cannot be permitted in Law for which reliance was placed on K.K.MODI Vs. K.N.MODI AND OTHERS reported in {1998 (3) SCC ? 573}, wherein in paragraph Nos. 42 and 44, it has been held as follows:-
?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 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 8 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 counts 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.
44. One of the examples cited as an abuse of 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 nor may not be barred as res judiata. 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 special cases. The Court should also be satisfied that there is no chance of the suit succeeding.?
23. In BASANTHMAL JAVAAJI Vs. SHREYA NAS NAHAR reported in 2008 (2) MLJ ? 51, in paragraph Nos.16 and 17, it has been held as follows:-
?16. Even going by the plaint averments, in my considered view the plaintiff has no semblance of right over the suit property. The case is a clear case of the re-litigation on the same issue. As discussed earlier,the plaintiff, his Brother and Parents have filed suits after suits with a view to thwart the sale under Section 69 of T.P Act and other proceedings.
17. It is fairly well settled that one of the most abuse of process of Court is re-litigation. It is an abuse of process of Court and contrary to justice and public policy for a party to re-agitate the same issue. Re-
agitation may or may not be barred by res judicata, but when the same issue is sought to be again re-agitated, it amounts to abuse of process of Court.?
24. It is contended by the learned counsel that the present suit as filed is a re-litigation. Insofar as the prayer for declaration that the mortgages are discharged is concerned, already O.S.No.717 of 1978 has been filed in which the suit property was also brought to sale and the challenge against the sale was also dismissed as withdrawn. With respect to the prayer for declaring the sale as null and void, the same also had reached the finality in the previous litigation. Therefore, the learned counsel for the petitioner contended that it is a re-litigation which cannot be entertained and the same has to be dismissed.
25. The next decision relied upon by the petitioner is NESAMMAL AND ANOTHER Vs. EDWARD AND ANOTHER [1998 (3) CTC ? 165] wherein in paragraph 11, it has been held as follows:-
?In view of all these decisions, the argument of the counsel for the petitioners that unless the conditions are satisfied under Order 7 Rule 121 of the Code of Civil Procedure, the plaint cannot be rejected is without any basis. The provisions of Order 7 Rule 11 are not exhaustive and the Court has got inherent powers to see that the vexatious litigations are not allowed to take or consume the time of the Court. In appropriate cases, directions can be given by this Court as well as the Court in which the suit is filed not to entertain the suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law. In this case all the grounds are made out and the very same plaintiff who got defeated in the litigation has agitated the very same issue by filing the present plaint. I appreciate the stand taken by the lower Court in rejecting the plaint at the threshold.?
26. Citing the above decision, it was contended that though the provisions of Order 7 Rule 11 of the Code of Civil Procedure are not exhaustive, the Court has got inherent powers to see that frivolous and vexatious litigations are nipped in the bud. Once the Court finds that the plaint allegations would be an abuse of process of Law, the plaint can be rejected on the same ground. As in this case, even if the plaint filed does not come under any of the six limbs as contemplated under Order 7 Rule 11 of the Code of Civil Procedure, still it is open to the Court to reject the plaint.
27. In the above decision also, it is held that although re-litigation or re-agitation of the same issue may not strictly constitute res judicata, when again and again, the time of the Court is wasted by re-agitating the same issue, it would amount to abuse of process of the Court.
28. The learned counsel for the respondents contend that a suit cannot be partially rejected and placed his reliance for the same on SOPAN SUKHDEO SABLE & ORS Vs. ASSISTANT CHARITY COMMISSIONER & ORS reported in {2004 (2) L.W.-800 (SC)}, wherein in paragraph 11, it has been held as follows:-
?There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. 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 or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities. ?
29. In D.RAMACHANDRAN Vs. R.V.JANAKIRAMAN AND OTHERS reported in {1999 (1) CTC ? 715}, in paragraph 10, it has been held as follows:-
?10. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII, Rule 11 (a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of O.VII R.11(a) C.P.C. can not therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under O.VII R.11 (a) C.P.C., the Court can not dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there can not be a partial rejection of the plaint or petition. See Roop Lal Sathi Versus Nachhattar Singh Gill (1982) 3 S.C.C. 487. We are satisfied that the election petition in this case could not have been rejected in limine without a trial. ?
30. The next question that has to be decided is whether the suit can be rejected on the ground of limitation.
31. It is held in many decisions of this Court as well as the Hon'ble Supreme Court that the applicability of one or other provisions of the Limitation Act, per se cannot be decisive for the purpose of determining the question as to whether the suit is barred by Law of Limitation. Unless the issue is framed in this regard and decided, the question of limitation cannot be decided on the face of the plaint. The question of limitation is a mixed question of law and fact.
32. To support his contention, reliance was placed on C.NATARAJAN Vs.ASHIM BAI & ANOTHER [2008 (1) L.W ? 96], wherein in paragraph 9, it has been held as follows:-
9. The question which was raised before the learned Trial Judge was different from the question raised before the High Court. Before the learned Trial Judge, as noticed hereinbefore, the provisions of the Limitation Act were brought in with reference to the identification of the property. It was not contended that the suit was barred by limitation in terms of Article 58 of the Limitation Act, 1963. The High Court, therefore, in our opinion, ex facie committed an error in arriving on the aforementioned finding. The scope of applicability of the Limitation Act vis-`-vis Order VII Rule 11 of the Code of Civil Procedure has been considered in some recent decisions of this Court to which we may advert to.
33. The next contention that the plaint had not disclosed all the facts and it has suppressed the previous litigation was the main contention of the petitioner. This was assailed by the learned counsel for the respondents contending that the Court cannot go into the question whether the cause of action alleged in the plaint is true or false while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure. Therefore, that cannot be made as a ground for rejection of the plaint. This aspect was considered in R.ARUMUGAM Vs. PR.PALANISAMY AND OTHERS reported in {2013 (1) MWN Civil 531} and the relevant passage reads as follows:-
?10. A reading of the said rule will show that neither suppression of fact nor misrepresentation, not even fraud, has been made a ground for rejection of plaint. Even the rule does not include abuse of process of court as a ground for rejection of plaint. Clauses (a) and (d), which deal with absence of disclosure of cause of action and the suit appearing from the statement to be barred by any law. Whether the plaint discloses a cause of action for the suit or not, has got to be decided only based on the averments made in the plaint and the documents produced along with the plaint. The cause of action alleged may not be true or may be a deliberate falsehood. The court dealing with a petition under Order VII Rule 11 cannot go into the question whether cause of action alleged in the plaint is true or false and take a decision based on the defence plea taken by the defendant or based on the documents produced by the defendant. On the other hand, there may be cases in which the plea made in the plaint itself having the effect of destruction of the plea regarding the cause of action and making such plea regarding cause of action illusory. Only in such cases, the court has to decide whether the cause of action alleged in the plaint is real or that the plaint has been drafted in an intelligent manner to camouflage an illusory cause of action as a real cause of action. A cause of action alleged in the plaint being illusory different from the cause of action alleged in the plaint being false. Only in the former case, the court can reject the plaint on the ground that the plaint does not disclose a cause of action and not in the latter case.
11. Citation of a false cause of action, fraud, misrepresentation or the filing of the suit being an abuse of process of court, can, at the best, be projected as a preliminary issue. All questions, which can be decided as preliminary issues, cannot be made as grounds for rejection of the plaint unless the ground is brought within the purview of Order VII Rule 11 CPC. The distinction between the rejection of a plaint under Order VII Rule 11 CPC and the dismissal of the suit on a preliminary issue should be kept in mind. In case of rejection of plaint, the same will not bar a fresh suit. Rule 13 under Order VII CPC provides for the same, which reads as follows:
13. Where rejection of plaint does not preclude presentation of fresh plaint The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.But the dismissal of the suit on the question of maintainability and on the other hand, based on the decision regarding a preliminary issue operates as a bar for a fresh suit on the same cause of action. Even the question of jurisdiction and a bar created to the suit by any law for the time being in force, if it is raised in the defence plea that cannot be the ground on which the plaint can be rejected unless the attraction of such a bar is manifest from the pleadings made in the plaint. Without the aid of the defence pleadings or any other document, the statements made in the plaint themselves should make it appear that the suit is barred by any law for the time being in force as contemplated in sub clause (d) of Rule 11 of Order VII CPC. If such a question of attraction of a bar to the suit created by any law for the time being in force is raised in the written statement or the defence plea, the same can be tried as a preliminary issue under Order XIV Rule 2(2) of CPC. This position has been made clear in a number of judgments by the Hon'ble Apex Court and it shall be sufficient to refer to some of the recent judgments of the Apex court.?
34. In J.LILI JABAKANI AND OTHERS Vs. T.A.CHANDRASEKHAR reported in {2006 (5) CTC ? 848}, it is held that a suit can be amended and the same cannot be rejected so far as the averment discloses the cause of action or raises questions fit to be decided by the Court and in such event, the mere fact that the suit is framed in different manner or that the suit is weak on account of such improper framing or that the plaintiff cannot succeed are not grounds for rejecting the plaint.
35. The learned counsel for the petitioner argued at length that the filing of the suit in O.S.No.98 of 2009 is apparently a re-litigation and abuse of process of law. But the learned counsel for the respondents contended that fraud vitiates everything and the question of fraud can be agitated even in collateral proceedings. However, that can be established only by oral and documentary evidence, in short, by means of trial.
36. It was further contended by the learned counsel for the plaintiffs that the revision petitioner had not filed a written statement in the suit. Even without filing a written statement, the petitioner cannot demand for rejection of plaint simply based on affidavit averments.
37. It is a settled proposition of law that the rejection of plaint has to be considered only on the basis of the pleadings in the plaint. The learned counsel for the petitioner also raised the doubt about the orders passed in C.R.P.No.3271 and 3276 of 1984. It was submitted that after the death of W.P.A.R.Ramamurthi, his legal heirs were not brought on record in the manner known to law. Unless the revision petitioner is subjected to cross-examination, the said facts cannot be proved.
38. A Plaint should not be rejected under Order 7 Rule 11 of Civil Procedure Code at the initial state without proper enquiry. At the same time, a Court of Law has enough powers to see that vexatious litigations are not allowed to consume the time of the Court. However, a Plaint should be rejected as per Order 7 Rule 11 of Civil Procedure Code where it does not disclose a cause of action and not where there is no cause of action. A Plaint would be read as a whole and the merits of the case are not to be considered at this stage.
39. From the submissions made by both sides, this Court is of the considered opinion that the allegations made in the plaint cannot be gone into at the threshold as it is a matter to be tried in suit. The allegation of suppression of fact, misrepresentation or even fraud cannot be a ground for rejection of plaint. Even if the cause of action pleaded is false or deliberate falsehood, the same cannot be gone into in an application under Order 7 Rule 11 of the Code of Civil Procedure.
40. It is a settled proposition by various decisions of the Hon'ble Supreme Court that while considering an application under Order 7 Rule 11 of the Code of Civil Procedure, the plea taken in written statement would be irrelevant. In this case, as stated supra, the petitioner has not even filed written statement and whether there is any suppression of material facts can be ascertained only from the pleadings made in written statement and followed by evidence. The contention of the petitioner that some of the allegations are not true, is unacceptable as the plaint cannot be rejected in part.
For the above reasons, the order of the trial Court is confirmed and the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
To
1. The Principal Subordinate Judge, Madurai
2. The District Munsif, Madurai Taluk, Madurai.