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2008 DIGILAW 3155 (MAD)

Victordoss & Another v. Radhika

2008-08-28

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- The Judgment and decree in A.S.No.454 of 2005 on the file of the Court of VI Additional Judge, City Civil Court, Chennai, dated 23.02.2006, is under challenge in this second appeal. 2. The defendants in O.S.No.1944 of 2004 before the IV Assistant Judge, City Civil Court, Chennai, had filed I.A.No.11463 of 2004 under Order 7 Rule 11(a) of CPC to reject the plaint in O.S.No.1944 of 2004 on the ground that the plaintiff has no cause of action to file the suit. The learned IV Assistant Judge / Trial Judge holding that since the plaintiff has failed to schedule his property to the plaint schedule, she is not entitled to the relief of right of usage, easementary right etc., had rejected the plaint. Aggrieved by the findings of the learned Trial Judge, the plaintiff in O.S.No.1944 of 2004 had preferred A.S.No.454 of 2005 before the VI Additional Judge, City Civil Court, Chennai. The learned VI Additional Judge, City Civil Court, Chennai, after giving due consideration to the submissions made by the learned counsel on both sides, has held that the plaint cannot be rejected for the failure of the plaintiff scheduling her property to the plaint schedule, had allowed the appeal thereby setting aside the judgment and decree of the trial Court in O.S.No.1944 of 2004, giving an opportunity to the plaintiff to file necessary petition to amend the plaint description of the property, more particularly to schedule the passage in question separately, which necessitated the defendants to file this second appeal before this Court. 3. The following substantial questions of law were drafted for consideration on 5.09.2006 by this Court: a) Whether the lower appellant Court was right in holding that there is cause of action for the respondent/plaintiff to maintain a suit contrary to the findings rendered in CRP.Nos.1009 and 1094/2003? b) Whether the judgment and decree of the lower Appellate Court are in accordance with the settled proposition of law laid down by this High Court rendered in CRP.Nos.1009 and 1094 of 2003? c) Whether the Lower Appellate Court was right in allowing the claim of the respondent for easementary right when the same was rejected categorically by this Court in the earlier proceedings in CRP.Nos.1009 and 1094 of 2003? c) Whether the Lower Appellate Court was right in allowing the claim of the respondent for easementary right when the same was rejected categorically by this Court in the earlier proceedings in CRP.Nos.1009 and 1094 of 2003? The above said substantial questions of law are recast as follows:- 1) Whether the plaint in O.S.No.1944 of 2004 is liable to be rejected under Order 7 Rule 11(a) of CPC for the reasons stated in the order of the trial Court in I.A.No.11463 of 2004 in O.S.No.1944 of 2004? 2) Whether the decree and judgment in A.S.No.454 of 2005 on the file of the VI Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal? 4. Substantial Question of law No.1:-Under Order 7 Rule 11(a) of CPC a plaint can be rejected if it fails to disclose a cause of action. In the plaint filed by the plaintiff at para 15, the plaintiff has given a cause of action as follows:- "The cause of action for filing the present suit arose on 8. 2000 when this plaintiff contended the passage as a public passage, and on 16. 2001 when the competent authority determined that the land occupied by the defendants herein in Village No.2, Survey No.25 as an encroachment made by the defendants on public property and thereupon issued orders of eviction on 11.04.2003 when the proceedings initiated by the defendants before the Appellant Authority in CMA.No.98 & 99 set aside the order dated 16. 2001 and the order of the Honble High Court dated 23. 2001 and the order of the Honble High Court dated 23. 2004 in CRP.Nos.1009/2002 & 1094/2002, and the threat made by the defendants by lodging a complaint before the police authorities and the threat of the defendants to put up construction of a wall at the Southern side of the promises, on 13.04.2004 on the basis of the orders of the Honble Court with the intention to cause violation to the easementary rights of the plaintiff, when the defendant proposed to put up a construction more particularly a wall in such a manner to enclose the private passage on the Southern portion of the suit property as well as to prevent light and air through the windows situated on the southern wall of the premises situated in the Schedule of property which necessitated this plaintiff to object to the same based on a complaint lodged with the Inspector of Police, K.1 Sembium Police Station and when the said local Inspector called for an enquiry, information as to the pendency of O.S.No.4895 of 2000 was also made by this plaintiff therefore the Police ordered for an enquiry by the local revenue authority, namely, the Tahsildar on 14. 2004 and on such of the following dates when the dispute has been raised by the defendant therein." The Trial Judge has rejected the plaint on the ground that the question whether the suit property was a private property or a poramboke property was decided in the earlier proceedings as that of a private property, but the disputed property is not described in the schedule by the plaintiff instead the plaintiff has scheduled the property belonging to the defendants over which no dispute is mentioned and that the southern side of the property of the plaintiff, which is the disputed property was not described in the plaint schedule. The learned Trial Judge has further observed that the alleged cause of action which gives right to institution of suit is not pertaining to the suit schedule property and that there is no cause of action to institute the suit in regard to property more fully described in the schedule. Only on the above said simple reasoning the plaint was rejected by the trial Judge. Only on the above said simple reasoning the plaint was rejected by the trial Judge. 4(a) On appeal the learned first appellate Judge while allowing the appeal has observed that in the plaint schedule the plaintiff has omitted to show separately the disputed property and that is not the ground to reject the plaint under Order 7 Rule 11(a) of CPC. The disputed property is the passage in which the plaintiff is claiming easementary right and also right of usage over the passage and also for permanent injunction, and the omission of the plaintiff to schedule the disputed property separately will not affect the right of the plaintiff which is to be decided only at the time of trial. The plaintiff in the plaint cause of action column has further averred that the plaintiff has also made complaint to the police as well as to the Tahsildar with respect to the passage. The first appellate Court has further given the liberty to the plaintiff to file necessary application to amend the plaint description of the property, passage separately. 4(b)The learned counsel for the appellants Mr.S.Vijayakumar would contend that the property scheduled to the plaintiff admittedly belongs to the appellants/defendants and even if the defendants put up any construction of a wall on his property will not give rise to any cause of action to the plaintiff to file the suit and that whether the disputed passage is a private one or a public one was also already decided in the earlier proceedings as to the effect that the passage is a private one belongs to the defendants and that this Court in CRP.NPD.Nos.1009 & 1094 of 2003 and CMP.Nos.10489 & 11568 of 2003 has finally decided that the disputed passage is a private property belonging to the defendants. 4(c) At this juncture it is pertinent to note that the plaintiff in his plaint has asked for the plaintiffs easementary right of air & light through window located on the southern side wall of the suit property, and also asked for the declaration of the plaintiffs right of usage over the private passage as the southern boundary of the schedule mentioned property. But the plaintiff has scheduled only the property belonging to the defendants, as rightly observed by the learned Trial Judge has failed to schedule the disputed passage. But the plaintiff has scheduled only the property belonging to the defendants, as rightly observed by the learned Trial Judge has failed to schedule the disputed passage. As rightly observed by the learned First Appellant Judge in A.S.No.454 of 2004, it cannot be said that the plaintiff has no cause of action to file the suit. Whether the plaintiff is entitled to the easementary right of air & light through the windows located on the southern side wall of the suit property? is a matter to be decided only in the suit even though the disputed passage, as contended by the learned counsel for the appellant, has been decided in the earlier proceedings as it belongs to the defendants, as a private passage. As directed by the learned First Appellate Judge the plaintiff has to take necessary steps before the Trial Court for including the disputed passage separately to the plaint schedule without altering the existing schedule of property. Hence, I hold on Substantial Question of law No.1 that the rejection of plant under Order 7 Rule 11(a) of CPC, as rightly held by the First Appellate Judge in A.S.No.454 of 2005, is not maintainable. 5. Substantial Question of law No.2:-In view of my findings and discussion in the earlier paragraphs I hold on Substantial Question of Law No.2 that the decree and judgment in A.S.No.454 of 2005 on the file of the VI Additional Judge, City Civil Court, Chennai, need not be set aside for the reasons stated in the memorandum of appeal. 6. In fine, the second appeal is dismissed confirming the judgment and decree in A.S.No.454 of 2005 on the file of the VI Additional Judge, City Civil Court, Chennai. The learned Trial Judge is directed to restore O.S.No.1944 of 2004 to his file and after giving an opportunity to the plaintiff to amend the plaint as directed by the learned First Appellate Judge in A.S.No.454 of 2005, and after giving opportunity to the defendants to file their written statement and after framing necessary issues, shall dispose of the same within three months from the date of receipt of copy of this judgment.