Madras High Court
N.Govindarajan vs S.Srinivasan
Author: M.Govindaraj
Bench: M. Govindaraj
In the High Court of Judicature at Madras ORDERS RESERVED ON: 27.07.2017 ORDERS PRONOUNCED ON: 28.04.2018 C O R A M THE HONOURABLE MR.JUSTICE M. GOVINDARAJ C.R.P (PD) NO.1756 OF 2017 AND CMP NO.8289 OF 2017 N.Govindarajan ... Petitioner Vs. 1.S.Srinivasan 2.S.Logeswari 3.Leelavathy 4.S.Ramadevi 5.R.Vijalakshmi 6.S.Vasanthi 7.V.Maheswari ... Respondents PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 24.02.2017 made in I.A.No.12008 of 2016 in O.S.No.3873 of 2016 on the file of the IV Additional City Civil Court, Chennai. For Petitioner : Mr.D.Srinivasan for M/s.S.Karthik Raja For Respondents 1&2: Mr.S.B.Murugesan For Respondent 3 : Mr.N.Kannan O R D E R
This Civil Revision Petition is directed against the dismissal of the interlocutory application filed for rejection of the plaint as one barred by limitation and for striking off the plaint for abuse of process of law.
2. "A person owes a duty to the Court to bring out all the facts and refrain from concealing / suppressing material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to deny relief to such person. Or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final."
- Hon'ble Mr.Justice V.R.Krishna Iyer
3. It is a classic case of abuse of process of law, not only for suppression and misrepresentation of material facts, but also an attempt to pollute the pure stream of justice, by producing bogus documents, which were found wanting in the previous suit pending between the same parties and re-litigating the issue by creating an illusory cause of action for an enlarged relief.
4. The second defendant is the revision petitioner and the first and second respondents are the plaintiffs. The second respondent along with her Late father, filed a suit for declaration of the sale deed dated 05.12.1975, as sham, nominal and thereby not binding on them and to cancel the same and for a permanent injunction restraining the defendants from interfering with their peaceful possession.
5. For the sake of convenience, the parties are called as per the litigative status in the suit.
6. According to the plaintiffs, the suit property was purchased by grandfather one Subramania Mudaliar, by a registered sale deed bearing No.680 of 1949 dated 27.10.1949, registered at the office of the Sub Registrar, T.Nagar, Chennai. The said Subramania Mudaliar executed a settlement deed, vide Document No.212 of 1951, dated 15.03.1951 in favour of his second wife Kaveri Ammal, for life and after her lifetime, to his son Srinivasan and other male descendants to be born to them with certain conditions. That the said Srinivasan shall perform marriages of his sisters from the income derived from the suit property and shall not alienate the property. In the event of death of Srinivasan, the property shall devolve on his male children and other male descendants to be born to him and Kaveri Ammal. If no male descendants to the male children, the property would go to the male children born to the female descendants of Subramania Mudaliar and Kaveri Ammal.
7. The revision petitioner's grandfather and his father Krishnamoorthy were inducted as tenants in the suit property. Due to the close friendship between the first plaintiff Srinivasan and Krishnamoorthy, Krishnamoorthy was managing the affairs of the building, in collecting rents, etc. During 2003, it is alleged that the revision petitioner created problems and intruded into the other portions of the property claiming title over the same that he has acquired the property.
8. Since the revision petitioner created problems during the year 2003, the second respondent / second plaintiff filed a suit for permanent injunction in O.S.No.4354 of 2005, before the 13th Assistant Judge, City Civil Court and the same is pending. In the said suit, the revision petitioner stated in his written statement that by virtue of a registered document bearing No.1493 of 1975 dated 05.12.1975, his grandfather and father purchased the property from one Srinivasan and his brothers for valid consideration and pursuant to same, mutation of revenue records had taken place.
9. Thereafter, the plaintiffs / respondents 1 and 2, filed the present suit in C.S.No.399 of 2008 before this Court, which was transferred to the City Civil Court and renumbered as O.S.No.3873 of 2016 for the above said relief.
10. The revision petitioner filed the above application to strike off the plaint as abuse of process of law and one barred by limitation. The Trial Court after elaborately discussing various contentions, came to the conclusion that the plaintiffs got knowledge of the sale deed only from the written statement filed by the defendant in O.S.No.4354 of 2005 dated 19.09.2005. As per Section 56 of the Limitation Act, suit for declaration shall be filed within three years, when the registration become known to the plaintiff. The plaintiffs got knowledge of the sale deed only on 19.09.2005 and thereafter, filed the suit on 01.04.2008, which is well within the limitation period and therefore, it cannot be rejected under Order 7 Rule 11(d) of the Civil Procedure Code. Further, it was held that the point of limitation is a mixed question of fact and law and it can be decided only at the time of trial and the suit cannot be thrown out at the threshold itself. The other contention that the suit filed in abuse of process of law was also held to be unacceptable, as it cannot be a ground for rejection of plaint. Therefore, the Trial Court has dismissed the interlocutory application.
11. Heard the submissions made on either side and perused the materials available on record.
12. From the pleadings and the documents made in plaint in O.S.No.3873 of 2016, it could be seen that the suit was originally filed for declaration, that the sale deed dated 05.12.1975, registered as document No.1493 of 1975 at Sub Registrar Office, T.Nagar, Chennai, is sham, nominal and not binding on the plaintiffs and consequently, to cancel the sale deed and for permanent injunction from interfering with the peaceful possession and enjoyment of the property.
13. There are three issues projected before this Court, which are as follows:-
(i) Abuse of process of law
(ii) Limitation
(iii) Illusory cause of action
14. In so far as abuse of process of law is concerned, the Hon'ble Supreme Court has laid down the duty of the trial Court in considering the vexatious applications in its decision reported in 2012 (8) SCC 706 (Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust) in paragraph 12 as under :
"12. It is also useful to refer the judgment in T. Arivandandam vs. T.V. Satyapal & Anr., (1977) 4 SCC 467, wherein while considering the very same provision, i.e. Order VII Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation:
5. .The learned Munsif must remember that if on a meaningful for 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 VII, Rule 11 C.P.C. 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 X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) and must be triggered against them.. It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order VII Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order X of the Code."
15. In this context, a reading of the settlement deed dated 15.03.1951 will serve the useful purpose. The property was settled in favour of the second wife Kaveri Ammal by Subramania Mudaliar for life and thereafter, to the male descendants. In the meanwhile, a condition was laid that the first son Srinivasan shall perform the marriages of his sisters from the income derived from the property and that he shall not alienate the property. The condition means that the property shall not be alienated till the marriage is performed and there is no absolute bar for selling the property.
16. In para 8 of the plaint, it is averred as under:
"It also came to be known that the other executants of the sale deed had earlier instituted a suit for partition in O.S.No.1643 of 1973 and withdrew the same thereafter".
17. The decree passed in O.S.No.1643 of 1973 has been marked as plaint document No.4 clearly shows that V.S.Chandrasekar, V.S.Jayavelu and V.S.Somasundaram are other legal representatives born after V.S.Srinivasan, to Subramania Mudaliar and Kaveri Ammal. Further, all joined together and executed the sale deed dated 05.12.1975, pursuant to which, the revenue records, patta and tax assessment were transferred in the name of the grandfather and father of the second defendant. Even though specific averments were made in para 8 of the plaint, the plaintiffs would not deny the execution of the same. But, the plaint averments do not divulge the factum relating to the other legal heirs of Subramania Mudaliar and Kaveri Ammal. On the other hand, suppressing the factum of determination of title in favour of the legal heirs of Subramania Mudaliar and the subsequent sale, the plaintiffs proceeded to file suit on the averment that the plaintiffs are the only legal heirs. Such a subsequent suit after suffering a decree in O.S.No.1643 of 1973 will amount to relitigation.
18. Para 15 of the plaint would aver that the property is under plaintiffs' possession, based on certain documents viz., Nativity Certificate, Ration Card, EPIC Card. Curiously, Hon'ble Mr.Justice K.Chandru, of this Court, while disposing of the applications for interim injunction in O.A.Nos.439 and 440 of 2008 in C.S.No.399 of 2008, has categorically found that those documents are proved to be bogus documents and that the plaintiffs are not entitled to any injunction. Those documents were apparently fabricated to set up a case of physical possession, without their being actual possession. In that event, the cause of action claimed through those forged documents should also be false and illusory. In that event, the cause of action pleaded in the plaint that the second defendant interfered with the peaceful possession of the plaintiffs was not subsisting on the date of filing of the suit.
19. Further, the Trial Court while answering these issues discussed that the legal heirs of other male descendants of Subramaniya Mudaliar and Kaveri Ammal of having executed a power of attorney on the same day when the plaintiffs executed another power of attorney for the same property and exchange of cases between the parties. The Trial Court having adverted to the above facts conveniently ignored the suppression as to legal heirs not impleaded as parties. If it is a suit for injunction simpliciter, the other legal heirs are not necessary parties. But in a suit for declaration, a duty is cast upon the plaintiffs to bring out all the facts and refrain from concealing / suppressing material facts within their knowledge. The concealment of material facts is nothing short of polluting the pure stream of justice. When a valid document in the form of a decree is very much available as document no.4, filed along with the plaint, the present suit is a clear abuse of process of law, for suppression of facts and misleading statements. Further, the finding of Hon'ble Mr.Justice K.Chandru, with regard to the other documents filed along with the plaint to show possession that they are bogus documents, will also establish the fact that it is vexatious suit and abuse of process of law. Thirdly, the finding that the plaintiffs are not in possession of the property would clearly show that there is no subsisting cause of action for filing the suit for injunction for the second time by forging the documents which were found wanting in the first suit, will certainly amount to abuse of process of law.
20. This Court in RM.SUBBIAH VS. S.RAMAKRISHNAN [2012 (1) LW 437] has observed as under:
"15. Normally a plaint cannot be rejected exercising power under Article 227 of the Constitution. However, if a party comes to the Court with unclean hands and re-agitate the matter again and again, the Courts are not powerless to exercise its discretion in putting a full stop to the same. The suits that have been filed by the first respondent is a glaring example where the Courts have to exercise its power to stop the first respondent from proceeding with the matter endlessly. There is no rhyme or reason to allow the first respondent to proceed with the suit in spite of the fact that in various proceedings initiated at his instance he has lost in all the Forums."
21. Thus, a person, who comes to the Court suppressing the material facts and misleads the Court by way of filing bogus documents with an ulterior motive to reagitate the matter, cannot be permitted to continue to have a free. The Courts shall exercise the power of discretion to put a fullstop to the same. In the instant case, the admitted plaint document clearly shows determination of title in respect of the suit property. Creating an illusory cause of action on the basis of bogus documents will amount to abuse of process of law. Therefore, the plaint is liable to be struck off.
22. In so far as limitation is concerned, the sale deed under challenge in the present suit was of the year 1975, but, the suit was filed only in the year 2008. As per Section 56 of the Limitation Act 1963, to declare the forgery of an instrument issued or rejected, the period of limitation is three years. A suit filed after three years is hit by limitation, as held by this Court in K.CHANDRAN AND 3 OTHERS VS. V.GEETHALAKSHMI [2012 (3) MWN CIVIL 832] as follows :
"25. Further I find that the main allegation in the Plaint is that the Applicants have obtained Sale Deeds dated 6.5.1985 by playing fraud on the legal heirs of Balakrishna Naicker, which allegation is similar to that of the allegation made in C.S.No.123/2005 filed by the legal heirs of Balakrishna Naicker as against the Applicants. As per Section 56 of the Limitation Act, to declare the forgery of an instrument issued or registered, the period of limitation is three years. But, this Suit has been filed much after from the date of registration of the Sale Deeds in favour of Applicants 1 & 2 and one Varadhan. Hence, on that ground also, the suit is hit by limitation................ "
Even assuming that the plaintiff was not aware of such registration, it should have been filed from the date of knowledge or from the date the rival claim was made.
23. Admittedly, the plaintiff would contend that she filed a suit for permanent injunction, claiming possession in her hands. Thereafter, she filed another suit for declaration, on the grounds that the registration of sale deed was made known to her, only by way of written statement dated 19.09.2005.
24. Curiously, para 7 of the plaint reads as under:
"7. The 1st plaintiff states that one N.S.Naidu was occupying a portion namely a single room in the upstairs of the suit property as a tenant and thereafter his son Krishnamurthy was in occupation of the said portion of the property. The 1st plaintiff states that during 2003, Mr.Govindarajan, son of Krishnamurthy, began to interfere with the plaintiffs possession and enjoyment of the property by claiming title and saying that he has acquired the property."
25. A reading of para 7 of the plaint filed in the above suit clearly reveals that the second defendant claims title saying that he had acquired the property in the year 2003 itself. If that be so, the plaint averment by itself indicates that the plaintiffs were informed of the fact as early as in the year 2003. In such an event, the suit should have been filed within three years i.e., before 2006, as the plaintiffs are very much aware of the dispute of title by the defendants therein.
26. In VASUMATHI H. SHAH VS. PUSHPA RAJU [2015 (3) CTC 54], this Court has observed as under:
"38. A reading of the above paragraphs would show that when it is apparent from the averments made in the plaint and the materials that the suit is filed beyond the limitation period, then the same is liable to be rejected. As per the provisions under Order VII Rule 11(d), where the suit appears from the statement in the plaint to be barred by any law, then the plaint is liable to be rejected. The wordings 'any law' envisaged in Order VII Rule 11(d) includes law of limitation also. So far as the present case is concerned, as observed, the present suit has been filed after 11 years from the date on which she got knowledge about the purchase of 'C' schedule property by D3 from D2 as power agent of the plaintiff and seven years from the date on which D4 purchased 'B' schedule property from D1. Therefore, I am of the view that the suit is hopelessly barred by limitation. ...''
27. Since it is categorically held that any law envisaged in Order VII Rule 11 (d) of C.P.C. includes law of limitation also, the plaint is liable to be rejected. The finding of the trial Court that the plaintiffs got knowledge of the sale only in the year 2005 cannot be accepted, as the plaint averment already shows that they had knowledge in the year 2003 itself. Therefore, the present suit has been filed on an illusory cause of action, based on false averments and bogus documents.
28. Further, the cause of action, which had arisen even before 2003, as admitted in para 7 of the plaint, would go to show that it is hopelessly barred by limitation.
29. In so far as the rejection of plaint under Order 7 Rule 11(d) is concerned, this Court in N.A.CHINNASAMY AND ANOTHER VS. S.VELLINGIRINATHAN [2013 (6) CTC 809] has held as under:
" 46. It is a well settled proposition of law that oral allegations could not impeach the admitted documentary evidence and that the admission made by the respondent / plaintiff himself would show that the suit filed by him is a clear abuse of process of law and the Court.
....
49. As per Order VII Rule 11 CPC, when there is no subsisting legal cause of action for seeking the relief sought for in the plaint or when the relief sought for is statutorily barred or if the deficit court fee is not paid on the direction, as date fixed by the Court below, plaint could be rejected. ......"
30. From the arguments of both parties and from the judgment of the Trial Court, it is seen that there are lot of litigations between the parties before this Court in writ and criminal jurisdiction.
31. In TAMIL NADU HANDLOOM WEAVERS' CO-OPERATIVE SOCIETY VS. S.R.EJAZ, REP. BY HIS POWER AGENT [2009 (5) CTC 710] this Court has observed that :
"57. The present suit is clearly vexatious and the attempt is nothing but re-litigation. The respondent has scant respect towards the Court and the rule of law. His attempt is to continue in possession at any cost. The learned Trial Judge should have rejected the plaint at the earliest opportunity and at least after filing counter by the revision petitioner, opposing the plea raised in the suit as well as in the interlocutory application.
58. The facts projected in the case clearly show that the attempt of the respondent was only to flout the direction issued by the Supreme Court and to retain his possession under some pretext or the other. Court cannot be a tool in the hands of such vexatious litigants. It will be a mockery of justice to permit the respondent to enjoy the luxury of re-litigation.
59. It is the solemn duty of this Court to see that nothing would come in the way of frustrating the recipient of justice from executing the decree. Similarly, the Court is expected to filter out and throw all unwanted and vexatious litigations which would be an obstruction to the decree holders in their journey to get justice."
32. The execution of documents is admitted and the certified copy of the registered sale deed dated 05.12.1975 has been filed as plaint document. The mutation of revenue records is also admitted. The possession pleaded in the plaint is disproved, as per the finding of this Court that the documents filed along with the plaint are forged documents.
33. In such circumstances, the suit should have been filed within three years i.e., to say before 05.12.1978. As per Section 56 of the Limitation Act, the limitation period is three years. Admittedly, the issue was raised as early as 2003 by the defendants. But there is a specific pleading to that effect, that the suit should have been filed before 2006 and not as found by the Trial Court from the date of written statement. The plaintiffs cannot plead ignorance of the revenue records, which were transferred at their instance, at a later point of time. Had they continued in possession of the property, they should have paid property tax, electricity consumption charges, patta, water tax, ration card, etc. But the production of bogus documents by itself will prove that the plaintiffs have deliberately filed the suit taking advantage of the written statement filed by the defendants. Therefore, it is clear that the suit is hopelessly barred by limitation and liable to be rejected under Order 7 Rule 11(d) of Civil Procedure Code.
34. In so far as the issue of abuse of process of law is concerned, though the plaintiffs have pleaded and filed a decree copy in O.S.No.1643 of 1973 dated 03.12.1975, they have not filed the suit along with other legal representatives of Subramania Mudaliar and Kaveri Ammal. The above fact will only disclose the filing of the suit after determination of title in favour of the legal representatives of Subramania Mudaliar, suppressing the sale made by them. Secondly, in spite of specific averments, the plaintiffs would plead that the other legal representatives have no right to alienate the property.
35. From the above averment, it can be inferred that the plaintiffs are very much informed of the decree. But there is no explanation or divulgence of the fact relating to the factum of other legal heirs of Subramaniya Mudaliar and Kaveri Ammal. But the plaintiff deliberately mislead the Court by pleading that there are no other legal representatives, despite the proof through a decree of property which has attained finality and bold enough to produce a legal heir certificate showing one Srinivasan and Logeswari are the sole legal representatives.
36. The further statement made in para 8 goes to show that there was a partition suit in O.S.No.1643 of 1973, which is filed as document no.4 along with plaint clearly shows that The averments made in paras 11 to 13 deals with regard to the probate proceedings, which had taken place in the year 1986, and testamentary original suit between the defendants in the suit till 2003, which were not pleaded in the written statement filed by the second defendant in the previous suit shows that the plaintiffs had knowledge of the title of the defendants.
37. Further, the Trial Court while answering these issues discussed that the legal heirs of other male descendants of Subramaniya Mudaliar and Kaveri Ammal of having executed a power of attorney on the same day when the plaintiffs executed another power of attorney for the same property and exchange of cases between the parties. The Trial Court having adverted to the above facts conveniently ignored the suppression as to legal heirs not impleaded as parties. If it is a suit for injunction9 simpliciter, the other legal heirs are not necessary parties. But in a suit for declaration, a duty is cast upon the plaintiffs to bring out all the facts and refrain from concealing / suppressing material facts within their knowledge. The concealment of material facts is nothing short of polluting the pure stream of justice. When a valid document in the form of a decree is very much available as document no.4, filed along with the plaint, the suit is a clear abuse of process of law, for suppression of facts and misleading statements. Further, the finding of the Court with regard to the other documents filed along with the plaint to show possession that they are bogus documents, will also amount to abuse of process of law. Thirdly, the binding that the plaintiffs are not in possession of the property would clearly show that there is no subsisting cause of action for filing the suit for injunction for the second time by forging the documents which were found wanting in the first suit, will certainly amount to abuse of process of law.
38. As held by this Court in RM.SUBBIAH's case (cited supra) this Court has power to stop the vexatious litigations. The finding of the Trial Court that it can be decided as a preliminary issue, is not correct and the parties shall not be forced to undergo the agony of litigation on vexatious suit filed by them. The plaintiffs have pleaded that there was a probate with respect to the property by this Court. The probate is a document in declaring title to the parties concerned. Yet another probate proceedings ended in testamentary original suit, which was also pleaded by the plaintiffs, goes to show that the declaration will bind them also, until it is set aside. Even though the plaintiffs have pleaded the details, there is nothing in the plaint about the steps taken by them to set aside the order. As long as the order passed by this Court, with regard to the same property and the further execution pursuant to the same remains in force, the plaintiffs cannot maintain the suit on the pleading made by them in the plaint. Therefore also, the suit is liable to be rejected, as abuse of process of law, vexatious and hopelessly barred by limitation.
39. In the result, the order dated 24.02.2017 passed by the Trial Court in I.A.No.12008 of 2016 in O.S.No.3873 of 2016 is set aside and the Civil Revision Petition is allowed. No costs. Consequently, connected civil miscellaneous petition is closed.
28.04.2018 Index : Yes/No Internet : Yes/No TK To The IV Additional Judge City Civil Court Chennai.
M.GOVINDARAJ, J.
TK PRE-DELIVERY ORDER MADE IN C.R.P (PD) NO.1756 OF 2017 28.04.2018