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2014 DIGILAW 4270 (MAD)

Petitioner v. Respondent

2014-11-17

PUSHPA SATHYANARAYANA

body2014
Judgment This is an application taken out by the first defendant in the suit C.S. No. 650 of 2012 praying for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure. 2. Heard Ms. A. Sumathy, learned counsel appearing for the applicant / first defendant and Mr. Prakash Goklaney, learned counsel appearing for the respondent / plaintiff and perused the records. 3. The suit has been filed by the plaintiff for damages to the tune of Rs.26,88,468/-. 4. The applicant, claiming to be the owner of old Door No. 38, New No. 4 Gangaiamman Koil Street, Sridevi Kuppam, Valasaravakkam, Chennai – 87, entered into a Joint Venture Agreement with one Panchatcharam on 26.9.2007. As per the terms and conditions of the agreement, the builder has to raise construction as per the approved plan with regard to B, C and D portions and after completion of construction, the applicant was entitled to 60% and the builder was entitled to 40% of the constructed portion. It is stated that with regard to 'A' portion, the applicant had to pay Rs.800/- per sq.ft. for retaining the same. As the builder was not in possession of sufficient funds, he had not completed the construction in full and partially completed certain portions and sold two portions to one Sundaraman and Ramagopalan while selling one portion to the applicant. Inspite of selling a portion of the building also, the builder could not complete the construction. In the meanwhile, according to the applicant, she found out that the builder had sold an extent of 606 sq.ft. in excess of the agreed ratio thereby committing breach of trust and when she questioned the same, he had abruptly abandoned the work and issued a legal notice. Besides, he also filed a suit in O.S. No. 7483 of 2010 claiming a sum of Rs.14,35,681/-and the suit was dismissed on 30.9.2011 and on appeal by the said Panchatcharam before this Court in A.S. No. 175 of 2012, the same was partly allowed decreeing for a sum of Rs.2,69,452/-on 13.8.2013. In the meanwhile, the plaintiff herein claiming to be the purchaser of one of the flats from the builder Panchatcharam, filed O.S. No. 6 of 2010 on the file of the Court of District Munsif, Poonamallee, for relief of permanent injunction against the applicant and her husband. In the meanwhile, the plaintiff herein claiming to be the purchaser of one of the flats from the builder Panchatcharam, filed O.S. No. 6 of 2010 on the file of the Court of District Munsif, Poonamallee, for relief of permanent injunction against the applicant and her husband. It is further stated that the plaintiff herein is the son of the above said builder Panchatcharam. However, the said suit was withdrawn by the plaintiff on 23.02.2012. Once again, the plaintiff filed O.S. No. 20 of 2012 on the file of the Court of District Munsif, Poonamallee, for the relief of permanent injunction against the present applicant not to interfere with his peaceful possession and enjoyment of the suit property. Even that suit was also withdrawn by the plaintiff as not pressed. The further case of the applicant is that in both the suits, the plaintiff, while withdrawing, has not taken the sanction of the Court to file a fresh suit on the same cause of action. Therefore, the applicant has come up with the present application for rejection of the plaint as it is only an abuse of process of law. 5. The plaintiff, who is the respondent in this Application, has filed a counter affidavit contending that the cause of action in the suits O.S. No. 6 of 2010 and O.S. No. 20 of 2012 are different though the parties and the property are same. As the present suit C.S. No. 650 of 2012 is filed for recovery of money as damages, it was contended by the learned counsel for the respondent / plaintiff that the cause of action for the present suit is different and the suit is very well maintainable. 6. Now the issue in question is whether the plaint in C.S. No. 650 of 2012 has to be rejected under Order VII Rule 11 CPC. 7. Learned counsel appearing for the applicant had contended that the present suit does not disclose a cause of action and hence, the plaint has to be rejected. 8. From the materials available on record, it is seen that the plaintiff claims to have purchased the property vide sale deed dated 29.12.2008 by paying the sale consideration of Rs.11,04,000/-. The suit in O.S. No. 6 of 2010 was filed based on the sale deed dated 29.12.2008. 8. From the materials available on record, it is seen that the plaintiff claims to have purchased the property vide sale deed dated 29.12.2008 by paying the sale consideration of Rs.11,04,000/-. The suit in O.S. No. 6 of 2010 was filed based on the sale deed dated 29.12.2008. The cause of action disclosed in the said suit is that on 06.4.2008, a Construction Agreement with M/s Aneraj Construction was entered into, the sale deed was executed by the first defendant in favour of the plaintiff on 29.12.2008, on 20.8.2009, possession of the flat was handed over to the plaintiff and on various other dates. This suit was not pressed by the plaintiff by filing a memo on 23.02.2012. No liberty was obtained by the plaintiff to file a fresh suit on the same cause of action. Thereafter, the plaintiff had filed O.S. No. 20 of 2012 on the file of the Court of District Munsif, Poonamallee, against the same defendant for the same property. The cause of action pleaded in the above suit in paragraph 11 is usefully extracted below:- “The cause of action arose at Valasarawakkam where the 1st defendant executed a sale deed in favour of the plaintiff dated 29.12.2008 within the jurisdiction of this Hon'ble Court where power executed by the plaintiff in favour of his mother Mrs. Dhanalakshmi and within the jurisdiction of this Hon'ble Court.” 9. It is also seen from the typed set of papers available before this Court that even the subsequent suit in O.S. No. 20 of 2012 was dismissed as not pressed at the instance of the plaintiff without deserving any right for filing another suit. While so, the present suit C.S. No. 650 of 2012 is filed for recovery of money and the cause of action pleaded in paragraph 6 runs as follows:- “The cause of action arose at Chennai where the plaintiff permanently residing at Chennai within the jurisdiction of this Hon'ble Court; where all transactions taken place within the jurisdiction of this Hon'ble Court. The sale agreement signed by respondent only at plaintiff's resident all cash transaction took place at Triplicane within the jurisdiction of this Hon'ble Court.” 10. From a reading of the above paragraph, it is seen that the plaintiff has not specified any of the transactions with dates. The sale agreement signed by respondent only at plaintiff's resident all cash transaction took place at Triplicane within the jurisdiction of this Hon'ble Court.” 10. From a reading of the above paragraph, it is seen that the plaintiff has not specified any of the transactions with dates. It only states that the plaintiff is permanently residing within the jurisdiction of this Court and all transactions had taken place within the jurisdiction of this Court. No doubt, the cause of action is a bundle of facts. Even going by the right that the plaintiff may claim for filing the suit, it is the sale deed dated 29.12.2008 wherein he has purchased the suit property by virtue of a registered sale deed after paying the sale consideration. It is also not known as to why the said dates have not been given in the cause of action paragraph. However, it is evident from a reading of the plaint that only the sale dated 29.12.2008 gives rise to the cause of action to the plaintiff to file the above suit. It is also pertinent to point out at this juncture that when the plaint does not discloses the cause of action, the same has to be rejected. Besides, on two earlier occasions, the plaintiff had filed the suits on the very same causes of action and withdrew them for the reasons best known to him. Therefore, it was contended by the learned counsel for the applicant / defendant that it is only an abuse of process of law and the plaint has to be thrown out even at the threshold. 11. In support of his contention, learned counsel appearing for the applicant seeks in aid of the decision in P.Leelarathinam vs. P.E. Srinivasan [2012 (1) MWN (Civil) 28] and more particularly, relied on paragraphs 9, 15 and 16 of the judgment wherein this Court has observed as follows:- Para 9 : “As pointed out earlier, the counsel appearing for the respondents 1 to 6 herein has made an endorsement to dismiss the suit as withdrawn with a liberty to file a fresh suit. No reason whatsoever has been stated by the counsel, as to why the said suit is sought to be withdrawn. No reason whatsoever has been stated by the counsel, as to why the said suit is sought to be withdrawn. Under Order 23 Rule 1 CPC, a suit could be withdrawn seeking liberty to file a fresh suit, if there are some formal defects and if the Court is satisfied that sufficient grounds exist for allowing the plaintiff to institute a fresh suit. In the case on hand, the respondents 1 to 6 have not sought permission to withdraw the suit with liberty to file a fresh suit giving any reasons thereon. That apart, the respondents 1 to 6 have not filed any application under Order 23 Rule 1 CPC. When no reason has been stated by the respondents 1 to 6 herein to withdraw the suit seeking liberty to file a fresh suit, in my considered view, the respondents 1 to 6 cannot be permitted to lay a suit later for the very same relief, giving the same particulars as was set out in the earlier suit. Para 15 : No doubt, a suit cannot be thrown out at the threshold and the parties have to be driven to contest the suit on merits after full fledged trial. That does not mean, the suits that has been filed of this nature has to go on to see the final day. That apart, the matter will not end on the final day of the judgment and decree made in the suit. The matter could be prosecuted endlessly upto Supreme Court. If it is established by the petitioners that the suit filed by the respondents 1 to 6 is a clear abuse of process of law, for the reasons set out earlier, I am of the considered view that the suit that has been filed by the respondents 1 to 6 has to be thrown out even at the inception. The facts set out earlier would disclose that the respondents 1 to 6 are prosecuting the matter endlessly without allowing the other side to see the end of the day. Para 16 : The learned counsel appearing for the respondents 1 to 6 drawn my attention to the judgment reported in Kamal and Others vs. K.T.Eshwarasa and Others (2008) 12 Supreme Court Cases 661. That is the case where the preliminary decree was passed in a suit and that the final decree was not passed. Para 16 : The learned counsel appearing for the respondents 1 to 6 drawn my attention to the judgment reported in Kamal and Others vs. K.T.Eshwarasa and Others (2008) 12 Supreme Court Cases 661. That is the case where the preliminary decree was passed in a suit and that the final decree was not passed. That apart the very same properties were not the subject matter in the earlier suit. In those circumstances, the Hon'ble Apex Court has held that the power under Order 7 Rule 11 CPC is limited and that for the applicability of the said provision, it has to be shown that the suit is barred under any law and such question can be drawn from the averments made in the plaint and the same cannot be questioned at the stage of the proceedings under Order 7 Rule 11 CPC. Hence, the said decision will not come to the rescue of the respondents 1 to 6. Further more, even the Hon'ble Apex Court in the said decision has held that for the applicability of the said provision it has to be seen whether the suit is barred by law or not, and the averments made in the plaint has to be seen in toto. In the present case on hand, I have clearly held that the present suit is a clear abuse of process of law and also barred by law. Hence, in my considered view the said judgment will not come to the rescue of the respondents 1 to 6.” 12. When admittedly the cause of action for the earlier two suits as well as the present suit is the same, the plaintiff ought to have sought all the reliefs against the defendant in respect of the same cause of action. He cannot split up the claim and ask for one relief in one suit and the other relief in the next suit. When the cause of action is same, the plaintiff has to place all his claims before the Court in one suit or otherwise, order II Rule 2 CPC will be a bar as the said Rule is based on the cardinal principle that the defendant should not be vexed twice for the same cause. Thus the principle enunciated under Order II Rule 2 CPC requires unity of all claims based on the same cause of action in one suit. 13. Thus the principle enunciated under Order II Rule 2 CPC requires unity of all claims based on the same cause of action in one suit. 13. Per contra, learned counsel appearing for the respondent / plaintiff contended that the cause of action for both the suits were different and therefore, the suit cannot be rejected. In support of such contention, he placed reliance on the decision of the Hon'ble Apex Court in Deva Ram and another vs. Ishwar Chand and another [ AIR 1996 SC 378 ] wherein Their Lordships, while dealing with the applicability of Order II Rule 2 CPC, observed as follows:- “The subsequent suit was brought by the respondents for recovery of possession on the ground that they were the owners of the land in suit and were consequently entitled to recover its possession. The cause of action in the subsequent suit was, therefore, entirely different. Since the previous suit was for recovery of sale-price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants [appellants]. The essential requirement for the applicability of Order 2 Rule 2, namely, the identity of causes of action in the previous suit and the subsequent suit was not established. Consequently, the District Judge as also the High Court were correct in rejecting the plea raised by the appellants with regard to Order 2 Rule 2 of the Civil Procedure Code.” 14. Insofar as the above judgment is concerned, though there were two suits filed, it is clear that the previous suit was filed for recovery of money and the second suit was for recovery of possession on the ground that the plaintiffs were not owners. As there were two different sets of causes of action and the causes of action were distinct and identifiable, it was held that it is not hit by Order II Rule 2 CPC. On the other hand, in the instant case, the plaintiff has not made out a cause of action at all. As such, the non-disclosure of the cause of action would lead to rejection of the plaint. 15. On the other hand, in the instant case, the plaintiff has not made out a cause of action at all. As such, the non-disclosure of the cause of action would lead to rejection of the plaint. 15. Learned counsel for the respondent / plaintiff also placed reliance on the following decisions:- (i) Prithvi Raj Singh vs. Dalip Kulkarni and others [AIR 1999 Rajasthan 201] (ii) Smt. Nirmala vs. Hari Singh [AIR 2001 Himachal Pradesh 1] (iii) Vikram vs. Gian Singh and others [AIR 2009 (NOC) 1192 (P&H) (iv) The Secretary, K.S.E.B. and another, etc. vs. M.V.Abraham and another [AIR 2007 Kerala 12] (v) Kunjan Nair Sivaraman Nair vs. Narayanan Nair and others [ 2004 (3) SCC 277 ]. 16. Though the learned counsel seeks support of the above referred cases, a perusal of the same would show that they are on the principle of Order II Rule 2 CPC and not on Order VII Rule 11 CPC and, therefore, in the considered opinion of this Court, they are not applicable to the facts of the present case. In view of the above discussion, when the question of law is such that and there is no cause of action disclosed, the plaint cannot be sustained. No reason is forthcoming as to why the plaintiff has come up with the third suit on the very same cause of action even without disclosing the same. From the above facts, excepting the sale deed dated 29.12.2008, the plaintiff does not get any other right. The plaintiff's father who had been a builder, had already ended up the battle with the defendant which has come to the Court up to the state of First Appeal and reached finality. While so, the plaintiff, who is the son of the builder, knowing very well about the factual position, has come up with the present suit only with an ulterior motive to harass the defendant abusing the process of law. The plaintiff could have either obtained liberty to file a fresh suit while withdrawing the earlier suits or amended the plaint by adding subsequent relief. Without doing so, the plaintiff has chosen to file a third suit on the same cause of action, which attitude of the party cannot be allowed to continue and should be nipped in the bud. The plaintiff could have either obtained liberty to file a fresh suit while withdrawing the earlier suits or amended the plaint by adding subsequent relief. Without doing so, the plaintiff has chosen to file a third suit on the same cause of action, which attitude of the party cannot be allowed to continue and should be nipped in the bud. In view of the above stated position, the Application to reject the plaint in C.S. No. 650 of 2012 is allowed. Suit is rejected.