Madras High Court
Vaniyar Nala Sangam vs Kumar on 15 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.4238 of 2009 and M.P.No.1 of 2009 1. Vaniyar Nala Sangam Rep. By its President, Mariappa Chettiar, Son of Kandasamy Chettiar, Rayappa Oil Mill, Rayan Kovil Colony, Mangalam Road, Avanashi Taluk. 2.Vaniyar Nala Sangam Rep. By its Secretary Ka.Ka.Arumugam, Son of Karuppanna Chettiar 8/190 Vaniyar Street, Avanashi Town, Avanashi Taluk. .. Petitioners. Versus 1.Kumar 2.Arumugam 3. The Tahsildar, Taluk Office, Avanashi. 4.State of Tamilnadu Rep. By the District Collector, Collectorate, Tiruppur. .. Respondents. PRAYER: Petition filed under Article 227 of the Constitution of India, seeking to struck off the plaint in O.S.No.254 of 2009, on the file of District Munsif Court, Avanashi, admitted on 12.10.2009. For Petitioners: Mr.R.Subramanian for Mr.MA.P.Thangavel For Respondents: Mr.V.Raghavachari for Mr.S.Sithirai Anandam (R1 & R2) Ms.P.Shanthi Rakkappan Government Advocate (R3 & R4) O R D E R
This civil revision petition has been filed to strike off the plaint, in O.S.No.254 of 2009, on the file of the District Munsif Court, Avinashi.
2. The petitioners in the present civil revision petition are the first and the second defendants in the suit, in O.S.No.254 of 2009. The suit, in O.S.No.254 of 2009, had been filed by the first and the second respondents, on the file of the District Munsif Court, Avinashi, praying for a decree of mandatory injunction directing the petitioners to remove the encroachments made by them, in the suit properties and for a permanent injunction, restraining the third and the fourth respondents from changing the patta, in respect of the suit properties, in favour of the petitioners.
3. The learned counsel appearing on behalf of the petitioners had stated that the admission of the suit, in O.S.No.254 of 2009, by the trial Court, is manifestly erroneous, illegal and contrary to the decisions of the Apex Court. It had also been stated that the trial Court had erred in admitting the plaint, without taking notice of the previous decree, in O.S.No.364 of 1987, on the file of the District Munsif court, Tiruppur. The trial Court had not taken note of the fact that the suit is barred by the doctrine of res judicata, as the parties, the properties, the issues and the reliefs sought for, in O.S.No.364 of 1987 and in O.S.No.254 of 2009, are one and the same.
4. The filing of the present suit, by the first and the second respondents, is an abuse of the process of law. The learned counsel had also submitted that the petitioners in the present civil revision petition are not seeking the reliefs, under Order VII Rule 11 of the Civil Procedure Code, 1908. The present petition has been filed praying that this Court may be pleased to invoke the powers vested in it, under Article 227 of the Constitution of India, to strike off the plaint filed in the suit, in O.S.No.254 of 2009.
5. It has been stated that the description of the properties in the schedule of the plaint filed in the suit is vague and incorrect. Further, the trial Court had passed an ex parte order appointing an Advocate Commissioner to note the physical features of the suit property and to file a report, along with the necessary sketch. In effect, the Advocate Commissioner is expected to collect evidence for the trial Court to render its decision in the suit, eventhough the title of the petitioners had been declared by a judgment and decree, made in O.S.No.23 of 1954, on 16.7.1954, based on an earlier sale deed. It has also been stated that, from the description of the property, the trial Court cannot decree the suit, as prayed for by the first and the second respondents. Further, the plaint filed in the suit does not disclose the cause of action. Unless it is made clear as to the extent and the nature of encroachment, it would not be possible for the trial Court to grant appropriate reliefs, as prayed for in the suit.
6. The learned counsel had relied on the following decisions, with regard to the powers of this Court, under Article 227 of the Constitution of India.
6.1. In Swaminathan.K.K. V. Srinivasagam (2003(4) CTC 347), it has been held as follows:
"33. Be it under Article 227 of the Constitution of India or under Section 115, CPC, the High Court has general supervisory jurisdiction. That supervisory revisional jurisdiction of the High Court is the residuary jurisdiction conferred on the High Court. Thus, exercising the supervisory jurisdiction conferred on the High Court under Section 115, CPC, it is just and necessary that the plaint in O.S.No.2473/1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to direct the Revision Petitioner to pay the costs of the suit to the respondent.
34. For the reasons state above, O.S.No.2473 of 1996, on the file II Additional District Munsif Court, Coimbatore, is ordered to be struck off. Resultantly, O.S.No.2473 of 1996 stands dismissed. Revision Petitioner/Plaintiff is directed to pay the suit costs to the respondent."
6.2. In Bannari Amman Sugars Limited V. R.Sakthivel (2008(1) CTC 288), it has been held as follows:
"Further, as rightly pointed out by the learned counsel for the revision petitioner, the respondent cannot invoke the ommon law remedy available under the Apecific Relief Act and hence, the Trial Court cannot invoke its jurisdiction under Section 9 of the Code of Civil Procedure to take the Suit on its file since the employer and employee relationship still exists according to the revision petitioner/Management and the resignation letter has not been accepted till this date. Therefore, in the above circumstances, the plaint filed by the respondent for permanent injunction restraining the petitioner from conducting any enquiry with regard to the misappropriation, which is not denied by the respondent, is liable to be rejected on the ground that the management cannot be restrained from exercising its discretion in this behalf unless and until it is proved that the employer and employee relationship has come to an end. Therefore, it is axiomatic that if the petitioner-Company takes any disciplinary action against the respondent, he has to ventilate his grievance by approaching the proper forum at the appropriate time and and not by way of filing the Suit restraining the petitioner from exercising its right. Therefore, it is a fit case where this Court has to invoke the jurisdiction of this Court under Article 227 of the Constitution of India to reject the plaint on the ground that the suit itself is not maintainable and the respondent has alternative remedy before the appropriate authority against the action taken by the petitioner Company, which relates to employer and employee relationship."
6.3. In Tamil Nadu Handloom Weavers Cooperative Society V. S.R.Ejaz (2009-5-L.W.79), it has been held as follows:
"41. There is no dispute with respect to the legal position that before approaching the High Court in exercise of jurisdiction under Article 227 of the Constitution of India, the parties should avail the alternative remedy. However, in a given case, if the attempt of a party to the litigation was to take undue advantage and the suit was a clear abuse of process of law and that too in a case in which the every suit itself was filed only to circumvent the order passed by the Supreme Court, this Court was not expected to be a mute spectator without taking steps to correct the jurisdictional error.
42. The remedy as provided under Order 7 Rule 11 CPC is an effective remedy to axe the civil suit at the threshold in case it satisfies the ingredients of the said provision. The trial Court was given exclusive jurisdiction to decide the fate of a litigation in its initial stage itself. Therefore, the trial Court should be apprised of the inherent defects in the plaint and on such appraisal, the trial Court was obliged to consider the maintainability of the suit. It is true that the jurisdiction of the trial Court cannot be bypassed in a routine manner. Normally, the parties should be directed to pursue the statutory remedy available to them before availing the constitutional remedy. However, in extraordinary circumstances, when it was demonstrated that there was flagrant violation of the principles of law, or abuse of process of Court or the lower Court was accused of dereliction of duty of grave nature, the parties would be entitled to invoke the jurisdiction under Article 227 of the Constitution of India."
7. Per contra, the learned counsel appearing on behalf of the first and the second respondents had submitted that the allegations made by the first and the second respondents, who are the plaintiffs in the suit, in O.S.No.254 of 2009, would alone constitute the cause of action for the filing of the suit. When the petitioners had not sent any reply to the notice sent on the behalf of the first and the second respondents, they had been constrained to file the suit, in O.S.No.254 of 2009, on the file of District Munsif Court, Avinashi.
8. The learned counsel has also stated that the first and the second respondents in the present civil revision petition were not parties to the earlier civil proceedings, as alleged by the petitioners. Therefore, the doctrine of res judicata cannot apply to the present suit. Even though an ex parte order had been passed by the trial Court, appointing the advocate commissioner, both the counsels and the parties were present, when he had gone to visit the suit site. He had also stated that the allegation made by the petitioners, stating that the filing of the suit by the first and the second respondents is an abuse of the process of law, cannot be accepted. The petitioners have approached this Court by filing a civil revision petition, even without filing a written statement in the suit. They had not raised any objections against the report of the Commissioner, till date.
9. The learned counsel had relied on the following decisions to show that the powers vested in this Court, under Article 227 of the Constitution of India, are restricted in nature and that they are invoked only under certain specific circumstances. Since, the petitioners have not been in a position to show that such circumstances had arisen before the trial Court in the suit, in O.S.No.254 of 2009, the Civil Revision Petition cannot be maintained.
1. State of Orissa V. Klockner and Company (1996(8) SCC 377);
2. Mangat Singh Trilochan Singh V. Satpal (2003(8) SCC 357);
3. Ganesan, D and 2 others V. M.S.Chandra Bose & another (1996(II) CTC 490);
4. Ganapathy Subramanian Vs. S.Ramalingam and Ors. (MANU/TN/7718/2006);
5. Lili Jabakani.J. V. T.A.Chandrasekhar (2006(5) CTC 848 and
6. Krishnammal V. Venkatrayalu Naidu (2009(2) CTC 319).
10. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, and in view of the decisions cited above, it is clear that the civil revision petition filed by the petitioners cannot be sustained in the eye of law.
11. The petitioners have not been in a position to show that certain extraordinary circumstances had arisen before the trial Court, in O.S.No.254 of 2009, for this Court to invoke its powers, under Article 227 of the Constitution of India, to strike off the plaint, as prayed for by the petitioners. It has not been shown as to how the doctrine of res judicata applies to the present case. Further, it would be open to the petitioners to raise all relevant issues before the trial Court, in accordance with law.
12. From the averments made on behalf of the petitioners, as well as the first and the second respondents in the civil revision petition, it cannot be concluded that the filing of the suit, in O.S.No.254 of 2009, on the file of the District Munsif Court, Avinashi, is an abuse of the process of law. It is also noted that the first and the second respondents are not parties to the earlier civil proceedings in O.S.No.23 of 1954, on the file of the District Munsif Court, Dharapuram. It is for the petitioners to show that there is no cause of action for the filing of the suit and that no proper description of the suit properties have been given in the plaint filed in the suit, in O.S.No.254 of 2009. The petitioners have also failed to show as to how they are prejudiced by the ex parte order passed by the trial Court, appointing an Advocate Commissioner to inspect the suit properties and to file a report thereon. As such, the civil revision petition is devoid of merits. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 15-04-2010 Internet:Yes/No csh To The District Munsif Court, Avanashi.
M.JAICHANDREN J.
csh C.R.P.(PD) No.4238 of 2009 15-04-2010