Madras High Court
V.Kumar vs R.Natarajan on 17 June, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CRP (PD) No.1624 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P (PD) No.1624 of 2018
and
CMP.No.8791 of 2018
1. V.Kumar
2. V.Saraswathi ... Petitioners
Vs.
1. R.Natarajan
2. V.Balakrishnan
3. V.Raja
4. D.Kannan
5. Paramaguru
6. Deivanayagam
7. Maheswari
8. Usha ... Respondents
Prayer : Civil Revision Petition is filed under Section 115 of the Code of
Civil Procedure, to set aside the fair and decretal order dated 28.03.2018
made in I.A.No.712 of 2015 in O.S.No.88 of 2015 on the file of the
learned District Munsif, Thiruvarur by allowing this Civil Revision
Petition.
For Petitioners : Mr.N.Manokaran
For Respondents : Mr.S.Sounthar (for R-1)
: Not Ready in Notice
(No Appearance)
(for R-2 to R-5 and R-8)
: Notice Served (No Appearance)
(for R-6 & R-7)
https://www.mhc.tn.gov.in/judis/
1/19
CRP (PD) No.1624 of 2018
ORDER
This Civil Revision Petition is directed against the fair and decretal order passed in I.A.No.712 of 2015 in O.S.No.88 of 2015 dated 28.03.2018 on the file of the learned learned District Munsif, Thiruvarur, thereby dismissing the petition filed for rejection of plaint.
2. The petitioners are the defendants 2 and 4 and the first respondent is the plaintiff. The first respondent filed the suit for declaration in respect of the suit schedule property and mandatory injunction along with the recovery of possession in respect of the suit schedule property. While pending the suit, the petitioners filed a petition for rejection of plaint and the same was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed.
3. The learned counsel for the petitioners submitted that in respect of very same reliefs, the first respondent already filed a suit in the year 1999 in O.S.No.135 of 1999 on the file of the learned District Munsif, Thiruvarur in respect of part of the suit property. In respect of other part of the suit schedule property for the very same prayer, he filed a suit in https://www.mhc.tn.gov.in/judis/ 2/19 CRP (PD) No.1624 of 2018 O.S.No.136 of 1999 on the file of the learned District Munsif, Thiruvarur. Both the suits were tried and dismissed together by the judgment and decree dated 29.01.2015. Thereafter, the present impugned suit has been laid by the first respondent on the very same cause of action, which was arisen in the year 1994 for the very same relief in respect of the very same property. Therefore, the suit itself is barred by limitation. The suit is also hit by Order II Rule 2 of the Civil Procedure Code. When the cause of action arose for filing of the earlier suits, the present reliefs sought for in the present suit was very much available to the first respondent at the time of earlier suits. Even then, without leave of the Court as contemplated under Order II Rule 2 of the Civil Procedure Code, the present impugned suit has been laid. The present suit has been filed only after dismissal of the earlier suits, that too after giving a finding on issue that the suits are not maintainable without a prayer of the declaration. In the earlier suits, the petitioners categorically denied the title of the first respondent over the suit property by way of written statement, even then, the first respondent failed to amend the prayer for a declaratory decree. Therefore, the trial Court ought to have rejected the plaint on the ground that the suit itself barred by limitation and the suit is hit by Order II Rule 2 of the Civil Procedure Code. In https://www.mhc.tn.gov.in/judis/ 3/19 CRP (PD) No.1624 of 2018 support of his contentions, the learned counsel for the petitioners relied upon the judgments of the Hon'ble Supreme Court of India reported in 2020 (45) CTC 471 (Dahiben -vs- Arvindbhai Kalyanji Bhanusali (Gajra)(D) thr L.Rs.), 2020 (10) SCC 601 (Raghwendra Sharan Singh
-vs- Ram Prasanna Singh (Dead) and 2019 (4) CTC 610 (Pramod Kumar -vs- Zalak Singh).
4. Per contra, the learned counsel for the first respondent submitted that though the earlier suits filed by the first respondent were dismissed by the Court below, the first respondent was given liberty to file a suit for declaration, possession and injunction. In the said judgment, it is observed that however, it is open to the plaintiff to file a fresh suit against the defendants for declaration, possession and injunction. Therefore, the suit is very much maintainable and does not hit by Order II Rule 2 of the Civil Procedure Code. Insofar as the limitation is concerned, Section 14 of the Limitation Act save the limitation to file the present suit. Therefore, the suit is not barred by any law. Further, in the suit there are so many issues involved and the entire plaint is coupled with the bundle of facts and issues and as such, it cannot be rejected at its limine and prayed for dismissal of this Civil Revision Petition. https://www.mhc.tn.gov.in/judis/ 4/19 CRP (PD) No.1624 of 2018
5. Heard the learned counsel for the petitioners as well as the learned counsel appearing for the first respondent.
6. The petitioners are the defendants 2 and 4 in the suit filed by the first respondent herein for declaration, recovery of possession, mandatory injunction and permanent injunction in respect of the suit property. Admittedly, the first respondent filed suits in O.S.Nos.135 and 136 of 1999 on the file of the learned District Munsif, Thiruvarur in respect of the very same suit property for mandatory injunction and recovery of possession. Both the suits were duly contested by the petitioners and both the suits were dismissed by the judgment and decree dated 29.01.2015. While dismissing the suit, the trial Court observed that the suits for bare injunction are legally not maintainable, without a suit for declaration and injunction. There is a cloud over title of the suit property and as such, both the suits were dismissed. Further, it is observed that it is open to the plaintiff to file a fresh suit against the defendants for declaration, possession and injunction. Though the trial Court observed that the first respondent can very well file the suit for https://www.mhc.tn.gov.in/judis/ 5/19 CRP (PD) No.1624 of 2018 declaration in respect of the suit property, it does not mean that the first respondent was given liberty to file a fresh suit by saving the limitation. Therefore, in the present Civil Revision Petition, the points for consideration are that (i) whether the suit is barred by limitation (ii) whether the suit is hit by Order II Rule 2 of the Civil Procedure Code.
7. The first respondent already filed suits in O.S.Nos. 135 and 136 of 1999 on the file of the learned District Munsif, Thiruvarur, on the cause of action that when the ancestors of the first respondent purchased the suit property in the year 1928 and they were possession and enjoyment of the same and thereafter, when the first respondent was out of station, the petitioners herein encroached part of the suit property and put up a fence in the year 1994. In the year 1997, when the first respondent was out of station, the petitioners again encroached further portion of the property behind their house and put up compound wall. Therefore, the first respondent filed suits for mandatory injunction to remove the construction put up by the petitioners and recovery of possession. The present impugned suit has been filed for the very same cause of action, which reads as follows:-
“12/ ,t;tHf;fpw;fhd tHf;F K:yk; ,e;j ePjpkd;w https://www.mhc.tn.gov.in/judis/ 6/19 CRP (PD) No.1624 of 2018 vy;iyf;Fl;gl;l jpUthU:u; o/K/ ,yhf;fh. jpUthU:u; jhYf;fh. jpUthU:u; lt[dpy;. jhth gp gl;o brhj;jpid 1 Kjy; 4 vjpu;thjpfSk;. mtu;fsJ jfg;gdhuhd bt';fl;luhka;aUk; Mf;fpukpg;g[ bra;j fhykhd 1997k; tUlj;jpYk;. jhth rp gl;o brhj;jpy; 5k; vjpu;thjp Rkhu; 80 mo Mf;fpukpg;g[ bra;j fhykhd 1994k; tUlj;jpYk;. mjd; gpd;du; mjd; fPH;g[uk; Rkhu; 120 mof;F ½ mo mfyj;jpw;F br';fy; itj;J rpbkz;l; fl;il 2 mo cauj;jpw;F vGg;gpa[s;s fhykhd 1998k; tUlj;jpYk;. MJ bjhlu;ghf thjp vjpu;thjpfs; ngupy; Kiwna X/v!;/be/135-99 & 136-99 tHf;Ffs; bjhlu;eJ ; fhyk; KjYk;. nkw;go tHf;Ffspy;
jPug; g; f[ s; gfug;gl;l fhykhd 29/01/2015k; njjp KjYk; cw;gj;jp/”
8. Therefore, in respect of the cause of action arose in the year 1994 & 1997, the first respondent filed suits in the year 1999 with regards to the entire suit properties. The present suit has been filed on 04.06.2015, after a period of 17 years from the date of cause of action. The limitation for filing the suit for declaration is three years as contemplated under Article 58 of the Limitation Act. Therefore, the present suit is clearly barred by limitation.
9. Insofar as the leave is concerned as contemplated under Order II Rule 2 of the Civil Procedure Code, when the relief of declaration was very much available for the first respondent, even in the year 1999, while https://www.mhc.tn.gov.in/judis/ 7/19 CRP (PD) No.1624 of 2018 filing the earlier suits, he failed to pray for any declaration in respect of the suit properties. Only after dismissal of the earlier suits, that too on the ground that the suit was not filed for declaration and without the prayer for declaration, recovery of possession cannot be granted, the present suit has been filed. That apart, the first respondent did not get any leave from the Court below to file the present impugned suit. Therefore, the present suit is directly hit by Order II Rule 2 of the Civil Procedure Code.
10. In this regard, the learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court of India reported in 2020 (45) CTC 471 (Dahiben -vs- Arvindbhai Kalyanji Bhanusali (Gajra)(D) thr L.Rs.), it is held as follows:-
"12.10. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.
....
https://www.mhc.tn.gov.in/judis/ 8/19 CRP (PD) No.1624 of 2018
14. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under:
Description of suit Period of Time from which limitatio period begins to run n
58. To obtain any Three When the right to sue other declaration. years first accrues.
59. To cancel to set Three When the facts entitling aside an instrument years the Plaintiff to have the or decree or for the instrument or decree rescission of a cancelled or set aside Contract. or the Contract rescinded first become known to him.
https://www.mhc.tn.gov.in/judis/ 9/19 CRP (PD) No.1624 of 2018 The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
In Khatri Hotels (P) Ltd. v. Union of India [Khatri Hotels (P) Ltd. v. Union of India, (2011) 9 SCC 126 :
(2011) 4 SCC (Civ) 484] this Court held that the use of the word “first” between the words “sue” and “accrued”, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues.
That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh [State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082] held that the Court must examine the plaint and determine when https://www.mhc.tn.gov.in/judis/ 10/19 CRP (PD) No.1624 of 2018 the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted.
Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.
....
15.8. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15-12- 2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs.
The plaintiffs have failed to discharge the onus of https://www.mhc.tn.gov.in/judis/ 11/19 CRP (PD) No.1624 of 2018 proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected under Order 7 Rule 11(d) CPC."
11. The learned counsel for the petitioners further relied upon the upon the judgment of the Hon'ble Supreme Court of India reported in 2020 (10) SCC 601 (Raghwendra Sharan Singh -vs- Ram Prasanna Singh (Dead), it is held as follows:-
6.4. In T. Arivandandam [T. Arivandandam v. T.V.
Satyapal, (1977) 4 SCC 467] , while considering the very same provision i.e. Order 7 Rule 11 CPC and the decree of the trial court in considering such application, this Court in para 5 has observed and held as under: (SCC p.
470) “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, https://www.mhc.tn.gov.in/judis/ 12/19 CRP (PD) No.1624 of 2018 it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.” ....
7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the courts below have materially erred in not rejecting the https://www.mhc.tn.gov.in/judis/ 13/19 CRP (PD) No.1624 of 2018 plaint in exercise of powers under Order 7 Rule 11 CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15-12-2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed, brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein-original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as Defendant 10. It appears that the summon of the suit filed by the defendant being TS (Partition) Suit No. 203 of 2001 was served upon Defendant 10-plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the https://www.mhc.tn.gov.in/judis/ 14/19 CRP (PD) No.1624 of 2018 year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in T. Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 CPC."
12. The Hon'ble Supreme Court of India held that if the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint. https://www.mhc.tn.gov.in/judis/ 15/19 CRP (PD) No.1624 of 2018
13. Under Order II Rule 2 of the Civil Procedure Code, when the suit was filed on the basis of the certain cause of action, the plaint shall include the whole of the claim, which the plaintiff is entitled to make, in respect of the said cause of action and all reliefs arising out of the same cause of action, shall be set out in one and the same suit.
14. Admittedly, the first respondent filed the earlier suits for the very same cause of action arose in the year 1994 & 1997 and both the suits were duly contested and dismissed on merits. The present impugned suit has been filed for the very same cause of action for the very same property. The cardinal requirement for application of the provisions contained in Order II Rule 2(2) & (3) of the Civil Procedure Code, therefore, is that the cause of action in the later suit must be the same as in the first suit. Therefore, the leave of the Court is contemplated under Order II Rule 2(3) of the Civil Procedure Code in the situation where a person being entitled to more than one relief on a particular cause of action omits to sue, for all such reliefs.
15. Under these circumstances, the first respondent precluded from bringing a subsequent suit to claim relief earlier omitted except in https://www.mhc.tn.gov.in/judis/ 16/19 CRP (PD) No.1624 of 2018 situation were leave of the Court had been obtained. Therefore, the above judgments are squarely applicable to the case on hand and the plaint cannot be sustained as against the petitioners.
16. In view of the above discussion, this Civil Revision Petition is allowed and the order passed in I.A.No.712 of 2015 in O.S.No.88 of 2015 dated 28.03.2018 is hereby set aside. The plaint in O.S.No.88 of 2015 is hereby rejected. Consequently, the connected Miscellaneous Petition is closed. No costs.
17.06.2021 kv Index :Yes/No Internet : Yes/No To
1. The District Munsif, Thiruvarur.
2. The Section Officer, V.R. Section, High Court of Madras.
https://www.mhc.tn.gov.in/judis/ 17/19 CRP (PD) No.1624 of 2018 G.K.ILANTHIRAIYAN,J.
kv C.R.P (PD) No.1624 of 2018 https://www.mhc.tn.gov.in/judis/ 18/19 CRP (PD) No.1624 of 2018 17.06.2021 https://www.mhc.tn.gov.in/judis/ 19/19