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2009 DIGILAW 642 (MAD)

Rasappan v. Thirumoorthy & Another

2009-02-26

S.RAJESWARAN

body2009
Judgment :- The second defendant in O.S.No.343 of 2006 is the revision petitioner before this Court. He is aggrieved by the order of the trial Court dated 13-09-2007 made in I.A.No.1074 of 2006, in O.S.No.343 of 2006, wherein the trial Court dismissed the I.A. filed by the revision petitioner under Order VII Rule 11 CPC, to reject the plaint as barred by law. 2. O.S.No.343 of 2006 has been filed by the first respondent/plaintiff for granting a permanent injunction restraining the defendants in the suit from evicting the plaintiff by force from the suit schedule property except under due procees of law. 3. The case of the first respondent/plaintiff before the trial Court in O.S.No.343 of 2006 is that, the suit property originally belonged to the first defendant in the suit (second respondent herein) who is a paternal uncle of the plaintiff. The first defendant in the suit joined a hoisery unit in Tirupur and settled there. Therefore, he leased out the suit schedule property to the plaintiff for an yearly rent of Rs.1,000/-and the plaintiff has been in possession and enjoyment of the suit property as a cultivating tenant on the basis of the lease deed dated 14-04-1995. He is entitled to the benefits conferred under the record of the Tenency Rights Act. 4. While so, the plaintiff came to know that the second defendant/revision petitioner purchased the property through Court in a specific performance suit. The plaintiff is not a party to the Court proceedings and he has no knowledge about the suit. He has raised plantains, tobacco seedings on the suit land by spending a lot of money. The second defendant/revision petitioner, on 17-09-2006, came to the suit property and informed the plaintiff that he is the owner of the suit property and the plaintiff should vacate immediately as he wants to lease out the property to a third party. When the plaintiff requested the second defendant to permit him to continue as a cultivating tenant, the same was not accepted by the second defendant. The second defendant again came to the suit property with men on 23-09-2006 and 24-09-2007 and tried to evict the plaintiff by force. The same was successfully resisted by the plaintiff with the help of friends and relatives. Therefore, he approached the trial Court by filing the above suit for the aforesaid relief. 5. The second defendant again came to the suit property with men on 23-09-2006 and 24-09-2007 and tried to evict the plaintiff by force. The same was successfully resisted by the plaintiff with the help of friends and relatives. Therefore, he approached the trial Court by filing the above suit for the aforesaid relief. 5. The second defendant after entering appearance in the suit, filed I.A.No.1074 of 2006, under Order VII Rule 11 CPC to reject the plaint as barred by law. The case of the second defendant/revision petitioner in I.A.No.1074 of 2006 is that he filed a suit against the first defendant in the suit (the second respondent herein) and his son Soundar Rajan and obtained a decree for specific performance. He filed E.P.No.74 of 2001 to execute the decree and thereafter obtained the possession of the suit schedule property on 04-08-2006 through the process of law. At the time of taking possession of the property, there was no objection from any one much less from the first respondent/plaintiff. Therefore, the present suit was filed by the first respondent/plaintiff with an ulterior motive of nullifying the decree passed in O.S.No.133 of 1999 and the order passed in E.P.No.74 of 2001. There is no cause of action for filing the present suit and the same is also barred by law. Hence, the plaint is to be rejected. 6. This application was resisted by the first respondent/plaintiff by filing a counter statement, wherein he stated that he is not a party in O.s.No.133 of 1999, nor in E.P.No.74 of 2001. He denied that the actual possession was handed over to the second defendant/revision petitioner on 04-08-2006 on the claim by the second defendant. He made it very clear that he is not claiming any title and the suit is a bonafide litigation by an unfortunate tenant to protect his legal right. 7. The trial Court by order dated 13-09-2007, dismissed I.A.No.1074 of 2006 and aggrieved by the same, the above Civil Revision Petition has been filed by the second defendant under Article 227 of the Constitution of India. 8. This Court, on 25-10-2007, admitted the civil revision petition and ordered notice to the respondents. This Court also granted an interim stay in M.P.No.1 of 2007. 9. Heard the learned counsel for the revision petitioner/second defendant and the learned counsel for the first respondent/plaintiff. I have also perused the records. 10. 8. This Court, on 25-10-2007, admitted the civil revision petition and ordered notice to the respondents. This Court also granted an interim stay in M.P.No.1 of 2007. 9. Heard the learned counsel for the revision petitioner/second defendant and the learned counsel for the first respondent/plaintiff. I have also perused the records. 10. The learned counsel for the revision petitioner contends that this suit is an abuse of process of law as the same has been filed to defeat the rights of the second defendant arose from the decree in O.S.No.133 of 1999 and the order passed in E.P.No.74 of 2001. According to him, if the plaint is read wholly and meaningfully, the same will establish that there is no cause of action at all for filing the present suit and therefore, this Court has to interfere with the trial Courts proceedings which is an abuse of process of law. In support of his submissions, the learned counsel relied on the following decisions: 1)1977 KLT 965((Arivananda-vs-Satyapal) 2) 1997 (3)CTC 567 (Renuka Devi -vs-D.Manoharan) 3)2007(5)MLJ513(K.Shanthi and others -vs- P.Sukumaran and others) 11. Per contra, the learned counsel for the first respondent/plaintiff supported the order of the trial Court by contending that only the plaint averments are to be considered in an application filed under Order VII Rule 11 CPC without drawing any support from the written statement or from the affidavit filed in support of such petition. 12. He further contends that if the plaint averments are perused in O.S.No.343 of 2006, it will definitely show a cause of action and therefore, the trial Court has rightly dismissed I.A.No.1074 of 2006. 13. I have considered the rival submissions carefully with regard to facts and citations. 14. It is settled law that to decide an application under Order VII Rule 11 CPC, the Court has to consider only the plaint averments alone without drawing any support from the written statement or from the affidavit filed in support of the petition filed under Order VII Rule 11. Therefore, the plaint averments in O.S.No.343 of 2006 alone are to be considered to find out whether a case has been made out by the second defendant/revision petitioner to reject the plaint under Order VII Rule 11 CPC. Therefore, the plaint averments in O.S.No.343 of 2006 alone are to be considered to find out whether a case has been made out by the second defendant/revision petitioner to reject the plaint under Order VII Rule 11 CPC. A perusal of the averments contained in the plaint will show that the plaintiff claims that he is a cultivating tenant under the first defendant who is his paternal uncle and the suit schedule property was thereafter purchased by the second defendant/revision petitioner who tried to evict the plaintiff by force. It is his further contention that he was able to successfully thwart such illegal attempt made by the second defendant. If that being so, there is a definite cause of action arose in the suit and the suit cannot be rejected at the threshold itself. The trial Court has rightly adverted to this aspect and dismissed the application. 15. In 1977 KLT 965( 1977 (4) SCC 467 ) (cited supra) the Honourable Supreme Court observed as under: “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not 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 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear 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 10, CPC. 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. 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. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: “It is dangerous to be too good.” The trial court in this case will remind itself of Section 35-A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to colloborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A Judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.” 16. In that case, the father of the petitioner contested the eviction petition lost it, appealed against it, lost again, moved a revision and the same was also dismissed by the High Court. While dismissing the revision, the High Court granted six months time to vacate the premises. We must appreciate Shri Ramasesh for his young candour and correct advocacy.” 16. In that case, the father of the petitioner contested the eviction petition lost it, appealed against it, lost again, moved a revision and the same was also dismissed by the High Court. While dismissing the revision, the High Court granted six months time to vacate the premises. Thereafter, the petitioner filed a suit for a declaration that the order of eviction which has been confirmed right up to the High Court was obtained by fraud and collusion. He also filed a petition before the High Court, seeking further time to vacate the premises. the High Court granted further time on the basis that the suit now filed would be withdrawn by the petitioner. Gaining time by another five months on this score, the petitioner instituted another suit before another Munsif and obtained an ex-parte order of injunction. Only in that context, the Supreme Court observed as stated and therefore, this decision is not at all helpful to the case of the revision petitioner. 17. In 1977 (3) CTC 467 (cited supra) this Court held that Interim Order of injunction obtained by playing fraud of Court on the basis of forged document is to be vacated and the suit itself is to be struck off by the High Court under Article 227 of the Constitution of India. The facts in the above judgment are also totally different from the facts of the present case and therefore, the revision petitioner cannot rely on this decision also. 18. In 2007 (5) MLJ 513 (cited supra) this Court held that when the present suit is nothing but an abuse of process of law and a sharp practice and therefore, the same is liable to be dismissed under Order VII Rule 11 CPC and the law is well settled that the Court has a duty to throw out the vexacious and meritless suit. In the above case, the subsequent suit has been filed questioning the earlier decree on the ground of, it vitiated by fraud and mis-representation and only in that context, the above observations were made by this Court and this judgment is also not helpful to the case of the revision petitioner. 19. In the result, I do not find any merits in the above civil revision petition and accordingly, the same is dismissed. No costs. 19. In the result, I do not find any merits in the above civil revision petition and accordingly, the same is dismissed. No costs. Consequently, M.P.No.1 of 2007 filed for stay is also dismissed. However, considering the fact that the suit is of the year 2006, I direct the trial Court to dispose off the same on merits and in accordance with law within six months from the date of receipt of a copy of this order.