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2013 DIGILAW 3960 (MAD)

M. Prince Manohar v. Bhima Lakshmi Narasammah

2013-11-20

PUSHPA SATHYANARAYANA

body2013
JUDGMENT 1. Aggrieved by the order dated 29.01.2009 passed by the learned XIII Assistant Judge, City Civil Court, Chennai in I.A. No. 21572 of 2008 in O.S. No. 7120 of 2008 wherein and by which the petition filed Order 7 Rule 11 C.P.C. seeking to reject the plaint, was dismissed, the Defendants 4 to 9 have preferred this Civil Revision Petition. 2. From the materials available on record, it is seen that the First Respondent as Plaintiff earlier filed a Suit in O.S. No. 1974 of 2001 for bare injunction and the same came upto this Court and finally ended in dismissal in C.M.A. No. 207 of 2001. The Revision Petitioners also filed a suit in O.S. No. 7077 of 2000 for declaration and permanent injunction in which the Respondent No. 1 figured as a defendant, was also finally decided by this Court in S.A. No. 761 of 2008 by judgment dated 14.7.2008. 3. The contention of the Defendants 4 to 9 before the trial Court in I.A. No. 21572 of 2008 was that in view of the earlier suit, the suit in O.S. No. 7120 of 2008 filed by the First Respondent is hit by res judicata and also hit by the provisions of Order 2 Rule 2 CPC and sought for rejection of the plaint under Order 7 Rule 11 CPC. Resisting the said Application, the First Respondent / Plaintiff filed counter stating that the prayer in the earlier suit was different from the relief sought for in O.S. No. 7120 of 2008 and also the cause of action for both the suits is entirely different besides contending that only the averments in the plaint have to be taken into account while considering the question of rejection of plaint. 4. Before going into the merits of the case, it would be relevant to state the earlier litigations between the parties. The Revision Petitioners as Plaintiffs filed a suit in O.S. No. 7077 of 2000 for declaration that the store, A.C., M.E.S., Rooms referred in the approved plan as common area, for a mandatory injunction to demolish the unauthorized construction and for permanent injunction restraining the Third Defendant in the Suit not to alienate or encumber the super structure constructed in the basement of the Schedule A mentioned property and also not to construct any further super structure in Schedule A mentioned property. The said Suit was decreed by judgment dated 24.01.2007 and the appeal filed in A.S. No. 385 of 2007 was dismissed by the First Appellate Court vide judgment dated 27.11.2007 and further confirmed by this Court in S.A. No. 761 of 2008 on 14.7.2008. 5. The present plaint in question before this Court in O.S. No. 7120 of 2008 filed by the First Respondent herein is for the following reliefs:- a) Declaration that the construction of building at door No.12 and 12-A in the plaint schedule property are not according to the sanctioned plan and is unauthorized. (b) Mandatory injunction directing the first and second defendants to demolish the unauthorized structure in the plaint schedule property (c) Mandatory injunction directing the 3rd defendant to reconstruct the structure in the plaint schedule property as per the approved plan. (d) Mandatory injunction directing the 3rd defendant to allot the share of property to the plaintiff as per the approved plan and the agreement. (e) Permanent injunction restraining the defendants from in any manner interfering with the peaceful possession and enjoyment of her share in the plaint schedule property. (f) Cost of the suit to be recovered from the contesting defendants and their assets. 6. Though the Revision Petitioners have filed an Application under Order 7 Rule 11 CPC seeking rejection of plaint, they have not stated anything as to under which of the six limbs of Order 7 Rule 11 CPC, the said relief is sought for. Learned trial Judge has also found that no argument was advanced by the learned counsel for the Petitioners on the question of cause of action. Insofar as the other objections, viz., principle of res judicata and applicability of Order 2 Rule 2 CPC, the learned Judge held that since they are mixed questions of fact and law, the same can be gone into only at the time of trial. Based on the above reasoning, the Application to reject to the plaint was dismissed. 7. Before proceeding into the facts involved in the issue on hand, it is necessary to examine the power under Order 7 Rule 11 CPC. For better appreciation, the provision is extracted herein:- 11. Based on the above reasoning, the Application to reject to the plaint was dismissed. 7. Before proceeding into the facts involved in the issue on hand, it is necessary to examine the power under Order 7 Rule 11 CPC. For better appreciation, the provision is extracted herein:- 11. Rejection of Plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; [(e) where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] 8. Clause A deals about the disclosure of cause of action. The idea undermined in the said provision is that when no cause of action is disclosed in the plaint, the Court will not unnecessarily protract and the party should not be unnecessarily harassed in the suit. For the purpose of invoking the power, the Court has to read the plaint whether it discloses the cause of action and it if it does, then the plaint cannot be rejected by the Court by exercising power under Order 7 Rule 11 CPC. For the purpose of invoking the power, the Court has to read the plaint whether it discloses the cause of action and it if it does, then the plaint cannot be rejected by the Court by exercising power under Order 7 Rule 11 CPC. It is a trite law that the cause of action is a bundle of facts and whether the plaint discloses cause of action is a question of fact which has to be gathered based on the averments made in the plaint in its entirety by taking those averments to be correct. So long as the plaint discloses some cause of action which requires determination by the Court, the mere opinion that the plaintiff may not succeed cannot be a ground for rejection of the plaint. 9. In the case on hand, it is very clearly averred by the Plaintiff adverting to the earlier Suits and also to the finding of this Court in Second Appeal, has pleaded for declaration that the construction of the suit property is not in accordance with the sanctioned plan and is unauthorized. 10. As stated earlier, the test would be as long as the claim discloses some cause of action or if it raises some questions which is fit to be decided, even if the facts of the case reveal that the plaintiff may not succeed, the plaint cannot be struck down on that ground. 11. Insofar as the other two grounds raised by the learned counsel for the Petitioners that the suit is hit by principle of res judicata and Order 2 Rule 2 CPC are concerned, once again, being a mixed question of facts and law, the same cannot be gone into at this stage and the same can be only decided at the time of trial. From a reading of the prayer in the earlier suit and the suit in question, it is clear that the property is same, the relief sought for in the earlier suit and the present suit are totally different and the present suit filed by the First Respondent, who was defendant in the earlier suit, seems to be more comprehensive and should be allowed to proceed. 12. In the present suit, the relief sought for is against the Third Defendant, who has not given up such challenge. It is only the other co-owners of the property, who are opposing the suit. 13. 12. In the present suit, the relief sought for is against the Third Defendant, who has not given up such challenge. It is only the other co-owners of the property, who are opposing the suit. 13. In view of the foregoing discussion and on going through the entire plaint and averments, this Court is of the view that the Suit in O.S. No. 7120 of 2008 on the file of the XIII Assistant Judge, City Civil Court, cannot be rejected on the threshold by invoking Order 7 Rule 11 CPC on the grounds stated by the Petitioners and the learned trial Judge has rightly dismissed the Application filed by the Revision Petitioners for rejection of plaint. Therefore, the order passed by the learned trial Judge in I.A. No. 21572 of 2008 does not call for any interference by this Court and the Civil Revision Petition is liable to be dismissed. Accordingly, this Civil Revision Petition is dismissed. No costs. It is made clear that this Court has considered the contentions raised by the parties only for the purpose of examining whether the plaint is liable to be dismissed under Order 7 Rule 11 CPC and the learned trial Judge shall proceed with the trial without being influenced by any of the observations made in this order and the parties are entitled to raise all the grounds which are available to them, as per law. As the Suit is of the year 2008, the trial Court is directed to dispose of the same as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.