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2011 DIGILAW 3783 (MAD)

I. Mahendra Kumar Nahar v. E. Ravindran

2011-08-23

K.VENKATARAMAN

body2011
JUDGMENT ( 1. ) THE present revision is laid seeking-to strike off the plaint in O.S. No. 13700 of 2010 pending on the file of the IV Assistant Judge, City Civil Court, Chennai. ( 2. ) DEFENDANTS 2 to 5 in the said suit are the petitioners; the plaintiff therein is the first respondent; and defendants 1 and 6 are respondents 2 and 3. The first respondent herein has laid the said suit against the petitioners and respondents 2 and 3 for permanent injunction restraining them from in any way interfering with his peaceful possession and enjoyment over the suit property either by dispossession, threat, demolition, renovation, prevention of access, disconnection of amenities or in any other manner except by due process of law. ( 3. ) THE said suit, on such prayer, is sought to be struck off by the petitioners herein, as stated already, they are defendants 2 to 5 in the said suit. THE reasons set out in this revision are: (a) THE first respondent has already laid the suit in O.S. No. 4360 of 2009 against the second respondent herein, who has been arrayed as the sole defendant in the said suit, for a permanent injunction, restraining him from evicting the first respondent herein from the suit property in any way except by due process of law. (b) Later, the first respondent herein has filed the suit in O.S. No. 5097 of 2009 against the second respondent herein, the petitioners herein as well as one K. Venkataraman, who has been arrayed as the second defendant in the said suit. THE relief that has been sought for is that of the same in O.S. No. 4360 of 2009, the first suit initiated by the first respondent herein. (c) Later, the first respondent has filed the suit in O.S. No. 13700 of 2010. THE relief is same. ( 4. ) IT is contended by Mr. S. Vijayakumar, learned counsel appearing for the petitioners that when already more or less a same relief has been sought for in the earlier suits, the present suit is a clear abuse of process of law. That apart, it was contended that the petitioners have already been made as parties in the earlier suit and hence, the present suit is a clear abuse of process of law. That apart, it was contended that the petitioners have already been made as parties in the earlier suit and hence, the present suit is a clear abuse of process of law. Learned counsel appearing for the petitioners further drawn my attention to the pleadings in all the three suits to substantiate his contention that the claim in all the suits are one and the same. ( 5. ) ON the other hand, Mr. P. Wilson, learned senior counsel appearing for the first respondent contended that the first suit in O.S. No. 4360 of 2009 filed against the second respondent herein was necessitated in view of the threat made to him on 1.6.2009 and hence, the first respondent has laid the suit only against the second respondent herein. Later, the petitioners herein as well as the second respondent herein, who was the first defendant in the earlier suit and another party has interfered with the possession of the first respondent herein and hence, the necessity arose for filing the second suit in O.S. No. 5097 of 2009. Subsequently, the sixth defendant in the last suit in O.S. No. 13700 of 2010, viz., T.M.B. Anwar Ali tried not only to interfere with his possession along with the petitioners herein, but also tried to demolish a part of the Eastern side portion of the suit property on 11.11.2010 and the first respondent herein made a complaint to the police and thereafter has laid the said suit not only for permanent injunction restraining the defendants in the said suit from interfering with his peaceful possession and enjoyment over the suit property, but also for dispossession, threat, demolition, renovation, prevention of access, disconnection of amenities or in any other manner except by due process of law. Hence, according to the learned senior counsel appearing for the first respondent, the cause of action in all the three suits are different, some of the parties are also different and hence, the third suit filed by the first respondent herein cannot be said to be an abuse of process of law. ( 6. ) I have heard Mr. S. Vijayakumar, learned counsel appearing for the petitioners and Mr. P. Wilson, learned senior counsel for Mr. P.G. Thiagu, learned counsel for the first respondent. ( 6. ) I have heard Mr. S. Vijayakumar, learned counsel appearing for the petitioners and Mr. P. Wilson, learned senior counsel for Mr. P.G. Thiagu, learned counsel for the first respondent. The facts narrated above would disclose that the cause of action for the first respondent herein to file the suit in O.S. No. 4360 of 2009 was that the second respondent herein, who was the sole defendant in the said suit, brought some persons and threatened him and his employees. In view of the said fact, the first suit has been filed. While going through the plaint, I find, though, in Paragraph No. 8 of the plaint therein, it was stated that the defendant on 1.6.2009 brought some persons and threatened the first respondent herein and his employees, there is no cause of action paragraph in the said suit. Nevertheless, the incident that has taken place on 1.6.2009 could be taken as the cause of action. ( 7. ) IN the second suit in O.S. No. 5097 of 2009, the petitioner not only added S. Sundaresan, the second respondent herein as the sold defendant in the first suit, but also made the petitioners herein as defendants 3 to 6. Yet another person has been arrayed as the second defendant in the said suit. The cause of action pleaded in the said suit has been extracted as hereunder: "(11.) The cause of action for the suit arose during 1992, when the plaintiff became a tenant initially and on 8.5.2004 when the first defendant entered into an Agreement with the plaintiff in respect of the premises; on 29.5.2009 when the first defendant sent his men and agents and disturbed the possession and enjoyment of the suit premises and when the plaintiff preferred a complaint; on 4.6.2009 when the plaintiff filed the suit in O.S. No. 4360 of 2009 and obtained an interim injunction; on various dates when the suit posted for hearing; on 10.6.2009 and various dates subsequently when the plaintiff was threatened over phone by persons claiming interest with the first defendant; on 20.6.2009 when the plaintiff preferred a complaint and the INspector of Police registered an F.I.R. and subsequently within the jurisdiction of this Hon?ble Court." ( 8. ) THE more particular cause of action for laying the said suit was emphasised in Paragraph No. 11 of the plaint, wherein, it was stated that on 10.6.2009 and on various dates, the first respondent herein was threatened over phone by persons claiming interest with the first defendant/second respondent herein and therefore, on 20.6.2009, the first respondent herein has preferred a complaint before the Inspector of Police. The cause of action for the third suit in O.S. No. 13700 of 2010 is set out hereunder: "(13.) The cause of action arose at Chennai where the suit property is situated, during the year 1992 when the plaintiff became a tenant in the suit property, on when the plaintiff has been doing the business of car accessories in the name and style of Vijay Chandras and Car-O-Drome in the suit property as a statutory tenant, by paying necessary taxes and charges, on 8.5.2004, when the Lease deed was renewed in favour of the plaintiff, on when the plaintiff spent a huge amount to develop and maintain the suit property. On 30.5.2009 and 1.6.2009, when the plaintiffs peaceful possession of the suit property was disturbed by men of 1st defendant, on when a Suit in O.S. No. 4360 of 2009, was filed by the plaintiff against the 1st defendant and obtained an order of injunction dated 4.6.2009, on various dates when the plaintiff was threatened by the defendants 2 to 5, on when a Suit in O.S. No. 7859 of 2009, on the file of IV Assistant Judge, City Civil Court, Chennai, filed by the 6th defendant and others against the defendants 2 to 5 herein, for the relief of declaration, on 11.11.2010 when a group of hooligans came to the suit property and demolished a part of Eastern side portion of the suit building and tried to do renovation works, on when a police complaint was lodged and CSR was obtained by the plaintiff, on 15.11.2010, when the plaintiff sent a Telegram to various Police Officials and on when the defendants are trying to disposes the plaintiff without due process of law and subsequently;" ( 9. ) THE cause of action set out in the second suit is also set out as cause of action in the last suit. However, the suit filed by the sixth defendant in the last suit was also mentioned as cause of action in the last suit. ) THE cause of action set out in the second suit is also set out as cause of action in the last suit. However, the suit filed by the sixth defendant in the last suit was also mentioned as cause of action in the last suit. That apart, it was stated that on 11.11.2010 a group of hooligans came to the suit property and demolished a part of Eastern side portion of the suit property and the first respondent has lodged a police complaint and thereafter, has filed the suit. ( 10. ) IN the last suit, though, the sixth defendant therein, viz., T.M.B.Anwar Ali was made as a party, in the entire body of the plaint, nothing has been said particularly about him. IN paragraph No. 11 of the plaint, it was stated that on 11.11.2010, a group of hooligans sent by defendants 2 to 5 viz., the petitioners herein came to the suit property and demolished a part of Eastern side portion of the suit building and started constructing/renovating. Even in this paragraph, nothing has been stated about the sixth defendant - T.M.B. Anwar Ali. More so, even in the cause of action, nothing has been said against the sixth defendant, except saying that the sixth defendant has filed the suit in O.S. No. 7859 of 2009 on the file of IV Assistant Judge, City Civil Court, Chennai. Thus, I am of the considered view that the adding of sixth, defendant in the said suit, without referring about his part in trying to throw the first respondent/plaintiff out of the premises may not give a cause of action to the first respondent to lay the last suit. ( 11. ) HOWEVER, learned senior counsel appearing for the first respondent drawn my attention to Paragraph No. 12 of the plaint in the last suit and contended that there is a reference about the sixth defendant in the said portion of the plaint. In order to appreciate his contention, it would be useful to extract Paragraph No. 12 of the plaint in the last suit, which reads as follows: "(12.) The plaintiff understand that the entire episode was schemed by all defendants herein conjointly and all have acted in unison with the common object of evicting the plaintiff through unlawful means. The plaintiff is a statutory tenant and he is entitled to be protected by the Tenancy laws. The plaintiff is a statutory tenant and he is entitled to be protected by the Tenancy laws. Unless the plaintiff - secures - Decree against the defendants herein and their men and agents, the defendants would succeed in disposing the due process of law for eviction. The defendants are the persons of support. The plaintiff is a law abiding citizen, have no power to fight the atrocities of the defendants herein, except the justice to be mentioned by the Hon?ble Court. Hence the suit." ( 12. ) THE said passage in the plaint first do not disclose, in my considered opinion, about the sixth defendant in the said suit, viz., T.M.B. Anwar Ali. THEre is a statement in general about the defendants and nothing particular about the sixth defendant in the said suit. In view of the above reasoning, I am of the considered view that even assuming certain allegations have been made against the sixth defendant in the said suit, viz., T.M.B. Anwar Ali, in view of the certain cause of action that has arisen subsequent to the earlier suit it will not make the first respondent herein to file the last suit in O.S. No. 13700 of 2010. The reason being that since the petitioners are already arrayed as defendants 3 to 6 in the second suit in O.S. No. 5097 of 2009, the first respondent herein could have made the said T.M.B. Anwar Ali, sixth defendant in the last suit as one of the defendant in the second suit by filing an application for impleading and the first respondent herein could have solved the matter easily. That apart, the first respondent could have filed an application under Order 6 Rule 17 C.P.C. to amend the pleadings, if the first respondent seeks to include some more relief in the second suit itself. ( 13. ) TO this, learned senior counsel appearing for the first respondent contended in order to avoid filing an application to implead and filing an application for amendment under Order 6 Rule 17 C.P.C., the first respondent herein thought it fit to file the subsequent suit to claim a comprehensive relief against all the defendants. ( 14. ( 13. ) TO this, learned senior counsel appearing for the first respondent contended in order to avoid filing an application to implead and filing an application for amendment under Order 6 Rule 17 C.P.C., the first respondent herein thought it fit to file the subsequent suit to claim a comprehensive relief against all the defendants. ( 14. ) HOWEVER, I am of the considered view that even assuming that the first respondent intended to file a comprehensive suit for a larger relief against all the defendants, the first suit in O.S. No. 4360 of 2009 or the second suit in O.S. No. 5097 of 2009 or both the suits could have been withdrawn by the first respondent and could have maintained the last suit. The first respondent has not chosen to take the said path. When the order is so dictated, at that point of time, learned senior counsel appearing for the first respondent made an attempt by submitting that the two suits filed earlier will be withdrawn. However, I am of the considered view that at this stage, a statement made across the bar by the learned senior counsel cannot be taken as face value and it is open to the first respondent herein to withdraw the said suits. However, as along as the said suits are still on file, I am of the considered view that the present suit filed by the first respondent can be considered only as a clear case of abuse of process of law. ( 15. ) LEARNED senior counsel appearing for the first respondent submitted that even if there is no cause of action, the suit cannot be thrown out at the threshold. In this connection, learned senior Counsel appearing for the first respondent drawn my attention to the judgment of this Court in J. Lili Jabakani and Others v. T.A. Chandrasekhar 2006 (5) CTC 848 : LNIND 2006 Mad 2652 . The said decision arises out of an order made by the Trial Court under Order 7 Rule 11 C.P.C. While deciding the revision, this Court has held that the plaint cannot be rejected on the ground that the plaintiff has no cause of action and there is a distinction between the plea that there was no cause of action and the plea that the plaint does not disclose cause of action. However, I am of the considered view that the judgment may not be applicable to the facts of the present case. Since, though, learned counsel for the petitioners made a statement that there is no cause of action for the first respondent to lay the said suit, he was more harboring on the ground of abuse of process of law rather than there is no cause of action for the first respondent to institute the third suit. ( 16. ) THE next judgment that has been relied upon by the learned senior counsel appearing for the first respondent was in R.S. Senthamaraikannan and Another v. Presiding Officer, Debts Recovery Tribunal for Tamil Nadu Kerala and Pondy 1997 (2) CTC 695 : LNIND 1997 Mad 579 : (1997) 2 MLJ 394 . In the said decision, this Court has held that cause of action means bundle of essential facts which is necessary for plaintiff to prove before he can succeed in case. It can as well be said to be the media upon which the Court arrives at a conclusion in the suit in favour of the plaintiff. Even the said judgment may not be applicable to the facts of the present case, since, in the present case, much has been said on the ground of abuse of process of law rather than on the ground of no cause of action for the first respondent to lay the third suit. The discussions made above will amply establish that the first respondent herein was filing suits after suits invoking the cause of action, which is arising day by day. Even if some cause of action has arisen after filing of the suit, as stated already, the first respondent herein could have filed an application for necessary amendment in that regard and even if the third parties try to interfere with his possession after filing of the suit, the first respondent could have impleaded the said person as a party to the earlier suit. In fact, it is brought to the notice of this Court by the learned counsel appearing for the petitioners that even in the first suit, the petitioners have been made as parties. In view of the discussions made above, I am of the considered view that the filing of the third suit in O.S. No. 13700 of 2010 is a clear abuse of process of law. ( 17. In view of the discussions made above, I am of the considered view that the filing of the third suit in O.S. No. 13700 of 2010 is a clear abuse of process of law. ( 17. ) IN fine, the prayer that has been sought for by the petitioners has to be acceded to and accordingly, the revision stands allowed. Consequently, connected M.P. Nos. 1 and 2 of 2011 are closed. However, there is no order as to costs. ( 18. ) AT this juncture, learned senior counsel appearing for the petitioners seeks permission of this Court to file necessary application seeking necessary relief before the trial Court. It is needless to say that if the first respondent is entitled to file such application in accordance with law, he is always at liberty to do so. AT the same time, the petitioners are at liberty to raise their objections with regard to the application, if any, filed by the first respondent in accordance with law. Learned senior counsel appearing for the first respondent further submitted that since there was an order of injunction in favour of the first respondent in the third suit, the said order shall be protected. However, learned counsel appearing for the petitioners submitted that there is already an order of injunction in the first suit in O.S. No. 4360 of 2009 against the second respondent herein and the first respondent could file an application to implead the petitioners as respondents in the said Suit or he can take out an independent application for injunction. I am of the considered view that since the first respondent herein can do so, there need be no further order here.