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2005 DIGILAW 1355 (MAD)

N. Krishnan Nair & Others v. Devaraj & Another

2005-08-16

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of the Constitution of India to reject the Plaint in O.S.No.6 of 2003 on the file of Sub-Court, Padmanabhapuram, as stated therein.) This Civil Revision Petition under Article 227 of the Constitution of India is preferred by Defendants 1 to 4 in O.S.No.6 of 2003 on the file of Sub-Court, Padmanabhapuram to reject the Plaint in O.S.No.6 of 2003. For convenience, the parties are referred to by their rank in O.S.No.335 of 2001. 2. O.S.No.335 of 2001: - } (D.M.C., Padmanabhapuram)} The Plaintiff has filed this Suit for Declaration of Title and Possession and also for Permanent Injunction restraining the Defendant – Devaraj from interfering with their possession. Case of the Plaintiff is that he has purchased the Property – 1.26 acres with Jackfruit trees thereon from the original owner by the Sale Deed dated 12.09.1986. Re.S.No.31/3 and 915/7 which are poramboke land, which lies, on the North and West of the Patta Land are in possession of the Plaintiff. As soon as the Plaintiff purchased the property, he has put up basement around the patta land and poramboke area and erected stone pillars over it and fenced the same with barbed wire fence in September 1986 itself. There were three Jack Fruit Trees in the Suit Property. The Plaintiff cut and removed the same in August 2001. The immediate Eastern property is a public cement road. The Defendant's Property is situated further East of the Road. Out of that property, the Defendant has sold Western most portion – roughly about 10 cents to one Dr.Soliteeswaran retaining the Eastern most portion for himself. The said Soliteeswaran, who has purchased the property from the Defendant has put up a house and the same lies as a separate plot. The fence on the Eastern side of the Suit Property got dismantled when the Jack Fruit trees were cut and removed. Taking advantage of dismantling Eastern Fence, the Defendant is making claim over the Suit Property that the Suit Property belongs to him. The Plaintiff is settled at Chennai with his Wife and Son. Only his Sister is available in the Suit village. Hence, the Plaintiff has filed the Suit for Declaration and possession and also consequential Injunction. 3. The Defendant resisted the Suit contending that the Plaint Schedule Property is not a portion of S.No.31/12. The Plaintiff is settled at Chennai with his Wife and Son. Only his Sister is available in the Suit village. Hence, the Plaintiff has filed the Suit for Declaration and possession and also consequential Injunction. 3. The Defendant resisted the Suit contending that the Plaint Schedule Property is not a portion of S.No.31/12. There is no such specific portion or plot mentioned as the Plaint Schedule Property. With the help of Sister – Gopakumari, the Plaintiff has cut and removed the huge Jack Fruit Tree on 01.09.2001, which stood in the property belonging to the Defendant. On knowing about the same, the Defendant has lodged a Criminal Complaint in Thiruvattar Police Station and the same was registered in Crime No.290 of 2001. The Jack Fruit Tree cut and removed from the Suit Property by the Plaintiff is worth more than Rs.40,000/-. The Defendant is entitled to recover the said amount from the Plaintiff. 4. In O.S.No.335 of 2001, Commissioner was appointed to note down the physical features of Re-survey No.61/1, which is a garden land and to locate the Plaint Schedule Property. The Commissioner has filed his Report on 22.04.2002. He has noted the roots of Jack Fruit Trees, which were cut and removed. The remaining root was found to be of 3 feet diameter. When the Suit in O.S.No.335 of 2001 was taken up for hearing, the Defendant – Devaraj has filed O.S.No.6 of 2003 on the file of Subordinate Court, Padmanabhapuram stating that after selling portion of the property to Dr. Soliteeswaran, the remaining area of 32.300 cents is in possession and enjoyment of the Defendant. As the Title Holder, the Defendant – Devaraj has also obtained patta by paying the taxes. The property on the Northern side of the Plaint Schedule Property is the poramboke land, which is in possession and enjoyment of the Plaintiff by paying "B-Memo". The road was formed on the Western Side of the Plaint schedule property from South to North with the consent of the Plaintiff. The Jack Fruit Tree more than 60 feet in height belongs to the Defendant. He has obtained permission from Kumarankudi Village Panchayat for construction of a Compound Wall on the West and South of the Suit Property. Taking advantage of the absence of the Defendant – Devaraj, the Plaintiff along with his Sister Gopakumari have cut and removed the Jack Fruit Trees worth Rs.30,000/-. He has obtained permission from Kumarankudi Village Panchayat for construction of a Compound Wall on the West and South of the Suit Property. Taking advantage of the absence of the Defendant – Devaraj, the Plaintiff along with his Sister Gopakumari have cut and removed the Jack Fruit Trees worth Rs.30,000/-. Hence, the Defendant has filed the Suit for Declaration of his Title and possession and for damages of Rs.30,000/-. 5. I.A.No.47 of 2003:- The Defendant has filed this Application for Interim Injunction. Alleging that on 04.01.2003, the Plaintiff has attempted to trespass into the Suit Property, the Defendant sought for Interim Injunction. 6. This Civil Revision Petition is filed to reject the Plaint in O.S.No.6 of 2003. According to the Plaintiffs, the Suit Property in both the Suits are one and the same and that the Defendant suppressing the previous suit in O.S.No.335 of 2001 has filed the Suit for the same relief of Declaration of his Title and Possession and for Permanent Injunction. Alleging abuse of process of Court, the Petitioners have filed this Civil Revision Petition to strike off the Plaint in O.S.No.6 of 2003 on the file of Sub-Court, Padmanabhapuram. 7. Urging the Court that the filing of O.S.No.6 of 2003 is an abuse of Court, learned counsel for the Revision Petitioner has submitted that the Plaint in O.S.No.6 of 2003 is to be struck off mainly on the finding in I.A.No.41 of 2003 in O.S.No.6 of 2003 on the file of Sub-Court, Padmanabhapuram. Drawing the attention of the Court to the findings of the Subordinate Judge, Padmanabhapuram in I.A.No.41 of 2003 that properties in both the suits are one and the same, learned counsel for the Revision Petitioners contended that suppressing the filing of earlier Suit in O.S.No.335 of 2001, the Respondent has filed O.S.No.6 of 2003. It is further submitted that filing O.S.No.6 of 2003 relating to the same property amounts to clear abuse of process of Court and the Plaint is to be rejected under Order VII Rule 11 C.P.C. 8. The Revision Petition is filed under Article 227 of the Constitution of India to strike off the Plaint in O.S.No.6 of 2003 on the file of Sub-Court, Padmanabhapuram. Exercising the power under Article 227 of the Constitution of India, this Court would not interfere unless there is a jurisdictional error or there is gross abuse of process of Court. The Revision Petition is filed under Article 227 of the Constitution of India to strike off the Plaint in O.S.No.6 of 2003 on the file of Sub-Court, Padmanabhapuram. Exercising the power under Article 227 of the Constitution of India, this Court would not interfere unless there is a jurisdictional error or there is gross abuse of process of Court. The main point arising for consideration is whether filing of O.S.No.6 of 2003 is an abuse of process of Court warranting striking of the Plaint in O.S.No.6 of 2003? 9. In both the Suits, the Suit Property relates to Re.S.No.31/12, area of about 2 cents, Mekkode Village. There seems to be boundary dispute between the parties and dispute seems to be over Three Jack Fruit Trees on the Western Side of the Defendant / Eastern Side of the Plaintiff. According to the Defendant, the Plaintiff has cut and removed Jack Fruit Trees in August 2001. Further case of the Plaintiff is that the Suit Property to an extent of 1.26 acres with the trees thereon belonged to him by a Sale Deed dated 12.09.1986. Regarding the same Suit Property, the Defendant has filed O.S.No.6 of 2003. 10. O.S.No.335 of 2001 was posted in the Special List for Trial. The Plaintiff – P.W.1 was examined in Chief on 21.12.2002. After completion of Chief-examination of the Plaintiff, the case was adjourned to 07.01.2003 for Cross-examination. It is alleged that on 07.01.2003 the Defendant has filed I.A.No.27 of 2003 seeking an adjournment on the ground that he is suffering from Stomach ache. During the interregnum period, the Defendant has filed O.S.No.6 of 2003 before the Subordinate Court, Padmanabhapuram. In the Plaint averments, the pendency of O.S.No.335 of 2001 and the commencement of the Trial Court has not been stated. Can the filing of the subsequent Suit in O.S.No.6 of 2003 would amount to abuse of process of Court is to be considered in the light of the averments in both the Plaint. O.S.No.6 of 2003 was filed for Declaration of the Defendant's Title, possession and for damages of Rs.30,000/-. Even in the Written Statement in O.S.No.335 of 2001, the Defendant has put forth the plea that he is entitled to the value of the Trees as damages estimated at Rs.40,000/-. No doubt, the Defendant could have done better had it been put forth as a counter claim in O.S.No.335 of 2001. Even in the Written Statement in O.S.No.335 of 2001, the Defendant has put forth the plea that he is entitled to the value of the Trees as damages estimated at Rs.40,000/-. No doubt, the Defendant could have done better had it been put forth as a counter claim in O.S.No.335 of 2001. Perhaps the Defendant was not suitably advised at the time when he filed Written Statement in O.S.No.335 of 2001. Thereafter making a claim of Rs.30,000/- as damages towards the Jack Fruit Trees, the Defendant has filed the Suit in O.S.No.6 of 2003 on the file Sub-Court, Padmanabhapuram. Equally, the Defendant could have done better had he referred to the pendency of the earlier Suit in O.S.No.335 of 2001 on the file of District Munsif Court, Padmanabhapuram. Non-reference to the earlier suit does not in any way amount to wilful suppression or deliberation in re-litigation amounting to the abuse of process of Court. To stake his claim for Rs.30,000/-, the Defendant might have thought fit to file a separate suit and thereafter to establish his right and title over the Suit Property. The Defendant cannot be said to have abused the process of the Court warranting striking off the Plaint in O.S.No.6 of 2003. 11. The main ground urged for striking off the Suit in O.S.No.6 of 2003 is the finding in I.A.No.41 of 2003 where the learned Subordinate Judge has found that the property in both the Suits are one and the same. The lower court has observed "...vdnt Vw;fdnt kDr; brhj;J Fwpj;J vjph;kDjhuh;fs; jhf;fy; bra;Js;s tHf;F epYitapy; cs;sJ vd;gJk;. mjpy; kDjhuUf;F vjpuhf vjph;kDjhuh;fs; cWj;Jf; fl;lis bgw;Ws;shh;fs; vd;gJk; bjspthf;fg;gl;Ls;s epiyapy; mnj brhj;J Fwpj;J ,e;j ePjpkd;wj;jpy; kDjhuh; ,e;j tHf;if jhf;fy; bra;J ,ilf;fhy cWj;Jf;fl;lis bgw;Ws;sJ rl;lg;goahd Kiwapy; mikatpy;iy..." On the above findings, learned Subordinate Judge further observed that suppressing the earlier Suit in O.S.No.335 of 2001, the Application filed in I.A.No.41 of 2003 seeking for Interim Injunction is not maintainable. There is no force in the contention that the suit in O.S.No.6 of 2003 is to be struck off mainly on the ground of above findings in I.A.No.41 of 2003 that both the Suits relate to the same subject matter. 12. In support of his contention, learned counsel for the Revision Petitioner has relied upon the decision reported in Seeni Alias Sundarammal ..Vs.. 12. In support of his contention, learned counsel for the Revision Petitioner has relied upon the decision reported in Seeni Alias Sundarammal ..Vs.. Ramasamy Poosairi And Others ( 2000 (3) M.L.J. 273 ) wherein A.RAMAN, J. has observed that successive filing of the Suits by the Plaintiff suppressing the filing of earlier Suit is a clear case of abuse of process of Court and exercising power under Article 227 of the Constitution of India and the Suit was ordered to be struck off. The said case arose on different factual footing. There was already litigation with reference to which the matter has been reached to High Court by way of Second Appeal wherein Interim Order has been passed vacating the Injunction. Suppressing the earlier litigation, another suit has been filed and the First Respondent thereon could not get any Interim Order. Only thereafter another suit has been filed. Pointing out the successive filing of the litigation, learned Judge has observed that it clearly amounts to abuse of process of Court and such tendency on the part of the litigant should be put down with strong hands. 13. In another decision reported in 1997 (2) L.W. 761 , the Suit for permanent Injunction was still pending. While so, the Plaintiff has filed another Suit for same relief which was held to be abuse of process of Court and to prevent such actions being continued, the Suit was ordered to be struck off. 14. In the decision reported in Sopan Sukhdeo Sable And Others ..Vs.. Assistant Charity Commissioner And Others ( 2004 (3) S.C.C. 137 ), the jurisdiction of the Civil Court was barred under Bombay Public Trust Act 1950. Under such circumstances, the Supreme Court has observed that the Trial Court could exercise the power under Order VII Rule 11 C.P.C at any stage of the Suit and the Plaint could be rejected upon considering the averments in the Plaint and upon hearing the parties. 15. The case in hand stands entirely on different factual footing. It is not a case of successive suits filed by the same parties nor a case arising out of bar of jurisdiction of the Civil Court. Earlier, the Plaintiff has filed the Suit for declaration of his Title and possession and also for Permanent Injunction. 15. The case in hand stands entirely on different factual footing. It is not a case of successive suits filed by the same parties nor a case arising out of bar of jurisdiction of the Civil Court. Earlier, the Plaintiff has filed the Suit for declaration of his Title and possession and also for Permanent Injunction. Later, the Defendant has filed O.S.No.6 of 2003, seeking for Declaration of his Title and Possession and claiming damages of Rs.30,000/-. Under such circumstances, the Defendant cannot be said to have abused the process of the Court. 16. By filing O.S.No.6 of 2003, the Defendant only stakes to put forth his case and also claiming damages of Rs.30,000/-. Filing of the Suit in O.S.No.6 of 2003 does not in any way amount to abuse of process of the Court. This Civil Revision Petition has no merits and is bound to fail. 17. For the foregoing reasons, this Civil Revision Petition is dismissed. There is no order as to costs. Consequently, the connected C.M.P.No.2069 of 2003 is dismissed. In both the Suits, same property is the subject matter. In the interest of justice, both the Suits are to be tried together. It is ordered that the suit in O.S.No.335 of 2001 pending on the file of District Munsif Court, Padmanabhapuram is ordered to be transferred to the file of Subordinate Court, Padmanabhapuram for trying along with O.S.No.6 of 2003, pending on its file. Learned District Munsif, Padmanabhapuram is directed to transfer O.S.No.335 of 2001 (through the Principal District Judge, Kanyakumari at Nagercoil) to the file of Subordinate Court, Padmanabhapuram.