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2014 DIGILAW 4271 (MAD)

Petitioner v. Respondent

2014-11-17

PUSHPA SATHYANARAYANA

body2014
Judgment 1. Application No. 2916 of 2014: This application has been filed at the instance of defendants 1 to 9 in the suit C.S. No. 358 of 2013 in terms of Section 10 CPC, seeking for grant of stay in O.S. No. 7533 of 2010 on the file of the 19th Additional Court, Chennai. 2. Application No. 2917 of 2014: Defendants 1 to 9 in suit C.S. No. 358 of 2013 have taken out this application seeking for rejection of the plaint. 3. The plaintiff filed suit C.S. No. 358 of 2013 for declaration that the plaintiff is the absolute owner of the schedule mentioned property, for recovery of possession and damages, permanent injunction against the defendants 1 to 9 from interfering with his peaceful possession and enjoyment of the suit schedule mentioned property and for costs. 4. Defendants 1 to 4 and 6 to 9 are the sons and daughters respectively of one Dasaratha Naidu while the fifth defendant is his wife. The case of the applicants / defendants 1 to 9 is that the said Dasaratha Naidu filed a suit in C.S. No. 554 of 2010 against Sree Varadharaja Benefit Fund Limited (tenth defendant in the present suit), one Appadurai, A. Thiyagarajan and one Raja Sikkandar (plaintiff in the present suit) for declaration that the sale deed dated 03.03.2010 executed by Appadurai in favour of Raja Sikkandar, is null and void as the same has been obtained by undue influence and fraud and for a consequential permanent injunction. The applicants have stated that the suit property was a residential property which was mortgaged with the above said Benefit Fund Limited, viz., the first defendant in that suit, and loans were raised. The second defendant in the said suit was the Director of the Benefit Fund. It is also alleged that the second defendant, without adverting to the procedure, had brought the mortgaged property for sale and the fourth defendant therein, who is the present plaintiff, was the successful bidder as a result of which, a sale deed dated 03.03.2010 was executed and the said sale was under challenge in C.S. No. 554 of 2010 and this Court had granted interim injunction in O.A. No. 639 of 2010 by order dated 27.5.2010 and the same is in force. While so, the suit was transferred to the file of Fifth Fast Track Court, Chennai, and was re-numbered as O.S. No. 7533 of 2010. It is further stated that the plaintiff in the present suit, who was 4th defendant therein, had also filed his written statement and contested the suit by engaging the counsel and the said suit is in the stage of trial. While so, the fourth defendant in the said suit / the plaintiff has filed the present suit in C.S. No. 358 of 2013 for the relief of declaration of title and for recovery of possession and for the consequential reliefs. 5. Learned counsel appearing for the applicants contended that the cause of action in O.S. No. 7533 of 2010 arises out of the sale deed dated 03.03.2010 which was executed in favour of the plaintiff in the present suit in which the applicants' title is at stake. It is also submitted by the learned counsel that while the present plaintiff, who was arrayed as defendant No. 4 in the previous suit, has been contesting the said suit, has filed the present suit based on the same cause of action, viz., the date on which the property was sold in his favour, ie., 03.03.2010. Since the cause of action, parties and subject matter are all same in both the suits, according to the learned counsel, the result in O.S. No. 7533 of 2010 would have a bearing on the present suit and hence, prayed for rejection of the plaint. 6. Per contra, learned counsel appearing for the first respondent / plaintiff has filed his counter affidavit contending that the first respondent / plaintiff is the bona fide auction purchaser and by virtue of the sale deed dated 03.03.2010, he has become the absolute owner of the suit property. It is also submitted that while the previous suit filed by the applicants was for setting aside the sale deed, the present suit is for declaration of title of the plaintiff and as such, according to the learned counsel for the first respondent, both the suits are having different causes of action and on these grounds, he sought for dismissal of the application under Order VII Rule 11 CPC. 7. Heard the learned counsel appearing for the parties and perused the records. 8. 7. Heard the learned counsel appearing for the parties and perused the records. 8. The only question that has to be decided is whether the application under Order VII Rule 11 CPC has to be allowed. 9. To decide the question with regard to the rejection of the plaint under Order VII Rule 11 CPC, cause of the action in both the suits have to be considered. Admittedly, the present plaintiff has purchased the property in auction sale under sale dated 03.03.2010. Law is well settled, in a catena of cases, that under Order VII Rule 11 CPC, the plaint should be taken as it is and the application has to be considered on the basis of the averments made in the plaint and considering the documents filed along with the plaint. It is also well settled that the Court should be hesitant to exercise its jurisdiction under Order VII Rule 11 CPC unless the factual matrix warrants such exercise and the matter falls within the four corners of the statute. 10. For this purpose, it would be relevant to advert to the plaint averments in the present suit. For better appreciation of the case, the relevant passages which are found in paragraphs 12 and 13 of the plaint are re-produced hereunder:- Para 12 : “The plaintiff submits that this is the first suit filed by the plaintiff against the defendant. No similar or other suit is being filed or pending before any other Court or this Hon'ble Court by the plaintiff. The defendant Nos. 1 to 9 were already filed a suit in O.S. No.7533 / 2010 and the same is pending before the Hon'ble 19th Additional City Civil Judge, Madras. Para 13 : The cause of action for filing of this suit arose at Madras where the plaintiff and the major defendants are residing at Madras, the suit property is situated at Saligramam village within the jurisdiction of this Hon'ble Court, in the auction sale, the plaintiff was the highest bidder and took the bid on 18.02.2010 and on 03.03.2010, sale deed was executed in favour of the plaintiff by the 10th defendant. Thereafter, the plaintiff caused a legal notice dated 04.05.2010 to Mr.N.Dasaratha Naidu for vacating the premises. After receipt of the notice, he issued a reply notice dated 15.05.2010 with false and frivolous allegations. Thereafter, the plaintiff caused a legal notice dated 04.05.2010 to Mr.N.Dasaratha Naidu for vacating the premises. After receipt of the notice, he issued a reply notice dated 15.05.2010 with false and frivolous allegations. On 09.02.2013, the plaintiff caused a legal notice to the defendants to quit and deliver vacant possession of the suit property. Even after receipt of the legal notice, the defendants failed and neglected to comply the same, hence the cause of action for filing of this suit is continuing day by day and subsequently also.” 11. Learned counsel appearing for the applicants contended that the plaintiff has deliberately omitted to mention the relief sought for in the previous suit filed by the applicants. He submitted that in paragraph 12, it is merely mentioned that the suit in O.S. No. 7533 of 2010 is pending. According to the learned counsel, the plaintiff bases his very claim only on the sale deed as he is only an auction purchaser of the property and has alleged that the 10th defendant has brought the property to sale clandestinely without adopting the procedure and sold the same. It is also brought to the notice of this Court that the previous suit is in the stage of trial and any result in the said suit would certainly have bearing in the present suit as the question involved in both the suits is with regard to the title of the plaintiff under sale deed dated 03.03.2010. It is pertinent to point to out at this juncture that if the Court comes to the conclusion in O.S. No. 7533 of 2010 that the sale dated 03.03.2010 has been executed by fraud, coercion and undue influence, the subsequent suit, viz., the present suit O.S. No. 358 of 2013, will have no legs to stand as the plaintiff's right would have been determined in the previous suit itself. In such circumstance, the learned counsel for the applicants contended that the second suit is unwarranted and the same has to be rejected. 12. In such circumstance, the learned counsel for the applicants contended that the second suit is unwarranted and the same has to be rejected. 12. In this regard, learned counsel placed reliance on the decision of this Court in Ponniamman Educational Trust vs. The Church of Christ Charitable Trust and Educational Charitable Society [2011 (3) MWN (Civil) 297] and more particularly, placed reliance in paragraphs 16 and 17 of the Judgment, which read as follows:- Para 16: “In Saleem Bhai and others v. State of Maharashtra and others ((2003) 1 SCC 186), it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane. The pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In I.T.C. LTD. v. Debts Recovery Appellate Tribunal, (1997) 3 CTC 746 (SC) : 1998 (2) SCC 70 , it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code. Para 17: It is well settled that the whole plaint has to be read and there cannot be any compartmentalisation, dissection, segregation of various paragraphs/averments in the plaint. It is the substance and not merely the form that has to be looked into. The plaint pleading has to be construed as it stands and the intention of the party concerned has to be gathered primarily from the tenor and the terms of the pleadings. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (vide T. Arivanandam vs. T.V. Satyapal, (1977) 4 SCC 467 )).” 13. Learned counsel also seeks in aid of the decision in N.A.Chinnasamy and another vs. S. Vellingirinathan [ 2013 (6) CTC 809 ] wherein in paragraphs 48 to 50, this Court has observed as follows:- Para 48: “It is a settled proposition of law that to exercise the superintending power under Article 227 of the Constitution of India and to struck off plaint, this Court should come to a conclusion, that the suit is an abuse of process of law, based on the plaint averments and the admission made by the plaintiff and to decide the same, the provision under Order VII Rule 11 CPC has also got relevancy. Para 49: As per Order VII Rule 11 CPC, when there is no subsisting legal cause of action for seeking the relief sought for in the plaint or when the relief sought for is statutorily barred or if the deficit court fee is not paid on the direction, as date fixed by the Court below, plaint could be rejected. So far as the non-payment of proper and deficit court fee is concerned, it should be decided by the trial court, after providing reasonable opportunity, directing the plaintiff to pay the deficit court fee, wherein the plaintiff is also entitled to challenge the correctness of the court fee paid on the plaint, hence, this Court need not go into the aspect at this stage. Para 50: The other two points under Order VII Rule 1 CPC are relating to no cause of action for filing the suit and the statutory bar under the Limitation Act. Apart from the said grounds, if it is also established that the filing of the suit itself is an abuse of process of law and the Court, hence, invoking Article 227 of the Constitution of India, the plaint could be to struck off, to meet the ends of justice.” 14. Apart from the said grounds, if it is also established that the filing of the suit itself is an abuse of process of law and the Court, hence, invoking Article 227 of the Constitution of India, the plaint could be to struck off, to meet the ends of justice.” 14. As set out in the above decisions, it is only the plaint averments that has to be considered while exercising powers under Order VII Rule 11 CPC as the provisions of Order VII Rule 11 CPC are exhaustive and the Court has to exercise the inherent provisions to see whether vexatious litigations are not allowed or to take away the time of the Court. 15. The ingredients of Order 7 Rule 11 CPC are not mere procedural technicalities without a meaning, but to combat the plurality of proceedings. The court would presume that the facts mentioned in the plaint are correct while deciding the application under Order 7 Rule 11 CPC. The maintainability of the application under Order 7 Rule 11 CPC must be quite apparent from the material averments made in the plaint. The Courts are duty bound to perform their obligations in rejecting the plaint if it is hit by any of the infirmities under Clauses (a) to (f) of Order 7 Rule 11 CPC even without the intervention of defendant. It is an independent remedy available to the defendant to challenge the maintainability of the suit irrespective of his right to contest the same on merits. In any event, rejection of plaint under Order 7 Rule 11 CPC does not preclude the plaintiff from presenting a fresh plaint in terms of Order 7 Rule 13 CPC. 16. In the given case, the facts are very clear that both the parties have filed independent suits but on the same cause of action. Obviously, the second suit is only a counter blast to the first suit. The plaintiff in the second suit, who is the fourth defendant in the earlier suit, can work out his remedies even in the same suit. It is also open to him to file a counter claim for declaring his title even in the previous suit itself. Therefore, in my considered opinion, the present plaint is only vexatious litigation and the same has to be nipped in the bud. 17. It is also open to him to file a counter claim for declaring his title even in the previous suit itself. Therefore, in my considered opinion, the present plaint is only vexatious litigation and the same has to be nipped in the bud. 17. Application No. 2916 of 2014:- The applicants have also filed another application in A. No. 2916 of 2014 under Section 10 CPC for grant of stay in C.S. No. 358 of 2013. It is un-understandable as to how this application is maintainable when the applicant has already chosen to file an application under Order VII Rule 11 CPC to reject the plaint. If the relief sought for under Section 10 CPC, viz., stay of the suit, is to be granted, it would go to show that the applicants accept maintainability of the second suit. On the other hand, the applicants have challenged the maintainability of the suit by filing application under Order VII Rule 11 CPC to reject the plaint. No doubt, the defendant can take inconsistent pleas. However, he cannot take mutually contradictory stand. 18. At this stage, learned counsel for the applicants also expressed that he would proceed with the application under Order VII Rule 11 CPC as the cause of action in both the suits were same and the same has to be rejected. In the light of the foregoing discussions, I am not inclined to allow the application filed under Section 10 CPC and Application No. 2916 of 2014 is dismissed accordingly. Considering the contentions of the learned counsel appearing for the applicants and the reasons set out above, this Court finds it necessary to allow application filed under Order VII Rule 11 CPC and accordingly, Application No. 2917 of 2014 stands allowed and the suit C.S. No. 358 of 2013 is rejected.