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2012 DIGILAW 4325 (MAD)

A. Venkatasamy v. S. Lakshmi

2012-10-16

R.S.RAMANATHAN

body2012
Judgment :- 1. The Civil Revision Petition is filed to strike off the plaint in O.S.No.3 of 2012, pending on the file of the District Munsif Court, Thirukkalukundram. 2. The first respondent herein filed the above suit for setting aside the decree, dated 24.04.2009, passed by this Court in C.S.No.287 of 2009, on the ground that the compromise decree is vitiated by fraud and not binding on the first respondent/plaintiff and also to set aside the sale deed, dated 8.4.2010, executed, pursuant to the decree passed in C.S.No.287 of 2009 and for the relief of declaration that she is the absolute owner of the suit property and for permanent injunction. In that suit, it is alleged by the first respondent/plaintiff that the suit property, originally belonged to the third defendant, Mrs.Sophia Parveen and she sold the same through her power agent and husband, by name Habibur Rehman in favour of one Mr.Sanjiappa Reddy, under two sale deeds, dated 24.3.2004 and 31.5.2004 and from the said Mr.Sanjiappa Reddy, the first respondent/plaintiff purchased those properties and is in possession of the same and when there was an attempt by the revision petitioner to get patta, she made enquiries and found that the revision petitioner in collusion with the third respondent, filed C.S.No.287 of 2009, on the file of this Court for specific performance of an agreement of sale, dated 30.08.1994, wherein, a compromise decree was passed defeating the rights of the purchasers from the third respondent. Therefore, the first respondent/plaintiff filed O.S.No.3 of 2012, for the relief, as stated above. This suit is sought to be strike off by the revision petitioner in this Civil Revision Petition. 3. The learned counsel appearing for the revision petitioner submitted that the suit in C.S.No.287 of 2009, was filed by the revision petitioner against the third respondent-Sophia Parveen for specific performance of an agreement of sale, dated 30.08.1994, and for injunction and in that suit, a compromise decree was passed, on 24.04.2009. Thereafter, the defendant in that suit, viz., the third defendant in the present suit filed by the first respondent/plaintiff, did not turn up to execute the sale deed. Hence, the sale deed was executed by the Registrars of this Court in favour of the revision petitioner, on 5.4.2010. Thereafter, the defendant in that suit, viz., the third defendant in the present suit filed by the first respondent/plaintiff, did not turn up to execute the sale deed. Hence, the sale deed was executed by the Registrars of this Court in favour of the revision petitioner, on 5.4.2010. As per the compromise decree, injunction was also granted in favour of the revision petitioner and the suit, viz., O.S.No.3 of 2012, was filed by the first respondent/plaintiff, who claims to have purchased the property from one Mr.Sajiappa Reddy, who in turn purchased the property from the third respondent. Hence, the plaintiff's vendor and the plaintiff are bound by the decree passed in C.S.No.287 of 2009 and in that suit, already injunction was decreed in favour of the revision petitioner and hence, the first respondent/plaintiff is bound by the decree passed this Court and it cannot be set aside by the Munsif Court. Moreover, in C.S.No.287 of 2009, the revision petitioner has valued the suit at Rs.11,00,000/- and in the present suit, the first respondent/plaintiff valued the suit, at Rs.22.060/-and when she seeks the relief of declaration, she ought to have valued the suit as per the sale consideration and on that ground also, the District Munsif Court, Thirukkalukundram, has no pecuniary jurisdiction to decide the case. 4. The learned counsel for the revision petitioner further submitted that this case is a clear abuse of process of Court and knowing fully well that the revision petitioner got the sale deed executed in his favour by this Court on the basis of the agreement of sale, earlier to the sale in favour of the vendor of the plaintiff, the first respondent/plaintiff cannot sustain any title to the suit property and therefore, the suit is liable to be struck off. 5. The learned counsel for the revision petitioner also relied upon a judgment rendered by this Court reported in (2011) 3 C.T.C. 650 in the matter of [Tamil Nadu Housing Board, rep., by the Chairman and others Vs. Master Crafts Partnership Firm, rep., by Power Agent Suman Voora] in support of his contention. 6. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that the suit filed in C.S.No.287 of 2009, and the compromise decree passed in that suit are fraudulent one. Master Crafts Partnership Firm, rep., by Power Agent Suman Voora] in support of his contention. 6. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that the suit filed in C.S.No.287 of 2009, and the compromise decree passed in that suit are fraudulent one. The suit was filed on 21.04.2009 and on 23.04.2009, a memo of compromise was signed and on 24.04.2009, the suit was decreed on the basis of the compromise memo filed by the parties. 7. The learned counsel for the first respondent/plaintiff further submitted that, after the purchase of the suit property by the first respondent/plaintiff, in the year 2004, she came to know that the wife of the revision petitionerwas theplaintiff in M.C.C.O.S.No.9037 of 1995, and that suit was filed against the fourth respondent herein, viz., the husband of Sophia Parveen, for recovery of amount and the wife of the revision petitioner filed E.P.No.11 of 1999, on the file of the Additional Sub Court, Chengalpattu, to attach the property and to bring the same for sale to satisfy the decree. Challenging the same, the first respondent/plaintiff filed an application in E.A.No.318 of 2007, and paid the entire decree amount and full satisfaction was recorded in the Execution Petition filed by the wife of the revision petitioner, on 25.07.2007. Therefore, even in the year 2007, the revision petitioner was aware that the suit property was purchased by the first respondent/plaintiff. Therefore, the decree obtained in C.S.No.287 of 2009 is a collusive decree and the same has to be set aside. 8. The learned counsel for the first respondent/plaintiff also submitted that on coming to know of the decree passed in C.S.No.287 of 2009, the first respondent/plaintiff filed Application Nos.1693 & 1694 of 2011, to implead herself as one of the defendants and to set aside the compromise decree respectively, and both the applications were dismissed by this Court, by observing that the first respondent/plaintiff was not a party to the suit and therefore, she cannot challenge the compromise decree by way of applications and she can file a separate suit, challenging the compromise decree or raise third party objection, in the Execution Petition filed by the decreee-holder. Therefore, the presence suit is filed by the first respondent/plaintiff' to set aside the compromise decree. 9. Therefore, the presence suit is filed by the first respondent/plaintiff' to set aside the compromise decree. 9. The learned counsel for the first respondent/plaintiff also submitted that the first respondent/plaintiff is not a party to the compromise decree and therefore, she is not liable to value the suit properties, as per the value of the suit in C.S.No.287 of 2009 and the suit properties are agricultural properties and hence, the first respondent/plaintiff'calculated the market value by multiplying30 times of the kist and that is proper, as per Section 7 of the Tamil Nadu Court Fee and Suits Valuation Act. The learned counsel also submitted that the plaint cannot be struck off on the ground of deficit Court fee and it is for the revision petitioner to file appropriate application before the Court below and the Court below has to pass orders and that cannot be a ground, while invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. 10. According to me, at this stage, this Court cannot go into the merits of the allegations made in the plaint and it is pleaded by the first respondent/plaintiff that by practicing fraud upon the Court, the revision petitioner had obtained the collusive decree and that aspect has to be gone into only during trial. Further, if any opinion is expressed in this order, that would affect the parties during trial. Hence, I am refrained from making any observation regarding the nature of decree obtained by the revision petitioner in C.S.No.287 of 2009. 11. Further, the first respondent/plaintiff has filed applications before this Court to set aside the compromise decree and they were dismissed with an observation, directing the first respondent/plaintiff to file a separate suit to set aside the compromise decree and hence, the present suit was filed by the first respondent/plaintiff. Whether the first respondent/plaintiff is entitled to the relief of setting aside the compromise decree passed by this Court can be decided by the Trial Court with regard to the allegations made by the first respondent/plaintiff in the plaint, eventhough the decree was passed by this Court in C.S.No.287 of 2009. Whether the first respondent/plaintiff is entitled to the relief of setting aside the compromise decree passed by this Court can be decided by the Trial Court with regard to the allegations made by the first respondent/plaintiff in the plaint, eventhough the decree was passed by this Court in C.S.No.287 of 2009. If the first respondent/plaintiff is able to satisfy the Court that the decree has been obtained by the revision petitioner by practicing fraud and the decree is a collusive decree, the same can be challenged by the first respondent/plaintiff, as she was not a party to the proceedings in C.S.No.287 of 2009. 12. Further, the arguments of the learned counsel for the revision petitioner that valuation of the suit is not proper and ought to have been valued at Rs.11,00,000/-cannot be gone into in this Revision Petition and it is open to the revision petitioner to apply to the Court, by filing application under Section Tamil Nadu Court Fee and Suits Valuation Act, for proper valuation of the Court fee. Further, under Order 7, Rule 11 C.P.C., plaint cannot be rejected on the ground of wrong valuation and if any application is filed stating that the suit was not valued properly, the Court below has to render findings and give a reasonable time to the first respondent/plaintiff to pay the Court fee and if the first respondent/plaintiff failed to pay the Court fee, thereafter only, the plaint can be rejected. 13. Hence, in this Civil Revision Petition, the correctness of the valuation of the Court fee cannot be gone into and it is open to the revision petitioner to challenge the same by filing necessary application before the Court below. Further, the judgment relied upon by the learned counsel for the revision petitioner cannot be applied to the facts of the case on hand. In the judgment reported in (2011) 3 C.T.C. 650 referred to supra, I had occasioned to deal with the striking of the plaint, which was the subject matter of land acquisition proceedings and in that context, after relying upon the judgment of the Hon'ble Supreme Court, I held that, when the land was acquired by the Government under the land acquisition proceedings, no suit will lie. Hence, the said judgment cannot be applied to the facts of the present case. 14. In the result, Civil Revision Petition, being devoid of merits is dismissed. No costs. Hence, the said judgment cannot be applied to the facts of the present case. 14. In the result, Civil Revision Petition, being devoid of merits is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.