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2011 DIGILAW 3727 (MAD)

Veerappan v. Ramamoorthy

2011-08-18

P.P.S.JANARTHANA RAJA

body2011
JUDGMENT ( 1. ) THE Civil Revision Petition has been filed against the fair and executable order passed in I.A.No.974 of 2004 in O.S.No.411 of 2004 dated 09.01.2007 on the file of the District Munsif Court, Aruppukottai. ( 2. ) THE petitioner herein is the plaintiff and the respondents herein are the defendants in the suit. THE petitioner/plaintiff filed a suit in O.S.No.411 of 2004 before the District Munsif Court, Aruppukottai for permanent injunction restraining the respondents/defendants from interfering with the petitioner's peaceful possession of the suit properties and also restraining the defendants from selling, mortgaging or otherwise deal with the suit properties. Subsequently, the respondents/ defendants filed I.A. No.974 of 2004 for rejecting the plaint. THE petitioner/ plaintiff also filed counter to the said I.A. denying all the allegations made therein and also stating that the I.A. is devoid of merits and hence the same should be dismissed. After hearing the arguments advanced on both the sides, the Trial Court allowed the I.A. and rejected the plaint on the ground that the same is covered by the principles of res judicata. Aggrieved over the same, the present Civil Revision Petition has been filed by the petitioner herein/plaintiff. Learned counsel for the petitioner/plaintiff vehemently contended that the Trial Court is wrong in rejecting the plaint under Order 7 Rule 11 of CPC. She further contended that the Trial Court has failed to note that the principles of res judicata will not apply to this case and that the plaintiff-Sengammal in the earlier suit in O.S.No.83 of 1995 is not a party to the present suit. Further it is contended that the earlier suit in O.S.No.83 of 1995 was filed by the plaintiff-Sengammal for partition and the subsequent present suit in O.S.No.411 of 2004 is filed by the petitioner herein is for permanent injunction and the parties are not the same and the reliefs are also not the same. She further stated that the third item of the suit properties is not the subject matter in the earlier suit. Therefore, the suit properties are also not the same. Therefore, according to the learned counsel for the petitioner, the Trial Court ought not to have allowed the I.A. The Trial Court has also exceeded its jurisdiction and hence this Court can interfere under Article 227 of the Constitution of India. Therefore, the suit properties are also not the same. Therefore, according to the learned counsel for the petitioner, the Trial Court ought not to have allowed the I.A. The Trial Court has also exceeded its jurisdiction and hence this Court can interfere under Article 227 of the Constitution of India. Further it is contended by the learned counsel for the petitioner that the Trial Court has not understood the scope of the principles of res judicata and relied on the following judgments of this Court in support of her proposition:- a) Nakkheeran Publications v. Dhyanapeeta Charitable Trust ( 2010 (5) CTC 318 ); b) N.Ravindran v. V.Ramachandran ( 2011 (3) CTC 153 ) and c) Ootacamund Club v. H.S.Mehta ( (2010) 1 MLJ 229 ). Relying on the above judgments of this Court, the learned counsel for the petitioner has submitted that the impugned order passed by the Trial Court is not in accordance with law and hence the same should be set aside. ( 3. ) LEARNED counsel for the first respondent / first defendant has submitted that the Trial Court has correctly rejected the plaint and the rejection of a plaint would amount to decree as per the definition of Section 2(2) of CPC. The only remedy available against the same is to file an appeal under Section 96 of CPC, to the District Court. The filing of the present Civil Revision Petition is not maintainable since there is remedy available under the CPC, and hence the same should be dismissed. He relied on the following judgments in support of his proposition:- a) Paruchuru Thirumala Satyanarayanacharyulu and another v. Vannava Ramalingam and others (A.I.R. (39) 1952 MADRAS 86); b) Nesammal v. Edward ( 1998 (III) CTC 165 ); c) R.S.Pillai v. R.K.Ambalam (AIR 1976 MADRAS 289); d) The Governing Council of American College v. Dr.M.Davamani Christober ( 2010 (3) CTC 604 ) and e) Mohammed Kani Rowther v. Hassan Rowther Bulghese Beevi and another (AIR 1972 KERALA 56). ( 4. ) HEARD the counsel and perused the documents on record. The primary issue raised by the counsel for the first respondent is that the present CRP is not maintainable and the petitioner/plaintiff ought to have filed an appeal under Section 96 of CPC. He relied on Section 2(2) of CPC which deals with definition of decree and the same reads as under:- 2. The primary issue raised by the counsel for the first respondent is that the present CRP is not maintainable and the petitioner/plaintiff ought to have filed an appeal under Section 96 of CPC. He relied on Section 2(2) of CPC which deals with definition of decree and the same reads as under:- 2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- (1) ... (2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Therefore, it is contended that the rejection of a plaint is deemed to be a decree as per the above provision. So the petitioner ought to have filed an appeal to the Appellate Authority instead of filing the present CRP under Article 227 of the Constitution of India. (i) In the case of Paruchuru Thirumala Satyanarayanacharyulu and another v. Vannava Ramalingam and others (A.I.R. (39) 1952 MADRAS 86), a Full Bench of this Court held that under Section 2(2) of CPC, the order rejecting a plaint would be deemed to be a decree. It has been further held that it is open to the parties to file a regular appeal against that order and the Revision Petition is not maintainable. (ii) In the case of Nesammal v. Edward ( 1998 (III) CTC 165 ), the learned Single Judge of this Court considered the issue with regard to rejection of a plaint and held in paragraph-12 as under:- 12. The revision is also not maintainable since the order rejecting the plaint is a decree under the Code of Civil Procedure. Even if the plaint is rejected on some other grounds not covered by Order 7 Rule 11 Code of Civil Procedure, the remedy is only an appeal under Section 96 of Code of Civil Procedure. The same is so declared in the decision reported in R.Shanmughavelu Pillai v. R.Karuppannan Ambalam, AIR 1976 Mad. 289 . Even if the plaint is rejected on some other grounds not covered by Order 7 Rule 11 Code of Civil Procedure, the remedy is only an appeal under Section 96 of Code of Civil Procedure. The same is so declared in the decision reported in R.Shanmughavelu Pillai v. R.Karuppannan Ambalam, AIR 1976 Mad. 289 . In either way the revision is misconceived and the same is dismissed. No costs. Consequently, the C.M.P.1644 of 1988 is closed. From a reading of the above, it is clear that the revision is not maintainable since the rejection of the plaint is a decree under the Code of Civil Procedure, and even if the plaint is rejected on some other grounds, the remedy is only an appeal under Section 96 of CPC. In the above judgment, the learned single Judge has also relied on the decision of this Court in the case of R.S.Pillai v. R.K.Ambalam (AIR 1976 MADRAS 289), wherein, it has been held in paragraph-7 as under:- 7.Mr.Venkataraman, the counsel appearing for the respondent cited Satyanarayanacharlu v. Ramalingam, 1951-2 Mad LJ 74 = ( AIR 1952 Mad 86 ) (FB) wherein it has been held: Where an order directing payment of additional court-fee in a suit is not complied with and it is followed by an order rejecting the plaint, a revision against the later order would not be maintainable and the proper remedy is only by way of an appeal against the decree. Another case cited by Mr.Venkataraman is Harihar Bakhsh Singh v. Jagannath Singh (AIR 1924 Oudh 413). A Bench of the Oudh Court has held:- On behalf of the appellant it is contended that the only grounds on which a court is authorised to reject a plaint are those given in Order 7, Rule 11 of the Civil P.C. and that the Subordinate Judge had no jurisdiction to reject this plaint on the grounds taken by him. With this contention we are not disposed to agree. The instances given in the rule referred to cannot be regarded as exhaustive or as limiting the powers of a court under Section 151 of the same Code. With this contention we are not disposed to agree. The instances given in the rule referred to cannot be regarded as exhaustive or as limiting the powers of a court under Section 151 of the same Code. We concur in the view taken by the Madras High Court in Lakshmanam Chetty v. Lakshmanam Chettiar, (1914) 1 Mad LW 875 = 25 Ind Cas 738 = (AIR 1915 Mad 483) that a Court has jurisdiction in a proper case to dismiss a suit filed by the next friend of a minor on the ground that it is not in the interests of the minor that the suit should be allowed to go on. The cases quoted in that ruling from Simpson on the Law of Infants (pp.471 to 473) show that this is also the law in England. The next case cited by Mr.Venkataraman is Radhakishen v. Wali Md. (AIR 1956 Hyd 133), wherein also a Bench of the Hyderabad High Court has held that:- The instances given in Order 7, Rule 11 cannot be regarded as exhaustive of all the cases in which a court can reject a plaint or as limiting the inherent powers of the court in respect thereof. For the proposition that against the rejection of the plaint, only appeal lies, has been made clear in the decision reported in Lakshmanam v. Lakshmanam (AIR 1915 Mad 483) and in Badri Nath v. State of Pepsu (AIR 1957 Pepsu 14). Even reading Section 2(2), C.P.C. it does not say the rejection of the plaint under Order 7, Rule 11, C.P.C. on the other hand, it generally states that decree will include rejection of plaint. Thus it is clear both from the section and also the decisions cited above that only appeal will lie against the rejection of the plaint and it is not limited to such cases wherein the plaint was rejected for the reasons stated under Order 7, Rule 11, C.P.C. (iii) In the case of Mohammed Kani Rowther v. Hassan Rowther Bulghese Beevi and another, (AIR 1972 KERALA 56), a Full Bench of the Kerala High Court also has taken a similar view, i.e. the order of rejection of a plaint, being a decree, the proper remedy for plaintiff is an appeal and not revision. From a reading of the above judgments, it is crystal clear that the rejection of a plaint would amount to a decree and the proper remedy available is only to file an appeal under Section 96 of CPC to the appellate Court. In the present case, the petitioner/plaintiff has to file an appeal before the appellate Court under Section 96 of CPC. For the purpose of filing the appeal, liberty is given to the petitioner/plaintiff to file an appeal before the appellate Court, within a period of four weeks from the date of receipt of a copy of this order and the Appellate Court also is directed to take note of the period of pendency of the CRP before this Court for the purpose of condoning the delay. Further, the Registry is directed to return the originals to the petitioner/plaintiff to enable him to file an appeal. ( 5. ) ANOTHER argument advanced by the counsel for the first respondent is that when an efficacious remedy of appeal is available, this Court should not entertain the CRP under Article 227 of the Constitution of India and he relied on the judgment of the learned Single Judge of this Court in the case of The Governing Council of American College v. Dr.M.Davamani Christober ( 2010 (3) CTC 604 ), wherein it has been held in paragraph-26 as under:- 26. In another judgment reported in the case of GanapathySubramanian v. S.Ramalingam and 23 others, 2007(3) LW 515 , it has been held that- Article 227 of the Constitution of India confers on every High Court the power of superintendence over all Courts and Tribunals through out the territory in relation to which it exercises jurisdiction excepting any Court or Tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power, the High Court has been conferred with certain specific powers under clauses (2) and (3) of Article 227 of the Constitution. It could be seen that the power of the superintendence so conferred on the High Court is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved. The paramount consideration behind vesting such wide power of superintendence in the High Court is to clear that path of justice. Such a power of superintendence is not subject to technicalities of procedure or traditional fetters. The paramount consideration behind vesting such wide power of superintendence in the High Court is to clear that path of justice. Such a power of superintendence is not subject to technicalities of procedure or traditional fetters. That power so conferred cannot also be regarded as Appeal or revisional jurisdiction and should not be exercised in the garb or exercise of supervisory jurisdiction under Article 227 of the Constitution and hence, the Court has devised a self-imposed rule and discipline on this power. The supervisory jurisdiction can be refused to be exercised when an alternative efficacious remedy by way of defending the Suit or filing an Appeal or Revision is available to the person aggrieved. The Court shall have regard to the legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from the Appellate or Revisional jurisdiction in the hope of accelerating conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of Appeal or Revision. It is not denied that the powers conferred upon the High Court under Article 227 of the Constitution of India are extraordinary and discretionary power as distinguished from ordinary statutory power. No doubt, Article 227 of the Constitution conferred a right of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercised jurisdiction, but no corresponding right is conferred upon the litigant to invoke the jurisdiction as a matter of right. In fact, the power under Article 227 of the Constitution of India casts a duty upon the High Court to keep the inferior Courts and Tribunals within the limits of its authority and that they do not cross the limit ensuring the performance of their duties in accordance with law conferring power within the ambit of the enactment treating such Court and Tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the Subordinate Courts and Tribunals resulting in grave injustice to any party. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the Subordinate Courts and Tribunals resulting in grave injustice to any party. Therefore, it is seen from the afore-said judgments, when an effective and efficacious Appeal remedy is available to the parties, invocation of the extraordinary jurisdiction under Article 227 is not maintainable. Therefore, when a finding has been given by the Trial Court on the basis of the evidence that finding can be challenged only by invoking Appeal remedy and the same cannot be challenged under Article 227 of Constitution of India. In the case of Kokkanda B.Poondacha and others v. K.D.Ganapathi and another (2011-3-L.W.1), the Apex Court has considered the scope of Article 227 of the Constitution of India and held in paragraphs-8 and 9 as follows:- 8.We have considered the respective submissions. We shall first consider the question whether the High Court could interfere with the order of the trial Court without considering the question whether the said order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction in deciding the application of the respondents and the order passed by it has resulted in failure of justice. In Surya Dev Rai's case (supra), the two Judge Bench, after detailed analysis of the various precedents on the scope of the High Court's powers under Articles 226 and 227 of the Constitution culled out nine propositions including the following:- (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. 9. In Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra), the Court again examined the scope of the High Court's power under Article 227 of the Constitution and laid down the following proposition: Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration in the larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. In view of the above judgments also, the petitioner/plaintiff ought to have filed an appeal under the CPC instead of filing a CRP under Article 227 of the Constitution of India and therefore, this Court is of the view that the CRP filed by the petitioner is not maintainable. ( 6. ) LEARNED counsel for the petitioner/plaintiff has submitted that this Court has jurisdiction to interfere with the order of the Trial Court under Article 227 of the Constitution of India since the Trial Court has exceeded its jurisdiction, i.e. by relying on the principles of res judicata and rejecting the plaint on a threshold, and relied on the judgments stated supra. It is also contended that principle of res judicata is a mixed question of fact and law. Now we will consider the judgments relied on by the counsel for the petitioner/plaintiff one by one. (i) In the case of Nakkheeran Publications v. Dhyanapeeta Charitable Trust ( 2010 (5) CTC 318 ), this Court has held in paragraphs 18 and 22 of the judgment that only at the time of trial, it is for the party to prove the case as to whether the suit is barred by res judicata on the issue of law alone since it would be mixed question of law and facts. Therefore, the counsel for the petitioner has submitted that in the present case, the Trial Court is not correct in rejecting the plaint on the principle of res judicata, and that this Court has power to interfere with the same under Article 227 of the Constitution of India. Therefore, the counsel for the petitioner has submitted that in the present case, the Trial Court is not correct in rejecting the plaint on the principle of res judicata, and that this Court has power to interfere with the same under Article 227 of the Constitution of India. This Court is not agreeing with the contention of the learned counsel for the petitioner since in the present case, the issue is as to whether rejection of the plaint would amount to decree and right to appeal is provided under Section 96 of CPC. Therefore, the above judgment of this Court is not helpful to the petitioner when proper remedy is available under the code. (ii) In the case of N.Ravindran v. V.Ramachandran ( 2011 (3) CTC 153 ), this Court considered the scope of Order 7 Rule 11 of CPC and held that the question as to whether the plaint is barred by any law, has to be decided by looking at the averments contained in the plaint itself and not any defence set up in the written statement. LEARNED counsel for the petitioner has submitted that in the present case, the Trial Court went beyond that and hence the impugned order passed by the Trial Court is illegal. In the present case, the view taken is whether the petitioner has right to appeal since the rejection of a plaint would amount to decree. Hence this judgment also will not be helpful to the petitioner. (iii) With regard to other judgment of this Court relied on by the counsel for the petitioner in the case of Ootacamund Club v. H.S.Mehta ( (2010) 1 MLJ 229 ), the same is also not relevant to the facts of the present case and hence it will not be helpful to the petitioner. This Court is not agreeing with the arguments advanced by the counsel for the petitioner/plaintiff as the petitioner/plaintiff has to file an appeal before the appellate Court as per the above direction and raise all the objections before the appellate Court in accordance with law. In the result, this Court is of the considered view that the Civil Revision Petition is not maintainable and hence the same is dismissed. No costs.