Madras High Court
Mr.P.Rajkumar vs Mrs.Mary Saroja on 15 April, 2013
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2013
CORAM:
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P(PD)No.1658 of 2012
and
M.P.Nos.1 to 5 of 2012
1.Mr.P.Rajkumar
2.Mrs.Jayanthi
3.Mr.T.S.T.Kaznavi
4.T.K.Mohammed Shagee
5.S.H.Yasmin Begum
6.T.Susindran
7.D.Saravanan : Petitioners/D1, 2, 4 to 8
Vs.
1.Mrs.Mary Saroja
rep. by her Power Agent
Mr.P.Krishnan :1st Respondent/Plaintiff
2.Maria Pushpam
3.Muthukrishnan
[No relief is sought against
the respondents 2 and 3 and
hence they are given up] :2nd & 3rd Respondents/
Defendants 3 and 9
PRAYER: This Civil Revision Petition filed under Article 227 of the Constitution of India, to strike down the plaint filed in O.S.No.1968 of 2012 on the file of the court of the XIV Assistant City Civil Judge at Chennai.
For Petitioners : Mr.T.R.Rajagopal
Senior counsel
for Mr.M.Balachandar
For 1st Respondent : Mr.M.Venkateshesan
for Mr.D.Kanaga Sunderavel
O R D E R
This revision is filed to strike down the plaint in O.S.No.1968 of 2012 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai.
2.The first respondent herein filed a suit in O.S.No.1968 of 2012 against the revision petitioners and the respondents 2 and 3 herein for the relief of declaration that the Deed of Settlement under Document No.797/2004, Sale Deed under Document No.2940 of 2009, Sale Deed under Document No.2941 of 2009, Sale Deed under Document No.2942 of 2009 executed by the defendants 1 and 2 through their power agent the 4th defendant on the office of the Joint Sub Registrar-I, Saidapet, Chennai-6, to be declared as null and void in so far as the schedule mentioned property and for permanent injunction.
3.It is submitted by Mr.T.R.Rajagopal, the learned Senior counsel representing Mr.M.Balachandar that the plaint filed by the first respondent is a clear abuse of process of court and the first respondent has no title or right over the suit property and he has also admitted in the earlier writ proceedings that he has no title and the suit filed without paying proper court fee is liable to be struck down.
4.According to the learned Senior counsel for the revision petitioners, the documents, which are sought to be declared as null and void are Settlement Deeds and Sale Deeds and the value of the property in those documents exceed the pecuniary jurisdiction of this court and for getting declaration to set aside the documents or to get declaration that the documents are null and void, court fee has to be paid under section 27(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1995 and if so valued, the court has no pecuniary jurisdiction and the first respondent/plaintiff valued the suit under section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1995 and hence, the valuation of the suit and the payment of court fee are not proper and therefore, the plaint is liable to be struck down.
5.The learned Senior counsel further submitted that in W.P.No.15029 of 2011, the first respondent has admitted that he has no right over the suit property and that was also recorded in that order and O.S.No.8508 of 2010 was filed by the husband of the first respondent and on the date of filing of the said suit by the husband of the first respondent, M.E.Paul Raj was dead and by committing forgery and fraud on the court, the suit was filed and later, it was attempted to be withdrawn by the first respondent and that was not allowed and the present suit was also barred under Order 2 Rule 2 CPC, having regard to the earlier suit O.S.No.8508 of 2011 filed in the name of the deceased M.E.Paul Raj.
6.The learned Senior counsel also submitted in detail how the first respondent has no right over the property and also explained in detail the title of the revision petitioners and submitted that the suit is a clear abuse of process of court and it is liable to be struck down. In support of his contention, he relied upon the following judgments.
01.2012(4)CTC 308, in the case of the Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. Ponniamman Educational Trust, represented by its Chairperson/Manging Trustee 02.1989(1)LW 403, in the case of Kottaiyur Chidambaram Chettiar Girls Higher Secondary School rep. by its Secretary vs. F.X.Philomina Kalaichellvi and one another.
03.1991-2-LW 688, in the case of Rathinam and others vs. Pavathal.
04.1994-1-L.W.21, in the case of S.P.Chengalvaraya Naidu (dead) by Lrs vs. Jagannath (dead) by Lrs & others.
05.AIR 1977 SC 2421, in the case of T.Arivandan dam vs. T.V.Satyapal & another.
06.(1997)2 SCC 552, in the case of Gorie Gouri Naidu (Minor) and another vs. Thandrothu Bodemma and others.
07.1997-2-L.W 761, in the case of Ranipet Municipality rep. by its Commissioner & Special Officer, Ranipet vs. M.Shamsheerkhan 08.2007(4) CTC 70, in the case of Chinna Nachiappan and another vs. PL.Lakshmanan.
09.2009 CIJ 342 Mad. in the case of A.Janaki vs. J.John Kennedy.
10.2010-5-L.W.748 in the case of M.V.Jayavelu vs. E.Umapathy; and 11.2012-5-L.W.806, in the case of S.R. Trust, Meenakshi Mission Hospital and Research Centre, Lake Area, Melur Road, Madurai & others vs. S.Ramesh, Trust, S.R.Trust.
7.On the other hand, Mr.M.V.Venkateshesan, the learned counsel appearing for the first respondent submitted that the suit was properly valued and admittedly the plaintiff was not a party to the documents, which were sought to be declared as null and void and therefore, as per the judgment of this court reported in (2006)4 MLJ 924, in the case of Siddha Construction (P) Ltd., rep. by its Power Agent Anjay Sharma, Chennai vs. M.Shanmugam and others, there is no need to value the suit under section 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1995, when the plaintiffs were not parties to the documents and the payment of court fee under section 25(d) was proper.
8.The learned counsel for the first respondent also relied upon the judgment reported in 2007-3-L.W.515, in the case of Ganapathy Subramanian vs. S.Ramalingam and 23 others and submitted that a plaint cannot be rejected on the ground of suppression of material facts and that can be considered only during trial and in the plaint, the title of the plaintiff has been traced and therefore, having regard to the allegations made in the plaint, the first respondent/plaintiff has made out a prima facie case and therefore, the plaint cannot be struck down at this stage.
9.To appreciate the contention of the learned Senior counsel appearing for the revision petitioners, we will have to see the contents of the plaint.
10.It is the case of the plaintiff/first respondent that one Nandagopal Chetty was the owner of the property and he had two sons, by name Kuppusamy and Kumar and Kumar died and Kuppusamy became the absolute owner and after the death of Kuppusamy, his son Ramasamy became the absolute owner and after the death of Ramasamy, his son Ragavan sold the property by an unregistered sale deed, dated 12.03.1958 to Mr.Manuvel Pillai and also handed over possession and M.E.Paul Raj was the son of Manuvel Pillai and after the death of Manuvel Pillai and his wife Kirubai Ammal, M.E.Paul Raj became the absolute owner of the property and during the life time of his mother Kirubai Ammal, he mortgaged the property by depositing the title deed with one Selvaraj and the mortgage was redeemed on 27.10.2004 and he also executed a registered mortgage deed in favour of Pushpammal as per Document No.691 of 2005 and M.E.Paul Raj was in possession and enjoyment of the property, till his death on 08.07.2010 and after his death, the first respondent has become the absolute owner of the property as his widow and she is in possession of the property.
11.It is further alleged in the plaint that pursuant to a decree, the learned IX Assistant City Civil Judge, Chennai executed a sale deed in favour of the defendants 1 and 2 on behalf of Mr.Kerala Varma, Mr.Raman and Achuthan in respect of 37 cents, out of 1.32 acres in Plot No.35, old survey No.210/2, New Survey No.210/2A1A1A under Document No.4567 of 2000 and on the basis of the said sale deed, the defendants 1 and 2 had fraudulently obtained patta in T.S.No.214/2 and thereafter, the defendants 1 and 2 sold the property of an extent of 5 cents through the 4th defendant by misusing the pattas in favour of the 3rd defendant, who is none other than the mother of the first defendant and also executed a sale deed under Document No.2940 of 2009 in favour of the 5th defendant through his power agent the 4th defendant and the 5th defendant is also the son of the 4th defendant in respect of an extent of 8277 sq.ft. and also executed another sale deed under Document No.2941/2009 in favour of the 7th defendant in respect of 2184 sq.ft. of land, out of 37 cents and also executed another sale deed under Document No.2942 of 2009 in favour of the 6th defendant in respect of an extent of 3271 sq.ft. Therefore, the suit was filed to declare those documents as null and void. Admittedly, the plaintiff was not a party to those documents and therefore, there is no need to pray for setting aside those documents as per the judgment reported in 2006(4)MLJ 924, in the case of Siddha Construction (P) Ltd., rep. by its Power Agent Anjay Sharma, Chennai vs. M.Shanmugam and others and the payment of court fee under section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is proper and as per section 25(d) of the Court Fees Act, the plaintiff can value the suit, which shall not be less than Rs.1000/- and therefore, the first contention of the learned Senior counsel that the suit was not properly valued and proper court fee was not paid cannot be accepted at this stage.
12.Further, a plaint cannot be rejected on that ground and if the court fee has not been properly paid by properly valuing the suit property, necessary application has to be filed before the court below and if the court gives a finding that the suit property was not properly valued and proper court fee was not paid, direction has to be given to the plaintiff to pay the deficit court fee and if the deficit court fee was not paid within the time fixed by the court, thereafter the plaint can be rejected. This has been made clear by the provisions of Order 7 Rule 11 CPC.
13.The next ground submitted by the learned Senior counsel appearing for the revision petitioners is that the plaintiff has no title over the suit property and the property belonged to Kirubai Ammal and as per the order of the court, the properties were sold to the defendants 1 and 2 and therefore, they became the absolute owners of the property and they sold the property to various persons and therefore, the suit is a clear abuse of process of court and the titles of the revision petitioners were also considered in the writ proceedings.
14.According to me, whether the plaintiff has got title over the property or the defendants have got tittle over the property can be considered only during trial and even assuming that the plaintiff has no title over the property, the same has to be established by the respondent before the trial court and along with the plaint, the plaintiff has filed the mortgage deed dated 27.10.2004 executed by her husband in favour of one Selvaraj and the plaintiff has traced her tittle to the suit property in the plaint and whether the title traced by the plaintiff is legally acceptable one or not can be considered only during trial. Therefore, on that ground, the plaint cannot be rejected.
15.Further, the plaint cannot be rejected on the ground that the present suit is barred under Order 2 Rule 2 CPC, having regard to the earlier suit filed in O.S.No.8508 of 2010.
16.It is the contention of the learned Senior counsel appearing for the revision petitioners that admittedly, M.E.Paul Raj died on 08.07.2010 and O.S.No.8508 of 2010 was filed on 16.08.2010 and therefore, the plaintiff herein has played fraud on the court by filing the suit on behalf of dead person. According to me, the same cannot be considered at this stage and it is seen from the typed set of papers filed by the revision petitioners that the first respondent/plaintiff filed an application to withdraw the suit O.S.No.8508 of 2010 and the same was dismissed on the ground that she was not made a party to the suit by adding her as the legal heir of the deceased M.E.Paul Raj.
17.Further, interim injunctions were granted in I.A.Nos.5254 to 5256 of 2012 in O.S.No.1968 of 2012 and the injunctions granted also were vacated in CMA Nos.58 to 60 of 2012 by the 15th Additional Civil Judge, City Civil Court, Chennai. Therefore, in my opinion, the parties can agitate their rights only during trial and it is not a case, where this court can intervene and strike down the plaint. Further, the judgments relied upon by the learned Senior counsel for the revision petitioners cannot be applied to the facts of this case.
18.Hence, the revision is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.
15.04.2013 Index:Yes/No Internet:Yes/No er R.S.RAMANATHAN,J er To, The XIV Assistant City Civil Judge, Chennai.
Pre-delivery order made in CRP(PD)(MD)No.1658 of 2012 15.04.2013