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2011 DIGILAW 4160 (MAD)

Gurumurthy v. Muthu Narayanan

2011-09-29

K.VENKATARAMAN

body2011
JUDGMENT :- 1. The present civil revision petition is directed against the order of the learned Principal District Munsif, Puducherry dated 6.8.2010 made in I.A.No.728 of 2010 in O.S.No.1250 of 2008. 2. The plaintiffs in the above referred suit are the petitioners herein and the defendant thereon is the respondent. 3. The petitioners herein have laid the above said suit against the respondent for permanent injunction restraining him from interfering with their peaceful possession and enjoyment over the suit property. 4. The claim of the petitioners in the plaint, in nutshell, is set out here under:- The petitioners' family and their ancestors have been in possession and enjoyment of the suit property continuously for a period of more than 70 years, adverse to the right and interest of the true owner one Vengatasubba Reddiar and his legal heirs. The respondent herein without having any right or title over the suit property, with ulterior motive, started to disturb the petitioners' possession and enjoyment over the same. Hence, the said suit has been laid. 5. In the said suit, the respondent herein has filed an application in I.A.No.728 of 2010 for rejecting the plaint under VII Rule 11 C.P.C. The claim of the respondent in the said application was that -- (a) the suit for bare injunction is not maintainable without a prayer for declaration of title. The entire plaint all along in each and every paragraphs would only be aiming at a dispute in the title to the suit property and therefore, in such circumstances, the plaint ought to have been framed with a prayer for declaration of title and thereupon valuation ought to have been done in accordance with law on the market value of the property and court fee ought to have been paid accordingly. Therefore, the suit itself is liable to be rejected for want of a prayer for declaration and for want of payment of court fee. (b) By virtue of the provisions of Order 2 Rule 2 C.P.C., the plaint becomes one bad for want of cause of action and therefore, the petitioners herein cannot continue the suit. (c) In paragraph 8 of the plaint, the petitioners have clearly spelled out that they are enjoying the suit property hostile to the owner. Hence, in such circumstances, the suit for bare injunction alone is not maintainable. 6. (c) In paragraph 8 of the plaint, the petitioners have clearly spelled out that they are enjoying the suit property hostile to the owner. Hence, in such circumstances, the suit for bare injunction alone is not maintainable. 6. A detailed counter affidavit has been filed by the petitioners herein denying the various allegations made by the respondent in the said application. 7. Considering the rival contentions, the learned trial Judge felt that the petitioners herein should have laid the suit for declaration of title and for injunction and they should have valued the suit property accordingly. Finally, it has held that the petitioners herein have to take necessary steps to amend the plaint correctly so as to include the relief of declaration of their title over the suit property and to file the valuation certificate of the suit property and if not, the plaint will be rejected. As stated already, challenging the same, the present civil revision petition is filed. 8. I have heard the learned counsel appearing for the petitioners and the learned Senior Counsel appearing for the respondent. 9. The suit has been filed by the petitioners against the respondent for a bare injunction restraining him from interfering with their peaceful possession and enjoyment over the suit property. Their claim in the suit was that the suit property originally belong to one Vengatasubba Reddiar. The petitioners and their ancestors have been in possession and enjoyment over the same and they have also perfected title by adverse possession. In such circumstances, the respondent, who is having no right or title over the suit property, all of a sudden, with ulterior motive, started giving disturbance to their possession and enjoyment over the suit property and hence, the suit has been filed. While so, the respondent herein has filed an application under Order VII Rule 11 C.P.C. to reject the plaint. 10. The plaint could be rejected under Order VII Rule 11 C.P.C. only on three circumstances, viz., (a) if there is no cause of action; (b) if the suit has not been properly valued and the Court fee has not been paid inspite of the directions of the Court; and (c) if it is barred by any law. 10. The plaint could be rejected under Order VII Rule 11 C.P.C. only on three circumstances, viz., (a) if there is no cause of action; (b) if the suit has not been properly valued and the Court fee has not been paid inspite of the directions of the Court; and (c) if it is barred by any law. In the case on hand, it is the case of the respondent that since the petitioners have not laid the suit for declaration and the said suit has been laid for a mere injunction, the suit is liable to be rejected. The Court below felt that the petitioners should have sought for the prayer for declaration and further felt that mere suit for permanent injunction will not lie. However, I am of the considered view that the said contention raised by the respondent as well as the finding by the learned trial Judge is absolutely untenable. The plaintiff in a suit is a dominus litus, who can decide, who has to be impleaded in the suit and what relief he has to ask for and it is not for the defendant in a suit to instruct the plaintiff to mould the relief. Even assuming if the plaintiff in a suit did not seek for a relief which he should have made, the ultimate sufferer would be only the plaintiff in a suit and not the defendant. When the plaintiff is taking such risk, neither the defendant in a suit nor the trial Court can compel the plaintiff to mould the relief or add a relief. 11. The further claim of the respondent was that by virtue of the provision under Order 2 Rule 2 C.P.C., the plaint becomes one for want of cause of action. The trial Court also felt so. However, I am unable to accept the said contention raised on behalf of the respondent. In this connection, Order 2 Rule 2 C.P.C. is usefully extracted here under:- "2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but, a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but, a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs:- Aperson entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Order 2 Rule 2 (1) C.P.C. contemplates that the plaintiff in every suit shall include the whole of the claim. But, however, he may relinquish any portion of the claim in order to bring the suit within the jurisdiction of any Court. However, when the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of the claim, he cannot afterwards sue in respect of the same. However, if one relief is sought for, he can seek for other relief only with the leave of the Court. 12. The said provision, therefore contemplates that the plaintiff has to file a suit for all reliefs, he can relinquish a part of the claim and with the leave of the Court, he can seek for inclusion of other reliefs later. In the case on hand, even assuming that the petitioners have to file a suit for declaration also while seeking for permanent injunction, at best, it could be contended when he files a later suit for other reliefs. In the case on hand, the petitioners have filed the suit for permanent injunction and if they want to file a suit for declaration later, at that point of time, the respondent can raise a plea that the second suit is hit by Order 2 Rule 2 C.P.C. In the case on hand, the petitioners are conscious of the fact that they are seeking the relief of only permanent injunction. Hence, I am of the considered view that the claim of the respondent that by virtue of the provisions of Order 2 Rule 2 C.P.C., the plaint becomes one bad for want of cause of action cannot be accepted. The learned trial Judge also went wrong in accepting the said contention. 13. The payment of court fee always depends upon the pleadings in a plaint and not on the basis of the defence in the written statement. In the case on hand, as stated already, the petitioners have claimed the relief of permanent injunction alone. The suit has been valued on such relief. While so, the Court below went wrong in holding that the petitioners should have asked for declaration and court fee has to be paid on the basis of the said relief also. 14. As stated already, plaint could be rejected only if there is no cause of action which is not the position of the present case. The ground of under valuation of the property and payment of Court fee accordingly may not arise in the present case. The suit has been filed only for permanent injunction and it has been valued for such relief and the court fee has been paid thereon. Hence, on this count also, I am of the considered view that the learned trial Judge went wrong in directing the petitioners to include the prayer for declaration of title and also directing them to file the valuation certificate of the suit property. 15. In 2011 (1) CTC 708 – V.Sowrirajan vs. Dhanam, this Court has held that when a suit has been filed by the plaintiff for possession of the property and also claimed that he was in possession of the property for more than 12 years, there is no need for the plaintiff to pray for declaration of title. Payment of court fee on the market value as per Section 27(a)(ii) will arise only if there is a pleading in the plaint that the defendant denied the title of the plaintiff to the suit property. Further, it has been held that the same can be decided after statement is filed and issue is framed. Thus, the order of the trial Judge thereon in rejecting the application under Order VII Rule 11 C.P.C. on the said score was upheld in the said decision. Further, it has been held that the same can be decided after statement is filed and issue is framed. Thus, the order of the trial Judge thereon in rejecting the application under Order VII Rule 11 C.P.C. on the said score was upheld in the said decision. The said decision is squarely applicable to the facts of the present case. 16. Learned Senior Counsel appearing for the respondent relied on the decision reported in (2005) 10 Supreme Court Cases 760 – Church of North India vs. Lavajibhai Ratanjibhai and others and contended that the averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety and the Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. If the said principal enunciated by the Hon'ble Apex Court is taken into consideration, according to the learned Senior Counsel appearing for the respondent, the present suit filed by the petitioners has to be rejected under Order VII Rule 11 C.P.C. However, I am of the considered view that the Hon'ble Apex Court while dealing with the ouster of jurisdiction of a civil Court, has held that the averments made in the plaint have to be read in toto without considering the relief alone. Paragraphs 38 and 39 of the said judgment are usefully extracted here under:- "38. The question as regards ouster of a jurisdiction of a civil court must be construed having regard to the scheme of the Act as also the object and purport it seeks to achieve. The law in this regard is no longer res integra. 39. A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. The court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7 Rule 11 of the code of Civil Procedure." 17. Yet another decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in 2009-2-L.W. 546 – Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs and Ors. In the said decision, the Hon'ble Apex Court has held that when the plaintiff is in possession, but his title to the property is in dispute or is under cloud or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and for the consequential relief of injunction. The said judgment may not come to the rescue of the respondent since that is the case where an application under Order VII Rule 11 C.P.C. was filed stating that the plaintiff is not claiming the relief of declaration and claimed only the relief of permanent injunction. That is the case where the matter came before the Hon'ble Apex Court after full-fledged trial. That apart, even in the said judgment, it has been clearly held that when the plaintiff is in lawful or peaceful possession of the property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. Hence, only at the time of trial, it has to be seen whether the plaintiff has got a right or title over the suit property or not. 18. Even in the judgment relied on by the learned Senior Counsel appearing for the respondent, which is reported in(2004) 3 Supreme Court Cases 137 – Sopan Sukhdeo Sable and others vs. Assistant Charity Commissioner and others, the Hon'ble Apex Court has held that for the purpose of deciding an application under Order VII Rule 11 C.P.C., the averments in the plaint are germane and the pleas taken in the written statement would be wholly irrelevant at that stage. 19. 19. The decision reported in (2005) 5 Supreme Court Cases 548 – N.V.Srinivasa Murthy and others vs. Mariyamma (dead) by proposed LRs and others, which was relied on by the learned Senior Counsel appearing for the respondent, is the case where the Hon'ble Apex Court has held that when a claim for declaration or claim for specific performance is not made which ought to have been claimed, a subsequent suit for such reliefs was barred under Order 2 Rule 2 C.P.C. I am afraid that the said proposition may not be of any use to the respondent since the petitioners have not laid the suit originally for permanent injunction and later they want to seek the relief of declaration. 20. The judgment relied on by the learned Senior Counsel appearing for the respondent which is reported in (2006) 3 Supreme Court Cases 100 – Mayar (H.K.) Ltd., and others vs. Owners & Parties, Vessel M.V.Fortune Express and others, on facts, may not be applicable to the facts of the present case since the question of jurisdiction came in for consideration in the said decision. 21. Yet another decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in (2004) 3 Supreme Court Cases 172 – Pearlite Liners (P) Ltd., vs. Manorama Srisi. That is the case where the plaintiff has sought for declaration that he continues to be in service with the employer. In those circumstances, the Hon'ble Apex Court has held that an employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two. A contract of personal service cannot be specifically enforced and a court will not give a declaration that the contract subsists and the employee continues to be in service against the will and consent of the employer. Under those circumstances, the Hon'ble Apex Court has held that such suit has to be thrown out at the threshold. The said judgment, in my considered view, may not applicable to the facts of the present case. 22. In the decision reported in (1980) 1 Supreme Court Cases 616 - Meenakshisundaram Chettiar vs. Venkatachalam Chettiar, which was relied on by the learned counsel appearing for the respondent, it has been held that the plaint is liable to be rejected in case of deliberate under valuation. 22. In the decision reported in (1980) 1 Supreme Court Cases 616 - Meenakshisundaram Chettiar vs. Venkatachalam Chettiar, which was relied on by the learned counsel appearing for the respondent, it has been held that the plaint is liable to be rejected in case of deliberate under valuation. In the case on hand, as I have already held, since the claim of the petitioners is only for permanent injunction, they valued the suit for such relief. Hence, the said judgment also may not come to the rescue of the respondent. 23. The other decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in (2002) 10 Supreme Court Cases 501 – A.P.Foam Pvt. Ltd., vs. Subhash Chandra and others. In the said decision, the Hon'ble Apex Court has held that a rejection of the plaint was justified where the litigation was utterly vexatious and an abuse of process of court. In the said decision, after 40 years, the plaintiff has filed the suit challenging the sale deed executed by the predecessor of the plaintiff. In those circumstances, the Hon'ble Apex Court has held that rejection of the plaint was justified. The facts therein cannot be equated with the facts of the present case. 24. Considering the discussions made above, I am of the considered view that the learned Principal District Munsif, Puducherry was not justified in directing the petitioners to seek for a prayer of declaration and also directing the petitioners to file valuation certificate of the suit property accordingly. 25. In fine, the order of the learned Principal District Munsif, Puducherry dated 6.8.2010 made in I.A.No.728 of 2010 in O.S.No.1250 of 2008 is liable to be set aside and accordingly, set aside and the civil revision petition stands allowed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.