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2014 DIGILAW 4506 (MAD)

R. Sundaravadivelan v. R. Sivaganesa Velan

2014-12-02

R.SUBBIAH

body2014
JUDGMENT R. SUBBIAH, J. 1. The present application has been filed by the applicant/first defendant in the suit in C.S. No. 564 of 2013 under Order XIV Rule 8 of O.S. Rules read with Order VII Rule 11 CPC to reject the plaint filed by respondents 1 to 3/plaintiffs 1 to 3. 2. For the sake of convenience, the parties will be referred to as per their ranking in the civil suit. 3. The plaintiffs have filed the suit in C.S. No. 564 of 2013 to pass a preliminary decree for division of suit “A” schedule property by metes and bounds, into four shares and to allot one share each to the plaintiffs individually and jointly three shares to plaintiffs and one share to the first defendant and for other incidental reliefs. 4. Before dealing with the application filed by the first defendant under Order VII Rule 11 CPC for rejection of the plaint, this Court is of the opinion, it would be appropriate to extract the averments made in the plaint and hence, the averments made in the plaint, in nutshell, are set out hereunder:- (a) The plaintiffs 1 to 3 and the first defendant are the brothers and they are the sons of late P.R. Rajaperumal Nadar. The defendants 2 to 36 are the lessees/tenants in occupation of different portions of the plaint schedule property. The said P.R. Rajaperumal Nadar came from his native village and settled in Chennai. He started a provisional store business under the name and style of Devi Ratnamala Provision Stores to eke out his livelihood. After completion of studies, plaintiffs 1 and 2 secured employment and were earning independently. They were also assisting their father P.R. Rajaperumal Nadar in running the provisional store business while continuing their studies. The third plaintiff had started a book binding business and even now, he is doing the said business. The first defendant is the eldest son of late P.R. Rajaperumal Nadar. He did not evince any interest in his studies and he did not attend school regularly. The said P.R. Rajaperumal Nadar died on 24.10.2011. (b) During his life time, late P.R. Rajaperumal Nadar advised his four sons including the first defendant to purchase the suit property jointly. On his advice, the plaintiffs had contributed substantial amount for the purchase of the suit property. The said P.R. Rajaperumal Nadar died on 24.10.2011. (b) During his life time, late P.R. Rajaperumal Nadar advised his four sons including the first defendant to purchase the suit property jointly. On his advice, the plaintiffs had contributed substantial amount for the purchase of the suit property. Since the first defendant was unemployed, he was unable to contribute any amount for the purchase of the suit property. Hence, their mother came forward to sell her 50 sovereigns of gold ornaments and provided the said funds on behalf of the first defendant for purchase of the suit property. Thus, the suit property was purchased under a registered sale deed dated 9.9.1996 registered as document No. 1954 of 1996 in the joint names of the plaintiffs and the first defendant. Therefore, all the four persons are joint owners of the suit property. (c) At the time of purchase, the suit property comprised of only ground floor and first floor and the late P.R. Rajaperumal Nadar during his life time, was looking after the suit property and received lump sum amounts from the lessees to be adjusted against rents and also rental advances and put up additional construction. After such construction, the entire property was let out to the tenants and the total rental income realised from the lessees/tenants was nearly Rs. 1,50,000/- i.e. from defendants 2 to 36, who are the tenants, presently occupying different portions. The said late P.R. Rajaperumal Nadar, out of the rental income and the income from his business, had celebrated the marriages of all the sons and daughter and the first defendant never contributed any amount nor had any source of income to assist his father. The late P.R. Rajaperumal Nadar himself had given vouchers/receipts to the lessees/tenants for all the amounts received as rental advances and only these amounts alone are to be repaid by the plaintiffs and the first defendant. (d) The late P.R. Rajaperumal Nadar originally started a provisional store business. Later, he had also started a business in the supply of prawn for which he had purchased two deep freezers and employed staff for the purpose of running the provisional store as well as prawn vending business, which are described in schedule B of the plaint. (d) The late P.R. Rajaperumal Nadar originally started a provisional store business. Later, he had also started a business in the supply of prawn for which he had purchased two deep freezers and employed staff for the purpose of running the provisional store as well as prawn vending business, which are described in schedule B of the plaint. The first defendant, after the death of his father P.R. Rajaperumal Nadar, taking advantage of the situation, gained control over the two businesses run by his father and also began to collect rents from the tenants by promising the plaintiffs time and again that their due shares in the business as well as in the rental income would be paid. (e) At the time of death of P.R. Rajaperumal Nadar, there was stock in trade worth more than Rs. 5,00,000/- and the first defendant is liable to account for the same. However, he did not pay the legitimate dues to the plaintiffs either from the business or from the rents received. It is only the third plaintiff, after police complaint, was able to get a sum of Rs. 4,000/- every month from May, 2012 till February, 2013. Since the first defendant did not come forward to act honestly and fairly in paying the legitimate shares due to the plaintiffs, who are also the joint owners of the suit property and the business, plaintiffs 2 and 3 issued a lawyer notice to the first defendant on 26.2.2013, calling upon him to account for all the incomes received from the tenants as well as businesses and for partition of the suit property by metes and bounds. The first defendant came forward with a reply dated 14.3.2013 raising untenable allegations. The plaintiffs 2 and 3 gave a rejoinder dated 23.4.2013 stoutly repudiating and denying the claims of the first defendant. (f) The provisional store and the prawn business are the absolute and independent businesses of late P.R. Rajaperumal Nadar and the claim of the first defendant that the prawn business was started only by him, is absolutely incorrect and false. The first defendant had no independent source of income nor had any means to start any business. (g) The late P.R. Rajaperumal Nadar and his two brothers jointly owned a house site in their native village. The first defendant had no independent source of income nor had any means to start any business. (g) The late P.R. Rajaperumal Nadar and his two brothers jointly owned a house site in their native village. After the death of P.R. Rajaperumal Nadar, the plaintiffs and the first defendant jointly along with their two paternal uncles divided the house site under a family arrangement dated 6.2.2012. In that arrangement, the plaintiffs and the first defendant were allotted jointly one portion in the said house site. In that property, the plaintiffs, the first defendant and their sister are entitled to a share equally. The said house site is not yet divided. While so, since the first defendant is trying to put up a construction in one portion of the said house site, the second plaintiff filed a suit in O.S. No. 22 of 2013 before the District Court, Tuticorin for partition and separate possession of the house site at Vembar Village, Vilathikulam Taluk, Tuticorin District, as against the first defendant, plaintiffs 1 and 3 and their sister and the same is pending. The present suit is for partition of the joint property belonging to the plaintiffs and the first defendant alone. Their sister Devi Ratnamala and their paternal uncle have no right in the suit property. Therefore, the suit is not bad for partial partition. Thus, the plaintiffs filed the suit for partition of the suit schedule properties. 5. On receipt of notice, the first defendant has filed the present application under Order VII Rule 11 CPC to reject the plaint. In the affidavit filed in support of the said application, it has been averred as follows:- (a) Already, the second plaintiff has filed a suit in O.S. No. 22 of 2013 before the District Court, Tuticorin, as against the first defendant, plaintiff 1 and 3 and his sister Devi Rathna Mala, for partition and separate possession of the suit property and it is evident from the averments made in plaint, which reads as follows:- “15. The plaintiff's father late P.R. Rajaperumal Nadar and his two brothers jointly owned a house site in their native village. After the death of plaintiff's father, the plaintiff and the first defendant jointly along with their two paternal uncles divided the said house site under a family arrangement dated 6.2.2012. The plaintiff's father late P.R. Rajaperumal Nadar and his two brothers jointly owned a house site in their native village. After the death of plaintiff's father, the plaintiff and the first defendant jointly along with their two paternal uncles divided the said house site under a family arrangement dated 6.2.2012. The plaintiffs and the first defendant are allotted jointly one portion in the said house site. Therefore, all the plaintiffs and the first defendant and their sister are entitled to a share equally. The said house site is not yet divided. While so, the first defendant is now trying to put up a construction in one portion. Therefore, the plaintiffs and their sister filed O.S. No. 22 of 2013 before the District Court, against the first defendant impleading the other paternal uncles as well for partition and separate possession of the house site at Vembar Village, Vilathikulam Taluk, Tuticorin District. The same is pending. The present suit is for partition of the joint property belonging to the plaintiffs and the first defendant alone. Their sister Tmt. Devi Rathinamala of their paternal uncle have no right in the suit property. Therefore, the suit is not bad for partial partition.” If the suit before the District Court is for partition and separate possession, then the present suit schedule property also should have formed part of the earlier suit for partition if the claim of the plaintiffs is genuine. Every suit should include all the relief and the whole claim and if any portion of the claim is relinquished, then the plaintiffs cannot sue in respect of the portion so omitted or relinquished without a leave obtained at the time of filing the first suit. The plaintiffs have intentionally relinquished and omitted to include the claim and now the plaintiffs are taking a sham defence that their sister and paternal uncle have no right, which cannot be sustained because one of the several reliefs, which was available for the plaintiffs at the time of filing the suit in O.S. No. 22 of 2013 before the District Court, Tuticorin as against the first defendant, is the relief of partition with regard to the present suit schedule property which the plaintiffs have intentionally omitted and relinquished. The partial partition is not bad in law as stated in the plaint averment, cannot be accepted as it is barred by Order 2 Rule 2 CPC, wherein it has been clearly stated that where a plaintiff omits to sue in respect of or intentionally relinquished any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. In this case, intentionally the plaintiffs relinquished their claim as against the first defendant. Further, the plaintiffs ought to have brought this property also if they really had any claim with regard to the suit schedule property as against the first defendant as the earlier suit is also for partition and separate possession. Even by the plaint averments, the plaint is barred by law under Order 2 Rule 2 and 3 CPC and hence, the plaint has got to be rejected. 6. The plaintiffs filed a counter stating that the suit has been filed for partition and separate possession of their 3/4th share in the suit property. The suit property was purchased by the plaintiffs along with the first defendant, under a registered sale deed dated 9.9.1996. Therefore, the suit property is a joint property belonging to the plaintiffs and the first defendant. The suit filed before the District Court, Tuticorin is for partition in respect of a house site in Vembur Village, Vilathikulam Taluk, Tuticorin District forming part of larger extent originally belonged to one Rathinasamy Nadar. After his death, his sons Paulsamy, Rajaperumal, the plaintiffs' father P.R. Rajaperumal Nadar and Chakkarai Nadar succeeded the said property. The said Chakkarai Nadar died on 4.11.2012 leaving behind him his legal heirs. Likewise, Paulsamy Nadar also died leaving behind him his son Dharmalingam and other daughters. Thereafter, a family arrangement was made between the legal heirs of late Rathinasamy Nadar and in the said arrangement, two house sites have been allotted towards the share of late P.R. Rajaperumal Nadar and the said house sites were jointly enjoyed by all the legal heirs of P.R. Rajaperumal Nadar including their sister Devi Ratnamala. Since the first defendant began to put up construction in the said property, the second plaintiff filed a suit in O.S. No. 22 of 2013 on the file of the learned Additional District Judge-II, Tuticorin for partition and separate possession of 1/5th share. Since the first defendant began to put up construction in the said property, the second plaintiff filed a suit in O.S. No. 22 of 2013 on the file of the learned Additional District Judge-II, Tuticorin for partition and separate possession of 1/5th share. The first defendant had also entered his appearance in the said suit and filed written statement. In fact, the suit property involved in the said suit is an ancestral property of plaintiffs, the first defendant and their sister, whereas the present suit property belongs to only four brothers viz. the plaintiffs and the first defendant. The plaintiffs' sister has nothing to do with the present suit property and she has no manner of right, title or interest in the suit property. Therefore, absolutely, there is no need to add their sister in the present suit for partition. Therefore, the suit is not bad for partial partition. Hence, the present application has to be dismissed. 7. Reply affidavit has been filed by the first defendant reiterating the averments made in the affidavit filed in support of the application for rejection of the plaint. 8. It is the submission of the learned counsel appearing for the first defendant, even as per the averments made in the plaint, the suit has been filed only for partial partition. Secondly, the plaintiffs have not added their sister as party to the present suit and they have intentionally omitted and relinquished her in the present suit. In fact, one of the plaintiffs viz. the second plaintiff filed a suit for partition in O.S. No. 22 of 2013 before the District Court, Tuticorin and in the said suit itself, the present suit property ought to have been added, if the claim of the plaintiffs is genuine or atleast ought to have obtained leave to file the present suit as required under Order 2 Rule 2 CPC. Since they have not obtained leave, the plaint is liable to be rejected. In support of his contention, learned counsel appearing for the first defendant relied upon the recent judgment of the Hon'ble Apex Court delivered in State Bank of India vs. Gracure Pharmaceuticals Limited, Civil Appeal Nos. 10531-10532 of 2013 9. Since they have not obtained leave, the plaint is liable to be rejected. In support of his contention, learned counsel appearing for the first defendant relied upon the recent judgment of the Hon'ble Apex Court delivered in State Bank of India vs. Gracure Pharmaceuticals Limited, Civil Appeal Nos. 10531-10532 of 2013 9. Per contra, learned counsel appearing for the plaintiffs submitted that the suit pending before the District Court, Tuticorin has been filed for partition of the ancestral property, in which the plaintiffs, the first defendant and their sister are entitled to equal share, whereas the property involved in the present suit is the joint property of the plaintiffs and the first defendant alone. Therefore, the plaintiffs' sister has nothing to do with the present suit property and hence, she has not been added as a party to the present suit. However, non-impleading of their sister will not serve as a ground to reject the plaint and their sister can be impleaded at any stage of the suit proceedings. Further, the learned counsel appearing for the plaintiffs by inviting the attention of this Court to the written statement filed by the first defendant in the suit in O.S. No. 22 of 2013 pending before the District Court, Tuticorin, submitted that even according to the first defendant, the ancestral property involved in that suit was already divided as per the custom of the village. When that being the stand of the first defendant in O.S. No. 22 of 2013, now he cannot say that the present suit is bad for partial partition. However, whether the suit is bad for partial partition of not, is the question of fact that has to be decided at the time of trial. Therefore, the said submission made by the learned counsel appearing for the first defendant cannot serve as a ground to reject the plaint since the present suit has been filed only in respect of the joint property of the plaintiffs and the first defendant and also in respect of the business owned by their father. Absolutely, there is no need to obtain leave under Order 2 Rule 2 CPC. Absolutely, there is no need to obtain leave under Order 2 Rule 2 CPC. Further, the learned counsel appearing for the plaintiffs submitted that the suit pending before the District Court, Tuticorin can be transferred to the file of this Court and can be tried jointly along with the present suit and hence, there is no need to reject the plaint. Only when the averments made in the plaint do not constitute a cause of action to file a suit for partition as against the defendant, the plaint can be rejected. In the instant case, the averments made in the plaint clearly make out a cause of action for filing a suit for partition. Therefore, there is no need to reject the plaint merely for the reason that no leave was obtained under Order 2 Rule 2 CPC to file the present suit. In this regard, learned counsel appearing for the plaintiffs relied upon the following decisions viz. (i) Kamala and Others vs. K.T. Eshwara Sa and Others, (2008) 12 SCC 661 (ii) Shub Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and Others, (2009) 9 SCC 689 (iii) Dwijapada Mondal and Another vs. Bholanath Mondal and Others, AIR 1954 Calcutta 85 10. Keeping the submissions made by the learned counsel on either side, I have carefully gone through the entire materials available on record. 11. The submission of the learned counsel appearing for the first defendant is on three folds viz. (i) The present suit has been filed for partial partition. (ii) The sister of the plaintiffs and the first defendant viz. Devi Rathna Mala was not added as a party to the suit. (iii) Already one of the plaintiffs viz. the second plaintiff has filed a suit for partition before the District Court, Tuticorin in O.S. No. 22 of 2013 for partition of their ancestral property situated at Vembur Village, Vilathikulam Taluk, Tuticorin District. When the said suit for partition is pending before the said Court, the plaintiffs ought to have obtained permission under Order 2 Rule 2 CPC to file the present suit before this Court. Since such permission was not obtained, the suit is barred under Order 2 Rule 2 CPC. 12. When the said suit for partition is pending before the said Court, the plaintiffs ought to have obtained permission under Order 2 Rule 2 CPC to file the present suit before this Court. Since such permission was not obtained, the suit is barred under Order 2 Rule 2 CPC. 12. With regard to the partial partition, it is the submission of the learned counsel appearing for the first defendant that even as per the averments made in the plaint, the present suit has been filed only for a partial partition. Since the partial partition is bad in law, the plaint is liable to be rejected. But, it is the case of the plaintiffs that the present suit has been filed only for the partition of the properties jointly owned by them and the first defendant alone. In the suit schedule properties, except the plaintiffs and the first defendant, no other person is having a share. In respect of their ancestral property in which their sister is also having a right, already the second plaintiff has filed a suit for partition in O.S. No. 22 of 2013 on the file of the District Court, Tuticorin, by adding their sister as one of the parties. Hence, the present suit is not for partial partition since the sister of the plaintiffs and the first defendant, has no right in the suit schedule properties. But, in my considered opinion, whether the suit filed by the plaintiffs is bad for a partial partition or not is purely a question of fact, which has to be decided only during the course of trial. Similarly, the sister of the plaintiffs and first defendant can also be added as one of the parties to the suit at any stage of the trial. Hence, the first two grounds raised by the learned counsel appearing for the first defendant will not serve as a ground for rejection of plaint. 13. Now, the only question that has to be seen in this case is, whether the plaint is liable to be rejected since no leave under Order 2 Rule 2 CPC was obtained to file the present suit. I find that the parties in both the suits viz. 13. Now, the only question that has to be seen in this case is, whether the plaint is liable to be rejected since no leave under Order 2 Rule 2 CPC was obtained to file the present suit. I find that the parties in both the suits viz. O.S. No. 22 of 2013 pending before the District Court, Tuticorin and C.S. No. 564 of 2013 pending before this Court are one and the same and both the suits have been filed for partition of the properties between the parties. According to the plaintiffs, the suit pending before the District Court, Tuticorin has been filed for partition of the ancestral property, whereas the property involved in the present suit is in respect of the joint property of the plaintiffs and the first defendant alone. Therefore, leave under Order 2 Rule 2 CPC is not necessary in this case. But, in my considered opinion, both the suits have been filed only for the relief of partition of the properties between the same parties and therefore, the cause of action for filing the present suit was available to the plaintiffs even on the date when the earlier suit was filed before the District Court, Tuticorin. When that being so, I do not find any merit in the submission made by the learned counsel appearing for the plaintiffs that since the earlier suit was filed for the ancestral property, there is no need to obtain leave under Order 2 Rule 2 CPC to file the present suit, since the property involved in the present suit is joint property of plaintiffs and first defendant alone. 14. In this regard, a reference could be placed in the judgment of the Hon'ble Apex Court delivered in State Bank of India vs. Gracure Pharmaceuticals Limited, Civil Appeal Nos. 10531-10532 of 2013. The factual aspect of the said judgment would show that the respondent in that case filed a suit before the District Court, Delhi in O.S. No. 288 of 2003-04 claiming damages of Rs. 3,09,000/- with costs and pendente lite and future interest @ 18% per annum against the appellant bank. The respondent has also filed another suit before the Delhi High Court in Original Suit No. 1145 of 2003 as against the appellant therein for recovery of a sum of Rs. 44,30,994/-. 3,09,000/- with costs and pendente lite and future interest @ 18% per annum against the appellant bank. The respondent has also filed another suit before the Delhi High Court in Original Suit No. 1145 of 2003 as against the appellant therein for recovery of a sum of Rs. 44,30,994/-. The appellant bank has filed an application under Order VII Rule 11 CPC in Suit No. 288 of 2003-04 before the District Court, Delhi, for rejection of the plaint in the suit for damages on the ground that the same was barred by the provisions of Order 2 Rule 2 CPC. The District Court, Delhi heard the matter and after perusing the plaint, allowed the application and rejected the plaint. The appeal filed against the said rejection was allowed by the Delhi High Court. Aggrieved over the same, the appellant bank has filed further appeal before the Hon'ble Apex Court in Civil Appeal Nos. 10531-10532 of 2013, wherein, the Hon'ble Apex Court has held as follows:- “9. The scope of the above-mentioned provisions came up for consideration before this Court in several cases. The earliest one dealt by the Privy Council was reported in Naba Kumar Hazra vs. Radhashyam Mahish, AIR 1931 PC 229 wherein the Privy Council held that the plaintiff cannot be permitted to draw the defendant to court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part of claim only. In Sidramappa vs. Rajashetty and Others, (1970) 1 SCC 186 , this Court held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter, namely, the subsequent suit, will not be barred by the rule contained in order 2 Rule 2 CPC. In Gurbux Singh vs. Bhooralal, AIR 1964 SC 1810 , the scope of the above-mentioned provision was further explained as under:- In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out – (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar.” 15. In yet another decision Sornam vs. A. Venugopal, 2010 (5) CTC 563 , it has been held as follows:- “47. In the above decision, this Court has clearly held that the Rule requires whether the causes of action now urged for the present suit were available at the time of filing of the first suit or not. Having held so, this Court found that the causes of action for filing a suit for specific performance were very well available at the time of filing the first suit and not mentioning of certain facts on the cause of action which was very well available could not be a reason to come out within the clutches of Order 2, Rule 2, CPC.” The dictum laid down in the above cases would clearly show that the plaintiff cannot be permitted to draw the defendant to Court twice for the same cause by splitting up the claim. As I observed above, the cause of action for filing the present suit was already available to the plaintiffs on the date of filing of the previous suit before the District Court, Tuticorin in O.S. No. 22 of 2013. As I observed above, the cause of action for filing the present suit was already available to the plaintiffs on the date of filing of the previous suit before the District Court, Tuticorin in O.S. No. 22 of 2013. Under such circumstances, the plaintiffs ought to have obtained leave under Order 2 Rule 2 CPC to file the present suit. Therefore, I am of the opinion, the present suit is barred by the provisions of Order 2 Rule 2 CPC as contended by the learned counsel appearing for the first defendant. 16. Learned counsel appearing for the plaintiffs has relied upon the decision of the Hon'ble Apex Court reported in Kamala and Others vs. K.T. Eshwara Sa and Others, (2008) 12 SCC 661 wherein, it has been held that the suit cannot be rejected under Order VII Rule 11 CPC, since the question as to whether any property is available for partition is itself a question of fact. I find that the dictum laid down in the above judgment is totally on a different factual aspect and hence, the same cannot be applied to the facts of the present case. In the instant case, the only question involved is, whether the suit is barred by the provisions of Order 2 Rule 2 CPC, for non-obtaining of leave. In view of the discussions made above, I am of the view that the suit is clearly barred by the provisions of Order 2 Rule 2 CPC, since no leave was obtained by the plaintiffs before filing the suit. Therefore, the plaint is liable to be rejected. 17. Accordingly, the plaint in C.S. No. 564 of 2013 is rejected and the present application is allowed. No costs. Consequently, all the connected applications are closed.