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2010 DIGILAW 1024 (MAD)

K. Nagaraj & Others v. Saraswathy Ammal & Others

2010-03-14

K.VENKATARAMAN

body2010
Judgment :- 1. The Petitioners have filed the present Civil Revision Petition challenging the fair and decretal order of the learned First Additional District Judge Coimbatore dated 9.4.2010 made in I.A.No.1199 of 2009 in O.S. No.596 of 2008. 2. The Defendants in the said Suit are the Petitioners and the Plaintiffs thereon are the Respondents. 3. The Respondents herein have filed the Suit against the Petitioners for declaration that the suit Sale Deeds executed by them in favour of the Petitioners under various documents are null and void and for cancellation of the same. In the said Suit, the Petitioners have taken out an Application in I.A.No.1199 of 2009 under Order 7, Rule 11 of the Code of Civil Procedure and the same came to be dismissed by the learned First Additional District Judge, Coimbatore, which is under challenge in the present Civil Revision Petition. 4. I have heard the learned Senior Counsel appearing for the Petitioners and the learned Counsel appearing for the Respondents. 5. The learned Senior Counsel appearing for the Petitioners contended that – (i) When once the Respondents herein being the Plaintiffs in the above referred Suit have accepted the execution of the Sale Deeds, even if there is any unpaid sale consideration, the suit could be filed only for the alleged unpaid sale consideration. While so, the relief that has been sought for by the Respondents herein is not sustainable. (ii) The Court below erred in holding that the plea of undue influence, fraud and misrepresentation raised by the Respondents herein is sufficient to seek for cancellation of the registered Sale Deeds when the Respondents themselves have categorically pleaded that they have voluntarily executed the Sale Deeds after receiving the cancellation. (iii) The Court below failed to see that the Suit as framed is not maintainable and it is barred by law. (iv) The Court below ought to have seen that the Respondents are trying to waste the precious judicial time by filing the vexations Suit. (v) The Application filed by the Petitioners under Order 7, Rule 11 of the Code of Civil Procedure has not been considered in proper perspective and the dismissal is against the principles laid down by various pronouncement of this Court as well as the Apex Court. 6. (v) The Application filed by the Petitioners under Order 7, Rule 11 of the Code of Civil Procedure has not been considered in proper perspective and the dismissal is against the principles laid down by various pronouncement of this Court as well as the Apex Court. 6. On the other hand, it is contended by the learned Counsel appearing for the Respondents that – (i) The Revision itself is not maintainable. If there is rejection of the Application under Order 7, Rule 11 of the Code of Civil Procedure, the remedy lies in filing the Appeal and not a Revision. (ii) The pleading raised in the Plaint alone shall be taken into account and not the defence while deciding the Application under Order 7, Rule 11 of the Code of Civil Procedure. (iii) The Respondents as Plaintiffs have made a prima facie case and made sufficient pleadings in the Plaint and they cannot be non-suited even at the inception. (iv) A Plaint can be rejected only if there is no cause of action and not when there is a lack of cause of action. 7. Before adverting to the other contentions raised by the learned Senior Counsel appearing for the Petitioners as well as the Respondents, the first and foremost contention that has been raised by the learned Counsel appearing for the Respondents is – “Whether the Revision will lie against the order rejecting the Application filed under Order 7, Rule 11, C.P.C. of an Appeal has to be decided at the first instance?” 8. It is contended by the learned Counsel appearing for the Respondents that against the order of rejecting the Plaint under Order 7, Rule 11, only an Appeal lies and not a Revision. 9. He relied on the decision of this Court reported in The Ootacamund Club, rep. by its Secretary, Post Box No.9, Ootacamund, The Nilgiris v. H.S.Mehta, 2009 (5) CTC 627 . In the said decision, no doubt, it has been held that against the order of refusing to reject the plaint under Order 7, Rule 11 of the Code of Civil Procedure, a Revision under Article 227 of the Constitution of India is not maintainable and the remedy is only by way filing an Appeal. 10. In the said decision, no doubt, it has been held that against the order of refusing to reject the plaint under Order 7, Rule 11 of the Code of Civil Procedure, a Revision under Article 227 of the Constitution of India is not maintainable and the remedy is only by way filing an Appeal. 10. To arrive at the said conclusion, the learned Judge of this Court relied on the decision of the Honourable Apex Court in Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786 . No doubt, in the said decision, the Honourable Apex Court has held that – “An order refusing to reject the Plaint even though it keeps the Suit alive undoubtedly decides an important aspect of the trial which affects a vital right of the Defendant and must, therefore, be construed to be a judgment, so as to be appealable to a Larger Bench.” But in the said decision, an order made by the learned Single Judge of the High Court made under Order 7, Rule 11 of the Code of Civil Procedure was taken by way of Letters Patent Appeal before the Division Bench. Thus, while dealing with the same, the Honourable Apex Court has held that Letters Patent Appeal under Clause 15, is sustainable against the order of the learned Single Judge of the High Court refusing to reject the Plaint made under Order 7, Rule 11 of the Code of Civil Procedure. Hence, I am of the considered view the said aspect was not taken note of by this Court in the said decision. 11. Further, the learned Counsel appearing for the Respondents by relying on the decision in Liverpool & London S.P. & I. Association Ltd. v. K.V. Sea Success I and another, 2004 (9) SCC 512 , contended that an order refusing to reject the Plaint falls in the category of preliminary judgment and hence, the said order is appealable and the Revision under Article 227 of the Constitution of India is not maintainable. 12. The said judgment also deals with right of Appeal, which is provided under Clause 15 of the Letters Patent. Paragraph 114 is usefully extracted hereunder: “The right of Appeal which is provided under Clause 15 of the Letters Patent cannot be said to be restricted.” 13. 12. The said judgment also deals with right of Appeal, which is provided under Clause 15 of the Letters Patent. Paragraph 114 is usefully extracted hereunder: “The right of Appeal which is provided under Clause 15 of the Letters Patent cannot be said to be restricted.” 13. Even in conclusion, the Honourable Apex Court has held that Letters Patent Appeal was maintainable against the order refusing to reject, the Plaint. Paragraph 138 is, thus, usefully extracted hereunder: “We therefore, are of the opinion that letters patent Appeal was maintainable.” 14. The other decision that has been relied on by the learned Counsel appearing for the Respondents in reported in M.V. “Sea Success I” v. Liverpool and London Steamship Protection and Indemnity Association Ltd. and another, AIR 2002 Bom. 151 . Even the said case also deals with an Appeal under Clause 15 of Letters Patent. 15. The learned Counsel appearing for the Respondents relied on the decision in Anjay Bansal v. Anup Mehta & Ors., 2007 (3) LW 166. That is a case where leave that has been sought for to defend the Suit in a Summary Suit made under Order 37, was dismissed and thereafter, the Suit was decreed. While considering the said aspect, in view of the said circumstances, the Honourable Apex Court has held that a Revision under Article 227 of the Constitution of India will not lie before the High Court against the decree passed in a summary Suit. The Honourable Apex Court in the said decision has hold even if the Defendant in a Suit is granted leave to defend the Suit thereby by setting aside the order of the Court below in dismissing the Application filed by the Defendant seeking leave to defend the Suit, the decree will not go automatically end has to be set aside. Only under those circumstances, the Honourable Apex Court has held that a Revision will not lie under Article 227 of the Constitution of India. Hence, the said judgment may not be of any use to the Respondents. 16. Thus, I am of the considered view that an order refusing to reject the Plaint can be questioned in a Civil Revision Petition made under Article 227 of the Constitution of India and an Appeal will not lie against the order. This point is answered in favour of the Petitioners. 17. 16. Thus, I am of the considered view that an order refusing to reject the Plaint can be questioned in a Civil Revision Petition made under Article 227 of the Constitution of India and an Appeal will not lie against the order. This point is answered in favour of the Petitioners. 17. On facts, it is contended on behalf of the Petitioners herein that the relief that has been sought for by the Respondents cannot be granted against the Petitioners especially when the Respondents have admitted the execution of the Sale Deed and also admitted the execution of the entire sale consideration. Even, if any balance of sale consideration has to be paid, the relief that could be made by the Respondents is by way of a Suit for recovery of money. That apart, it has been contended that the reading of the Plaint would disclose that there is no cause of action for the Respondents herein. I am unable to accept the said contention of the learned Senior Counsel appearing for the Petitioners. 18. The Plaint has to be read in whole and the same cannot be read in part. The entire reading of the Plaint would disclose that the Respondents herein have pleaded that a fraud has been committed on them and the Sale Deeds were obtained by the Petitioners. Some of the pleadings made in the Plaint could be usefully extracted hereunder: a. Paragraph is of the Plaint would read thus: “Only after the learning about the Criminal intent to cheat the Plaintiffs of the balance sale consideration in a sum of Rs.32,28,000/- the Plaintiffs, checked the Sale Deeds executed by them to the Defendants. On scrutiny, the Plaintiffs had the shock of their life, when they learned that the Sale Deed with reference to the entire property under document Nos.1766 and 1767 wore already sold by these Plaintiffs to third parties. But the First Defendant and his family members had with a intent to cheat and gain unjust enrichment at the cost of these Plaintiffs’ fame and propriety, again included the properties sold already in the Sale Deed executed in favour of the Defendants sister’s Son Udayakumar, namely the Fourth Defendant. But the First Defendant and his family members had with a intent to cheat and gain unjust enrichment at the cost of these Plaintiffs’ fame and propriety, again included the properties sold already in the Sale Deed executed in favour of the Defendants sister’s Son Udayakumar, namely the Fourth Defendant. It is pertinent to note that this fraudulent Deed of Sale was quite conveniently registered in the name of the Fourth Defendant, the sister’s son of the Second Defendant Udayakumar but not in the name of the Defendants 1 to 3 namely, his wife Suseela or his son Kartikeyan. The attitude alone will speak volumes about this 1st Defendant’s intent and endeavours of saving his and his family members’ skin off the dangers of Civil and Criminal actions by the parties who has already purchased the said properties. Since then these Plaintiffs are keeping the purchasers of properties in the name of the 4th Defendant in check with the hope that the same can be cancelled after a discussion with the Defendants. b. In paragraph 16 of the Plaint, it is stated as follows: “The Plaintiffs also submit that they were never consulted by the Defendants either jointly and or separately with reference to the description of parties in all the eight Sale Deeds.” c. In paragraph 26(i) and (ii), it is states as follows: “(i) The Sale Deeds are tainted with fraud played on these Plaintiffs. It can be very clearly ascertained from the acts, attitude and activities of the First Defendant from day ONE of his dealing to till today. (ii) The suit Sale Deeds are the product of misrepresentation and undue influence. The Defendants jointly and severally made the Plaintiffs to believe that the impending necessity of relieving them of the burden of the Bank loan by their pseudo sincere representation of settlement with the Bank and thereby non-payment of the said Bank dues used their advantage on the Plaintiffs to unduly influence the Plaintiffs to execute the Sale Deeds of the Suit and other properties.” d. Para 26(iv) and (v) of the Plaint are usefully extracted hereunder: “(iv) The Plaintiffs are the victim of the fraud played on them by the 1st Defendant and other Defendants and their family members premeditated and veil knitted plan to cheat to the core, of the Plaintiffs, of their property. The Sudden change from the deed of Irrevocable Power of Attorney to the Sale Deeds by making the Sub-Registrar and the document writer to make misrepresentation of no such documents, and location of situation of the Plaintiffs of their family disputes to the fore front and the drawing the faith of the Plaintiffs by issuing the cheque to the 5th Plaintiff. (v) the acts of commissions and omissions on the part of the 1st Defendant and his co-purchasers and family members disentitles them the right to Suit and other properties.” 19. The said averments made in the Plaint cannot be brushed aside even at the inception. It requires a detailed consideration and the same is possible only at the time of trial where the parties can let in evidence. That apart, in order to appreciate and to consider whether the Plaint has to be rejected or not, the averments made in the Plaint alone shall be taken into consideration and not the defence. The above extracted portion will amply make it clear that the Plaint cannot be thrown out at the inception. 20. Yet another aspect that has to be seen is the Plaint could be rejected only if there is no cause of action and not if there is a lack of cause of action. The cause of action that has been stated in the Plaint in paragraph 28 is extracted hereunder: “The cause of action for the Suit arose on 8.3.2005, when the suit Sale Deeds were executed by the Plaintiffs in favour of the 1st Defendant, under duress, misrepresentation and fraud played on by the 1st Defendant on the Plaintiffs, on all other subsequent days when the notices are exchanged between the litigants herein, with reference to the suit property situate at Gudalur Village, Coimbatore North Taluk within the jurisdictions of this Honourable Court.” Thus, I am of the considered view that even assuming that there is lack of cause of action, it will not give raise to the Defendants in the Suit to seek for rejection of the Plaint. 21. 21. The Honourable Apex Court in Mayar (H.K.)Ltd. and others v. Owners & Parties, Vessel M.V. Fortune Express and others, 2006 (3) SCC 100 , has laid down a principle that- “So long as the Plaint discloses some cause of action which requires determination by the Court, the mere fact that in the opinion of the Judge that the Plaintiff may not succeed, cannot be a ground for rejection of the Plaint.” 22. The learned Counsel appearing for the Petitioners relied on the decision in I.T.C.Limited v. Debts Recovery Appellate Tribunal and others, 1997 (3) CTC 746 (SC) : 1998 (2) SCC 70 , wherein paragraphs 16 and 27, which was emphasized by the learned Senior Counsel appearing for the Petitioners is extracted hereunder: “16. The question is whether a real cause of action has been set out in the Plaint or something purely illusory has been stated with a view to get out of Order 7, Rule 11, C.P.C. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the Plaint. 27. As stated above, non-movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a Plaintiff to use the word “fraud” in the Plaint and get over any objections that may be raised by way of filing an Application under Order 7, rule 11, C.P.C. As pointed out by Krishna Iyer, Judge in T. Arivandandam Case, the ritual of repeating a word or creation of an illusion in the Plaint can certainly be untraveled and exposed by the Court will dealing with an Application under Order 7, Rule 11(a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on “fraud”, the Bank cannot take shelter under the words “fraud” or “misrepresentation” used in the Plaint.” No doubt, the Honourable Apex Court has held that a clever drafting creating illusions of cause of action are not permitted in law. However, in the case on hand, the averments in the Plaint, which was extracted above will show that the Respondents herein cannot be totally non-suited. 23. However, in the case on hand, the averments in the Plaint, which was extracted above will show that the Respondents herein cannot be totally non-suited. 23. The other decision that has been relied on by the learned Counsel appearing for the Petitioners is reported in Saleem Bhai and others v. State of Maharastra and Others, 2003(1) SCC 557 . That is a case where the Trail Court’s direction to the Defendant to file the Written Statement without deciding his Application under Order 7, Rule 11, was deprecated. In such circumstances, the Honourable Apex Court has held that the same is impermissible. However, the Honourable Apex Court in the same decision has held that – “Germane facts for deciding such an Application are the averments in the Plaint and not the pleas taken in the Written Statement.” 24. In view of the above facts and circumstances, I am of the considered view that the Court below has rightly rejected the Application preferred by the Petitioners under Order 7, Rule 11 of the Code of Civil Procedure and I do not find any illegality or infirmity in the said order. 25. In fine, the Civil Revision Petition stands dismissed. No costs. I make it very clear that the opinion expressed by the Court below or by me in this Revision are only for the purpose of disposing the Application made under Order 7, Rule 11 at the instance of the Petitioners and the Suit shall be disposed off uninfluenced by the orders referred to above.