Madras High Court
P.S.Dharmaraj vs S.Abishake on 7 July, 2017
Author: V.M.Velumani
Bench: V.M.Velumani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2017 CORAM: THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD)No.1668 of 2017 & CMP.No.7819 of 2017 1. P.S.Dharmaraj 2. D.Malarkodi 3. D.Dinesh Chakaravarthi 4. D.Bhuvan Chakaravarthi .. Petitioners Vs. S.Abishake .. Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to strike off the plaint in O.S.No.51 of 2017 on the file of District Court at Thiruppur filed by the respondent. For Petitioners : Mr.K.Myilsamy For Respondent : Mr.N.Manokaran ORDER
This Civil Revision Petition has been filed to to strike off the plaint in O.S.No.51 of 2017 on the file of District Court at Thiruppur filed by the respondent.
2. The petitioners are the defendants 1 to 4 and the respondent is the plaintiff in O.S.No.51 of 2017. The respondent filed the said suit for permanent injunction restraining the petitioners or anybody claiming through them in any manner interfering with the petitioners' peaceful possession and enjoyment of the suit property.
3. According to the respondent, the petitioners purchased the suit property by four sale deeds dated 31.01.2017 from one Venkatesan. The petitioners 2 to 4 settled the property on the 1st petitioner by a settlement deed dated 10.09.2007. Subsequently, the 1st petitioner sold the suit property for a sum of Rs.1,18,20,000/- to the respondent's mother, maternal grand parents of the respondent and paternal grand mother of respondent by four sale deeds on 07.10.2016. The 1st petitioner handed over all the original documents to the purchaser. From the date of purchase, respondent's mother, his maternal grand parents and paternal grand mother were in possession and enjoyment of the suit property. On 09.02.2017, they settled the property on the respondent out of love and affection. The respondent accepted the settlement and he is in possession and enjoyment of the suit property. Patta has been issued to the respondent by the Revenue Authority recognising his possession. The respondent rented out the suit property to 3rd parties and collecting rent. The respondent is paying property tax for the suit property. The petitioners on 11.03.2017 along with rowdy elements attempted to interefere with respondent's possession and enjoyment of the suit property and tried to occupy the suit property. Therefore, the respondent filed the present suit in O.S.No.51 of 2017 for the reliefs sought for.
4. The present revision petition is filed under Article 227 Constitution of India by the petitioners to strike off the plaint in O.S.No.51 of 2017. According to the petitioners, the 1st petitioner borrowed a sum of Rs.1,50,00,000/- from one R.Sakthivel, K.Kesavan, K.Ashok and N.Kurinji, who are doing money lending business. The 1st petitioner along with the 2nd petitioner have executed various documents signed in blank green paper, promissory notes and cheques. They also executed a registered general power of attorney and registered sale agreement as collateral security for outstanding loan amount. Misunderstanding arose and after exchange of several objections, the petitioners and other persons along with family members agreed to resolve the dispute amicably. A memorandum of understanding was entered into by the said persons with 1st petitioner on 15.08.2016.
5. As per the memorandum of understanding, sale agreement executed by the 1st petitioner was cancelled on 07.10.2016 and on the same day, 1st petitioner executed and registered four sale deeds with regard to the suit property in favour of Kesavan, S.Malathy, R.Ruckmani and J.Janaki. These sale deeds are executed as a collateral security and as and when the 1st petitioner repays the entire amount borrowed, the four persons agreed to re-convey the property.
6. The 1st petitioner started discharging the outstanding loan amounts and memorandum of understanding was validly acted upon. While so, on 22.10.2010 and 23.10.2010, those persons threatened the petitioners along with rowdy elements with dire consequences and tried to dispossess the petitioners from the suit property. The 1st petitioner filed O.S.No.390 of 2016 on the file of District Munsif Court, Thiruppur against the said persons for the relief of declaration to declare that the memorandum of understanding is true, valid, binding upon the petitioners and for permanent injunction. The said persons are contesting and the suit is pending.
7. After the filing of the said suit, one of the person, Malathy had lodged a complaint before the Inspector of Police, CCB, Thiruppur against the petitioners and even in the complaint, she admitted that possession and title of the documents are with the petitioners. The police registered a complaint in Crime No.1 of 2017. The petitioners have filed Crl.O.P.No.2624 of 2017 to quash the FIR before this Court and interim stay was granted on 09.02.2017.
8. When the suit in O.S.No.390 of 2016 and criminal original petition filed by the petitioners are pending, the above persons, executed settlement deed to and in favour of the respondent without having valid right, title, possession of the suit property. By producing bogus documents, the respondent obtained patta and filed the suit for permanent injunction against the petitioners. The said suit is abuse of process of court and is liable to be struck off. The respondent has filed the present suit in collusion with other persons. There is no cause of action for the respondent. By filing false undertaking affidavit along with plaint stating that no suit is pending while fully aware of the suit in O.S.No.390 of 2016 filed by the petitioners, obtained interim order.
9. The learned counsel appearing for the respondent submitted that the respondent is the absolute owner of the suit property, as per settlement deed and he is in possession of the suit property. His settlors had become absolute owner, as 1st petitioner had executed and registered four sale deeds conveying 1/4th share in each of the sale deeds to the respondent's settlor. The respondent did not produce any bogus document to obtain patta. At the time of filing of the present suit, the respondent was not aware of the suit in O.S.No.390 of 2016 filed by the 1st petitioner. The respondent did not file any false affidavit. There is no collusion, as alleged by the petitioners. The cause of action, as stated in the plaint, has arisen and the suit is maintainable and the respondent is entitled to the reliefs sought for in the suit.
10. The learned counsel appearing for the respondent relied on the following Judgments:-
(a) (2016) 4 MLJ 134 (Dr.K.Natarajan and Others V. K.Krishna Perumal) 4. The contention of the petitioners squarely fall within the ambit of Sub-Clause (b). Hence, the petitioner can very well file a petition under Order VII Rule 11 CPC before the trial Court praying for the rejection of the plaint on the ground that the suit is barred by law. Of course, there are a few judgments which say that when suits are filed in the Courts without jurisdiction and when suits are filed disregarding the bar provided under a statute, the High Court can exercise its extraordinary power under Article 226 of the Constitution of India or its power of superintendence over subordinate Courts under Article 227 of the Constitution of India to strike off the plaint. But, it is also a celebrated principle enunciated in a number of judgments, which this Court deems unnecessary to be cited herein that when an effective and efficacious alternative remedy is available, the extraordinary jurisdiction of the High Court either under Article 226 or under Article 227 of the Constitution of India shall not be exercised. The only exception provided for such rule of prudence is the infringement of a fundamental right and cases of parties approaching the Court for enforcement of their fundamental rights. In such a case, despite the availability of the alternative remedy, the Court, being the guardian of the fundamental rights conferred by the Constitution, shall protect their interest by exercising the extraordinary power.
5. This is not a case which comes under the exceptional category in which the availability of an effective and efficacious alternative remedy shall be the ground on which the Court shall decline the relief sought for under Article 227 of the Constitution of India For the above said reason, the revision petition is dismissed. However, the petitioner shall be at liberty to approach the trial Court with a petition under Order VII Rule 11 CPC. In case he fails in such an attempt, then there shall be no impediment for him to approach this Court under Article 227 of the Constitution of India. No costs. Consequently, the connected miscellaneous petition is closed. ( b) 2007 7 MLJ 13 (Ganapathy Subramanian V. S.Ramalingam and others) this Court wherein at Paragraph No.7 it is held as follows:-
7. It is not denied that the powers conferred upon the High Court under Article 227 of the Constitution of India are extraordinary and discretionary power as distinguished from ordinary statutory power. No doubt Article 227 of the Constitution conferred a right of superintendence over all Courts and Tribunals through out the territories in relation to which it exercised jurisdiction, but no corresponding right is conferred upon the litigant to invoke the jurisdiction as a matter of right. In fact, the power under Article 227 of the Constitution of India casts a duty upon the High Court to keep the inferior Courts and tribunals within the limits of its authority and that they do not cross the limit ensuring the performance of their duties in accordance with law conferring power within the ambit of the enactment treating such Court and Tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.
(c) 2012 (1) MWN (Civil) 701 (K.Ponnamal and others V. V.Thayanban and others) wherein this Court at Paragraph Nos.21 and 22 it is held as follows:-
21. Apart from that the petitioners herein have other statutory alternative remedies available under the Code of Civil Procedure. The petitioners herein, who are the defendants in the pending suit, may also move the Court below by filing an application for rejection of the plaint under Order 7, Rule 11 of the C.P.C., which reads as under:-
11. Rejection of plaint The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a case of action.
(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is property 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 supply 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
22. It is, therefore, manifest that the respondents/ petitioners herein instead of availing the remedies provided under the Code of Civil Procedure have erroneously invoked the jurisdiction of this Court under Article 227 of the Constitution of India.
(d) (2014) 6 SCC 508 (Jacky V. Tiny Alias Antony and others) wherein the Hon'ble Apex Court at Paragraph Nos.2 and 15 it is held as follows:-
2. The only question which is required to be determined in this case is: whether the High Court while exercising its power under Article 226 and 227 of the Constitution of India is competent to set aside the plaint?
15. A petition under Article 226 of Article 227 of the Constitution of India can neither be entertained to decide the landlord-tenant dispute nor is it maintainable against a private individual to determine an intense dispute including the question whether one party is harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsif Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of the Constitution of India can be exercised to question a plaint.
11. Heard the learned counsel for the petitioners, learned counsel for the respondent and perused the materials available on record.
12. The petitioners have come out with the present civil revision petition to strike off the plaint in O.S.No.51 of 2017. According to the petitioners, the respondent in collusion with his mother, maternal grand parents, paternal grand mother filed the above suit. Those persons do not have any title or interest in the suit property and they are not in possession of the suit property. The settlement deeds executed by them in favour of the respondent is not valid.
13. All the above grounds raised by the petitioners are not valid grounds for striking off the plaint. Admittedly, the 1st petitioner has filed O.S.No.390 of 2016 for declaration that memorandum of understanding dated 15.08.2016 is legal, valid and acted upon. The petitioners have to prove the averments made in the plaint in O.S.No.390 of 2016 to obtain a decree as prayed for in the said suit. Similarly, the petitioners have to prove that the four sale deeds executed by the 1st petitioner is only for collateral purpose and the said documents were executed on condition that the said four persons would re-convey the suit property as and when the 1st petitioner discharge the loan amount borrowed by him. Unless the 1st petitioner proves these contentions, the plaint in O.S.No.51 of 2017 cannot be struck off and same cannot be held as abuse of process of Court.
14. The four sale deeds executed by 1st petitioner are not declared as null and void. It cannot be said that the said persons did not acquire valid title, interest in the suit property. Till the four sale deeds are declared as null and void the settlement deeds in favour of the respondent cannot be said to be invalid.
15. The respondent has filed a suit for permanent injunction on the ground that the petitioners are trying to interefere with his peaceful possession and enjoyment of suit property. On the other hand, the petitioners are claiming that they are in possession and enjoyment of the suit property. The disputed question of fact has to be decided only after the parties let in evidence and on conclusion of trial. The power under Article 227 Constitution of India is extraordinary. The said power has to be used sparingly, cautiously and this Court can struck off the plaint, only when on the face of it the proceedings are abuse of process of Court or discloses no cause of action. The Hon'ble Apex Court in the Judgement reported in 1998 (3) SCC 573 [K.K.Modi Vs. K.N.Modi and others], wherein at Paragraph No. 44, it has been held as follows:-
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 courts 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.
16. The power conferred on the Courts under Article 227 of the Constitution of India is an extraordinary power. As per the said power, the Court has supervisory control over Subordinate Courts. The Court has power to stop the proceedings and strike out the plaint, if the said proceeding is abuse of process of Court; the plaint does not reveal cause of action; the Court has exceeded its jurisdiction or failed to exercise its jurisdiction or from the averments in the plaint, it is seen that there is no possibility of plaintiff succeeding in the suit or the suit is abuse of process of Court. Article 227 of the Constitution of India can be invoked also to prevent miscarriage of justice and grave injustice and the relief sought for is contrary to justice and public policy. The Court can exercise this power even if the party has not exhausted the alternative remedy. The vexatious, obstructive or dilatory action can be struck off at the threshold itself
17. It is pertinent to note that the Court must exercise this power sparingly and only in extraordinary cases. The plaint can be struck off only when the Court is satisfied that it is a fit case to exercise the power under Article 227 of the Constitution of India. This Power is discretionary power and the Court must exercise the power judicially. The Court can consider only the averments in the plaint to decide whether the plaint is liable to be struck off or not. The written statement or any document relied on by the defendant cannot be considered.
V.M.VELUMANI, J.
ssd
18. In the present case, the respondent has stated that as per settlement deed, he became owner and he is in possession of the suit property and the petitioners are interfering with his possession. Without full fledged trial, these averments cannot be rejected and the plaint cannot be struck off.
19. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
07.07.2017 Speaking Order/Non-speaking Order Index :Yes/No ssd To The District Court Thiruppur C.R.P.(PD)No.1668 of 2017 & CMP.No.7819 of 2017