Madras High Court
Dindigul Pettai Sathangudi Shatriya vs Selvaraj Sundar on 17 December, 2008
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:17/12/2008
CORAM
THE HONOURABLE MR. JUSTICE S.PALANIVELU
C.R.P(PD)(MD)NO.75 of 2008
and
M.P.(MD)NO.1 of 2008
1. Dindigul Pettai Sathangudi Shatriya
Nadar Uravinmurai,
through its Secretary
having Office at
Sathangudi Nadar Marriage Hall,
Madurai Road,
Dindigul Town.
2. Thirumangalam Pandiar Kula
Shatriya Nadar Uravinmurai at
Dindigul,
through its Muthalmuraikarar,
having Office at
Sathangudi Nadar Marriage Hall,
Madurai Road,
Dindigul Town. ...Petitioners
vs
1. Selvaraj Sundar
2. Abraham ...Respondents
PRAYER
Civil Revision Petition filed under Article 227 of the Constitution of
India, praying to strike off the proceedings in E.A.No.271 of 2007 in E.P.No.89
of 2003 in R.C.O.P.No.6 of 1990, on the file of the Principal District Munsif
Court, Dindigul.
!For Petitioners ...Mr.K.Srinivasan
^For Respondent-1 ...Mr.R.Subramanian
:ORDER
The suit property, situated in Dindigul Town in 5th Ward, covered by R.C.O.P Proceedings belongs to the petitioners. It is stated that the second respondent was a tenant under them, who took the property on lease from them in the year 1964, agreeing to pay monthly rent and it was subsequently fixed at Rs.170/-p.m. from February 1986. Since he committed wilful default in payment of rent right from February 1986, the first and second respondents filed R.C.O.P.No.6 of 1990, on the file of the Rent Controller(Principal District Munsif court), Dindigul, for eviction. The said petition was strongly resisted by the second respondent by stating that the first and second respondents are not the owners of the property, but denied the title to the property by pleading that the property originally belonged to the State Government and he occupied the same in the year 1964, improved the property and running a business of making cement pipes, Cement Plates etc., and also by making construction thereon and a portion of which was also used by him for residential purpose. It is his further contention that he has been residing along with his family members in the property, running the business and that the Government has also issued "B-Memo"
to him which would show that the property belongs to the Government. It is further stated that there is no relationship of landlord and tenant existing between them and that he has taken all steps to get a patta in his name. On the defence of denial of title, he opposes the eviction application.
2. On the appreciation of oral and documentary piece of evidence, the learned Rent Controller accepted the claim of the third respondent and dismissed the Rent Control Application. The Petitioners carried the matter in appeal before the Rent Control Appellate Authority, namely, the Principal Subordinate Judge, Dindigul, in R.C.A.No.2 of 2000 and the appeal was allowed by the appellate authority observing that the relationship of landlord and tenant is existing between the parties and that it is not correct on the part of the second respondent that the petitioners have no title over the property.
3. Thereafter, he respondent preferred a revision before this Court in C.R.P.No.527 of 2003, challenging the order passed by the appellate authority and the said Civil Revision Petition was dismissed by this Court on 27.08.2007, confirming the orders passed by the appellate authority. Even in the year 2003, the petitioners filed an Execution Petition in E.P.No.89 of 2003 and the same has been pending before the Principal District Munsif Court, Dindigul. After the disposal of the Civil Revision Petition by this Court, the present first respondent, son of the second respondent filed an application in E.A.No.27 of 2007 in E.P.No.89 of 2003, under Order 21 rule 10 and Section 151 of C.P.C praying the Court to declare that he himself has the right over the property and for declaration that the order passed in R.C.O.P.No.6 of 1980, on the file of the Rent Controller, Dindigul, is null and void and inexecutable and it is not binding on him. These petitioners filed a detailed counter to the said Execution Application.
4. It is the quintessense of the contention of the first respondent in his application that his father occupied the property as a vacant site in the year 1964 and he was enjoying the same by putting up pucca super structures and started a manufacturing unit dealing with cement tank, cement pipes etc., in the name and style of "Abraham Cement Works", which was levied with Penal Tax by the Government. It is further stated that there was some misunderstanding between the first respondent and his sister Premashanthi with regard to the allotment of family properties and in settlement reached among them, the schedule property was allotted to him by means of execution of an Undertaking Deed in favour of the petitioner on 24.08.1994. It is an unregistered document as per their contention and hence right from the year 1984, the first respondent has been in possession and enjoyment of the property by paying Penal Tax and Professional Tax. It is his contention that from 1984 onwards, the second respondent was no longer the owner of the property, but he himself has been in possession and enjoyment.
5. The above said allegations are stoutly denied in the counter filed by these respondents, by vividly mentioning that these respondents alone were the owners of the property and the third respondent had been a tenant under them. The alleged assignment proceedings by the Revenue Authorities was also rejected by the District Collector on 30.01.1988 and the same was filed as Ex.A14 in R.C.A.No.2 of 1999 and it was appreciated by the appellate authority and a finding was also rendered in favour of these Petitioners.
6. The circumstance of this case has led the court to reappraise the oral evidence and documentary evidence to some extent. It is available from the orders passed by the Rent Control Authority that the documents produced by the petitioners have clearly established the fact that the third respondent was a tenant under them and that he committed wilful default and the plea of denial of title was not true. Even though, the Rent Controller has rejected the claim of the first and second respondents, the appellate authority has recognized their rights and has clearly opined that the second respondent is a tenant. Top of all, this Court in C.R.P.No.527 of 2003, has scrutinized the materials available before both the fora below and observed that the petitioners are owners of the property and under him the second respondent has been a tenant and that the landlords and tenant relationship is existing between them. This Court has also found that the second respondent has committed wilful default and his setting up of title of the property upon the Government as force.
7. The learned counsel for the first respondent Mr.R.Subramanian laboured hard to convince this Court in showing that the petitioner has become the owner of the property in the year 1984 by means of an undertaking document dated 24.08.1984 and from that period he has been in possession of the property and the documents produced by him in the Execution application in E.ANo.271 of 2007 would show the fact. A perusal of the list of documents annexed to the Execution Application shows that he has produced some documents. It is his further contention that having the petition been filed before the Executing Court for specific reliefs, it may see its logical conclusion and this Court need not invoke Article 227 of the Constitution of India to strike off the pleadings in the application and that the facts could be established by adducing oral evidence before the said court.
8. Conversely, the learned counsel for the petitioners Mr.K.Srinivasan would submit that it is a relitigation and reagitation of the pleadings which were already raised by the second respondent but negatived by this Court and this is the abuse of process of court.
His contention is two-folded. Firstly, the first respondent has no independent pleadings, but he has adopted identical contentions as raised by his father and that the title set up by his father upon the Government was not accepted by the appellate authority and this Court and hence this Court by invoking Article 227 of the Constitution of India, can strike off the pleadings in the Execution Application in the interests of justice.
9. It appears that the Undertaking Deed executed by the father of the first respondent is an unregistered one. Needless it is to say that when the interest in an immovable property is transferred, it must be on the basis of a registered document. The learned counsel for the petitioners would submit that the judicial pronouncements of the Supreme Court and this Court have thrown light on the subject with regard to the exercise of powers of the High Court under Article 227 of the Constitution of India. The learned counsel for the petitioners placed reliance upon a decision in S.P.Chengalvaraya Naidu(dead) by L.Rs., v.s.jagannath(dead) by L.Rs., and others reported in AIR 1994 Supreme Court 853, in which Their Lordships have held that "a person whose case is based on falsehood, has no right to approach the court and he can be summarily thrown out at any stage of the litigation". By citing this authority, the learned counsel for the petitioners would submit, repelling the contention of the learned counsel for the first respondent that there is no need for a full- fledged trial in E.A.No.271 of 2007, because already the matter in issue was decided by the appellate authority and this Court.
10. He also cites a decision in Maria Soosai and another .vs. Esakkiammal reported in 1999-1-L.W.727 in which the Learned Judge after referring and following the decision of the Apex Court in K.K.Modi .vs. K.N.Modi reported in 1998(2) AIR SCW 1166, observed that if frivolous or vexatious litigations are found by the court, it can be termed to be abuse of process of Court, Where the proceedings are absolutely groundless.
The following is the exact extraction of the portions in the Supreme Court decision contained in Maria Soosai's case, which is as follows:
"14....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."
"...Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not..."
11. As per the above said dicta, if a party has initiated a vexatious or frivolous litigations in order to harass the other party, the Court can nip the attempt in the bud itself, irrespective of the stage of such proceedings.
12. In a decision in Senni @ Sundarammal .vs. 1. Ramasamy Poosari 2. Assistant Commissioner, Hindu Religisous Endowment, Virudhunagar, 3. The joint Commissioner, Hindu Religious and Charitable Enodwment, Sivagangai reported in 2001-1-L.W 202, this Court has observed, following decisions of the Supreme Court that:
"Process of Court must be used bonafide and properly and must not be misused or abused and it is the duty of the Court to prevent improper use of its machinery. The Court has to see that it is not used as a means of oppression and the prcess of litigation is free from vexatiousness. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process would depend upon the relevant circumstances. But, it has to be judged from the angle of interest of justice and public policy."
13. As per the opinion expressed by this Court, if the court is of the view that a particular litigation is a totally unnecessary one, which was initiated with a view to harass the other side, the Court can discern the circumstances, decide and to hold that it is an abuse of process of court.
14. The learned counsel for the petitioners also garnered support from a decision of this Court in S.Viswanathan .vs. M/s. Sri Muruga Agencies, represented by its Partner, R.V.Ramasamy and two others reported in 2002(1) CTC 277 in which it is held that:
22. "If the parties are allowed to play hide and seek and hood-wink the process of law, people will lose faith in the Courts and if a legitimate relief and decree obtained are rendered only a piece of paper and cannot be executed and the law breaker is given a green signal to continue his high handed activity, it will badly reflect only ineffective administration of justice and result in loss of confidence in the courts..."
15. In yet another decision of this Court in K.K.Swaminathan .vs. Srinivasagam reported in 2004-1-L.W.250, this Court, following the decision in K.K.Modi"s case(cited supra) came out with an identical opinion as expressed by this Court in the foregoing decisions.
16. Resisting the above said contentions, the learned counsel for the first respondent would rely upon a decision of the Supreme Court in Surya Dev Raj .vs. Ram Chander Rai and others reported in (2003) 6 Supreme Court Cases 675, in which the Honourable Supreme Court has formulated as many as nine guidelines to be observed by the High Courts in assessing the vexatious and frivolous litigations and to exercise the supervisory jurisdiction under Article 227 of the constitituion of India. The relevant guideline as framed by the Supreme Court in its decision goes thus:
"(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction."
17. Placing reliance upon a decision in Ajay Bansal .vs. Anup Mehta and others reported in (2007) 2 Supreme Court Cases 275, the learned counsel for the first respondent further contends that if any contentious issue is involved in a litigation, even though it was covered by the previous proceedings, the High Court need not invoke Article 227 of the Constitution of India, for the reason that the said issue has to be decided by the trial court after scrutinizing the oral evidence on record and documentary materials. He indicates the relevant portion in the decision which goes as follows:
17. A contentious issue viz., maintainability of writ petition without challenging the decree has been raised, We,however, in this case, do not intend to go into the said issue, inter alia, for the reason that the learned Judge has not assigned any reason in support ofthe impugned judgement....".
18. The circumstances available in these proceedings are distinguishable.
Their Lordships have observed that the contentious issue namely the writ petition was before the High Court and the learned Subordinate Judge has not assigned any reason in support of the impugned judgement and hence they did not intend to go into the said issue. Adverting to the facts of the present case, there is no contentious issue. In the considered opinion of this Court, for the reason that the first respondent says that he is deriving the right in the property from his father on the strength of a deed reportedly executed in the year 1984, raising a plea akin to the one which was taken by his father in the earlier proceedings and the matters were settled by this Court already with respect to the property and hence it could not be stated that the present proceedings involves any contentious issue and the first respondent cannot take recourse to the above said decision of the Apex Court.
19. The leaf of contention of the learned counsel for the first respondent is that alternative remedy of filing an application under order 7 Rule 11 of Civil Procedure Code is very much available to the petitioners to strike of the pleadings in E.A.No.271 of 2007 even before the Executing Court and this Civil Revision Petition under Article 227 of the Constitution of India is not at all sustainable. In support of his contention, he placed reliance upon two decisions of this Court in Ganesa Naicker and another .vs. Kokilambal and others reported in (2005) 4 MLJ 155 and in R.Jaivel, the President, Mettupatti Multi Purpose Worker's Industrial Co-operative Society Limited, 63, Ramasamy Street, Namakkal-637 001 .vs. State of Tamil Nadu, represented by the Superintending Engineer, P.W.D., Tank Modernisation Circle, Vellore-9 reported in 2006 (2) CTC 709, in which it is held when an alternative remedy is available, a petition under Article 227 of the Constitution of India need not be taken out, without exhausting such remedy.
20. In considered opinion of this Court, whenever this Court finds any abuse of process of Courts and if the proceedings initiated are possessing the elements of frivolousness and vexatiousness, this Court can very well pass appropriate orders, invoking Article 227 by exercising supervisory jurisdiction.
21. Following the dictum in Surya Dev Raj's case (supra) the interest of justice, it is also to be observed that in all the cases it need not be held that a particular party has to exhaust the alternative remedy and however every case depends upon its nature, facts and circumstances.
22. The learned counsel for the first respondent also draws the attention of this Court to the principles laid down by this Court while dealing with the scope of Article 227 of the Constitution of India in a decision reported in Ganapathy Subramanian .vs. S.Ramalingam and others reported in (2007) 7 MLJ 13 in which the learned Judge has observed thus:
"16. The supervisory jurisdiction of this Court could be invoked only when the trial Court has committed any error. Mere filing of a suit by the respondents and taking the suit on thefile by the trial Court cannot be regarded as an act on the part of the trial Court to transgress its jurisdiction or its bound. Of course, the party who files the suit might have filed the suit suppressing material facts or made up the suit to his convenience for seeking the relief which is not otherwise entitled to. But that facto has to be considered by the trial Court during the relevant point of time...."
23. As far as the scope of exercising the supervisory jurisdiction under Article 227 is concerned, the duty of this Court is to infer or discern any vexatious or frivolousness in the proceedings initiated.
24. In so far as the facts of the present case are concerned, with the cost of repetition, it is stated that the petitioners have not taken any independent plea but reiterated the defence already raised by his father as his own plea. As adverted to supra, the appellate authority as well as this Court have finally decided the rights of the parties in the R.C.O.P Proceedings by stating that the petitioners are landlords as respects the property. Allowing the Executing Court to proceed with the hard task recording the oral evidence, assessing the rights of the parties and to adjudicate them would be waste of judicial time and in the considered view of this Court, the present litigation by the first respondent is abuse of process of court and the pleadings in E.A.No.271 of 2007 have to be struck off, in the interest of justice, bearing in mind the fact that there shall be no second round of litigation with respect to the rights already discussed and settled by this Court, besides which the matter also set at rest by this Court. Moreover, there is no appeal from the order passed in C.R.P. by this Court.
25. In the light of the circumstances, guided by the illuminating judicial pronouncements by the Supreme Court, it is directed that E.A.No.271 of 2007 shall be struck of from the file of the Executing Court and the Civil Revision deserves to be allowed.
26. In fine, the Civil Revision Petition is allowed. No costs.
vsn To The Principal District Munsif, Dindigul.