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2014 DIGILAW 2 (MAD)

Karunakaran v. M. Sundaraadivelu

2014-01-02

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. This petition has been filed invoking the supervisory powers of this Court under Article 227 of the Constitution of India challenging the order of the learned Additional District Munsif, Alandur dated 11.12.2012 made in I.A.No.1003 of 2012 in O.S.No.438 of 2012 on the file of the said Court. The said Interlocutory Application came to be filed by the defendants in the said suit for the rejection of the plaint under Order VII Rule 11 CPC. The learned Additional District Munsif, after hearing, by an elaborate order, chose to allow the application and reject the plaint. The said order is sought to be challenged by the plaintiffs in this revision by invoking Article 227 of the Constitution of India. 2. When the matter came up for admission, notice was taken on behalf of the respondents and a preliminary objection was raised as to the maintainability of the Civil Revision Petition on the premise that an order rejecting the plaint shall be deemed to be a decree, against which an appeal will lie. In view of the same, this Court thought it fit to hear the arguments on the preliminary objection and aim at a disposal of the Civil Revision Petition in the admission stage itself, if possible. 3. Accordingly, the arguments advanced by Mr.s.V.Jayaraman, senior counsel for the revision petitioners and by Mr.P.Karlmarx, learned senior counsel arguing on behalf of the counsel on record for the respondents are heard. The grounds of revision and the materials produced in the form of typed-set of papers are also perused. 4. The plaintiffs in the original suit are the petitioners in the revision petition. They filed the suit for a declaration that a particular document executed by a third party in favour of the first respondent was null and void and a further declaration that the settlement deed executed by the first defendant in favour of the second defendant was also null and void and also for a permanent injunction not to disturb the alleged possession and enjoyment of the plaintiffs in respect of the suit properties. It so happens, a suit came to be filed on an earlier occasion by the second plaintiff Leela along with one Eswari represented by her Power Agent Kumar for a declaration that the suit property belonged to them. The said suit was allowed to be dismissed for default. It so happens, a suit came to be filed on an earlier occasion by the second plaintiff Leela along with one Eswari represented by her Power Agent Kumar for a declaration that the suit property belonged to them. The said suit was allowed to be dismissed for default. Subsequently, the present plaintiffs (revision petitioners) chose to file the present suit O.S.No.438 of 2012 on the file of the Additional District Munsif, Alandur for the reliefs indicated above on the premise that the documents in question were executed in respect of the properties which are claimed to be that of the plaintiffs. The respondents herein/defendants filed I.A.No.1003 of 2012 under Order VII Rule 11 CPC for the rejection of the plaint on the ground that there was suppression of material fact insofar as the filing of the earlier suit by the second plaintiff Leela and Eswari was not adverted to in any part of the plaint. 5. The learned Additional District Munsif, who considered the application after a counter was filed on behalf of the plaintiffs, passed an elaborate order dealing with many aspects in detail, but ultimately came to a conclusion that the plaintiffs had not approached the Court with clean hands as there was suppression of material fact, namely suppression of the fact that an earlier suit filed by the second plaintiff Leela along Eswari for declaration of their title had been dismissed for default. 6. The learned counsel for the revision petitioner, without advancing any argument as to whether the suppression of the fact or coming to the Court not with clean hands would fit in any one of the grounds mentioned in Order VII Rule 11 of CPC or whether it would amount to any other ground on which the plaint can be rejected by the trial Court or can be struck off by the High Court in exercise of the power of superintendence, submits the learned Additional District Munsif simply passed the impugned order rejecting the plaint, which according to the learned counsel for the petitioner, would amount to exercise of a power not conferred on the trial Court or an irregular exercise of power which can be corrected by this Court in exercise of its power of superintendence under Article 227 of the Constitution of India. 7. 7. Per contra, the learned senior counsel for the respondents would contend that the power under Article 227 cannot be exercised in a routine manner to test the correctness or otherwise of the order passed by the Court below, especially when there is an effective and efficacies remedy of appeal or revision under a regular provision of the Civil Procedure Code. It is the further contention of the learned senior counsel that an order rejecting the plaint as per the definition of term "Decree" found in section 2 of CPC shall be a decree against which an appeal will lie to the appellate forum; that the remedy of appeal is a more effective and exhaustive remedy and that in view of the availability of such a remedy, the High Court shall not be inclined to exercise its power under Article 227 to check the correctness of the order passed by the trial Court and thereby allow the petitioners to adopt a shortcut method bypassing the regular course of appeal. 8. This Court is in full agreement with the contention raised by the learned senior counsel for the respondent and hence, comes to the conclusion that the present revision filed under Article 227 of the Constitution of India is liable to be dismissed on the ground of availability of an alternative effective and efficacious remedy by way of appeal. While taking such a decision, this Court also deems it appropriate to make an observation that the petitioners shall be at liberty to challenge the order rejecting the plaint before the appellate forum along with necessary application for condoning the delay and in the affidavit to be filed in support of such application, they can also cite the pursuit of this revision as one of the reasons, in which event the appellate forum shall consider the same according to its own merits without being influenced by any of the observations made by this Court in this order. In the result, the Civil Revision Petition is dismissed. However, the petitioners shall be at liberty to challenge the order rejecting the plaint before the appellate forum along with necessary application for condoning the delay. No costs. Consequently, the connected miscellaneous petitions are closed.