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2015 DIGILAW 2144 (MAD)

Dhanalakshmi v. Saraswathy

2015-06-02

P.R.SHIVAKUMAR

body2015
JUDGMENT P.R. Shivakumar, J. 1. C.R.P. (NPD) No. 2936 of 2013 has been filed against the order of the trial Court dated 12.10.2011 made in I.A. No. 3514 of 2004 in P.O.P. No. 134 of 2004. 2. C.R.P. (NPD) No. 2937 of 2013 has been filed challenging the order of the trial Court dated 12.10.2011 made in I.A. No. 3301 of 2010 in P.O.P. No. 134 of 2014 on the file of the trial Court. 3. C.M.A. No. 693 of 2013 has been filed against the order of the trial Court dated 12.10.2011 rejecting P.O.P. No. 134 of 2014. 4. The appellants in C.M.A. No. 693/2003, namely Dhanalakshmi, Muthulakshmi and Indirani along with Nagavalli (deceased) filed a suit on the file of District Munsif, Cuddalore as O.S. No. 515 of 1992 against 1) Kanagavalli, 2) Kala, 3) Shakila, 4) Kavitha, 5) Amudha, 6) Ashok (5 and 6 were minors represented by their guardian Kanagavalli), 7) Sivagangai, 8) Murugan, 9) Kavitha, 10) Deepa (8 to 10 were minors represented by their guardian Sivagangai), 11) Arumugam, 12) Egambaram, 13) Kasinathan, 14) Arunachalam, 15) Kaliyamurthy, 16) Govindammal, 17) Rajalakshmi and 18) Saraswathy Ammal, praying for a decree cancelling the decree of the District Munsif Court, Cuddalore dated 23.12.1989 made in O.S. No. 202 of 1982, which had been confirmed by the Principal Subordinate Judge, Cuddalore by a judgment and decree dated 06.12.1991 in A.S. No. 69 of 1991, for a permanent injunction restraining Sarasawathy Ammal (18th defendant) from disturbing the plaintiffs' possession of the suit property and also restraining her from taking delivery of the same from the plaintiffs and for costs. 5. The suit was filed in respect of 10 items of properties comprised in S. Nos. 2403, 2406 and 2408 in Vilvarayanatham village, within the Sub-Registration district of Cuddalore and Registration District of Cuddalore altogether measuring a total extent of 2.07 acres. Though the description of property contained a recital to the effect the suit lands were classified as Punja lands, Items 9 and 10 were specifically referred to as vacant house sites. Items 7 and 8, though not specifically referred to as vacant house sites, were defined with reference to their measurements in cuboid ($hjp mo). The Extent of all other items also have been shown taking the square feet as the basic measurement. However, the reliefs claimed in the plaint have been notionally valued at Rs. Items 7 and 8, though not specifically referred to as vacant house sites, were defined with reference to their measurements in cuboid ($hjp mo). The Extent of all other items also have been shown taking the square feet as the basic measurement. However, the reliefs claimed in the plaint have been notionally valued at Rs. 1,500/- for the relief of setting aside the decree passed in the former suit and at Rs. 400/- for the relief of permanent injunction. Though the relief of permanent injunction was sought to be valued under Section 27(C) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, it was not stated under what provision the first relief, viz., prayer to set aside the decree passed in the former suit was valued. 6. When the Court fee examiner found the valuation to be improper and court fee paid be less than what was actually payable, a check slip was issued stating that the first relief ought to have been valued at the market value of the suit properties. Accordingly, the value of the suit properties was fixed as follows: Item Nos. Value 1 2,92,273.80 2 6,54,808.00 3 4,94,521.80 4 2,92,273.80 5 6,54,808.00 6 4,94,521.80 7 1,00,124.00 8 94,492.00 9 46,746.00 10 57,240.00 Total 31,81,809.20 The same was fixed after measuring the property with the help of a Commissioner appointed by the trial Court. Fixing the market value of the property as the value of the first relief sought for in the suit, the learned Additional District Munsif, Cuddalore held that the value exceeded the pecuniary jurisdiction of the said Court and accordingly returned the plaint for presentation in the proper Court after enclosing the requisite court fee stamps. Such an order of return came to be passed on 17.09.2003 giving one month's time for presentation in proper Court. At that point of time, the subordinate Judge did have unlimited pecuniary jurisdiction. Hence, the same was presented on 16.10.2003 on the file of the Subordinate Judge, Cuddalore without making payment of the deficit Court fee, but along with a petition (not in the proper form) under Order XXXIII Rule 1CPC seeking permission to sue as indigent persons. The plaintiffs did not appear at the time of presentation of the petition seeking permission to sue as indigent persons. The plaintiffs did not appear at the time of presentation of the petition seeking permission to sue as indigent persons. Hence, the plaint and the petition were returned stating that the valuation column in the plaint should be corrected and it must be in conformity with Rule 2 of Order XXXIII CPC and that the petitioners seeking such permission shall present application in person. After such return, the petitioners in the pauper O.P. removed the original petition and re-presented the papers including a fresh petition dated 27.10.2003 to which docket of the petition filed on 16.10.2003 alone had been attached. Hence, it was repeatedly returned and represented. While the same was thus pending before the learned Subordinate Judge, Cuddalore in the unnumbered stage as unnumbered O.S. No....... of 2004, Civil Courts Act came to be amended restricting the pecuniary jurisdiction of the Subordinate Judges and conferring original jurisdiction on the District Court. Thus, the value of the suit exceeded the pecuniary jurisdiction of the Sub-Court. After several returns and re-presentations in the Sub-Court, Cuddalore, it came to be presented in the District Court, Cuddalore, consequent to the change in law. There also, after several returns and re-presentations, the same was taken on file as Pauper O.P. No. 134 of 2004. 7. Except the 18th respondent in the pauper O.P., namely Saraswathi Ammal, the decree in whose favour was sought to be set aside, all other respondents did not contest. 18th respondent Saraswathi Ammal, besides contesting the prayer of the petitioners for permission to sue as indigent persons based on her counter statement filed in the Pauper O.P., filed a petition I.A. No. 3514 of 2004 for rejection of the plaint and I.A. No. 3301 of 2010 under Order XXXIII Rule 5 of the Civil Procedure Code r/w. Section 151 CPC for rejection of the petition seeking permission to sue in forma pauperis on the file of the trial Court (Court of Principal District Judge, Cuddalore). Though Dhanalakshmi, the first petitioner/first appellant herein filed a counter statement, the third petitioner Indirani filed a separate counter statement and the same was adopted by the petitioners 1 and 2/appellants 1 and 2 herein also. 8. After hearing, the learned Principal District Judge, Cuddalore allowed both the applications and rejected the pauper O.P. and also the plaint as prayed for. 8. After hearing, the learned Principal District Judge, Cuddalore allowed both the applications and rejected the pauper O.P. and also the plaint as prayed for. As against the order passed in I.A. No. 3514 of 2004 rejecting the plaint, C.R.P. (NPD) No. 2936 of 2013 has been filed. As against the order passed in I.A. No. 3301 of 2010 rejecting the Pauper O.P. No. 134 of 2004, C.R.P. (NPD) No. 2937 of 2013 has been filed. The petitioners in the civil revision petitions have also filed C.M.A. No. 693 of 2007 challenging the decretal order passed in the Pauper Original petition rejecting it under Order XXXIII Rule 5 CPC. Even though as many as 20 persons were shown as respondents in the Civil Revision Petitions and Civil Miscellaneous Appeal, the petitioners/appellants have chosen to give up the other respondents, except the contesting respondent, namely 18th Respondent-Saraswathi Ammal. 9. The points that arise for consideration in the civil miscellaneous appeal and the civil revision petitions are: 1. Whether a revision will lie against an order passed allowing an application filed under Order XXXII Rule 5 CPC r/w Section 151 CPC for the rejection of the Pauper OP in view of the provision found in Order XLIII Rule 1(na) making such an order appealable? 2. Whether the order of the trial court dated 12.10.2011 made in I.A. No. 1301/2010 is erroneous and liable to be set aside? 3. Whether a revision will lie against the order passed allowing an application filed under Order VII Rule 11 CPC for the rejection of the plaint? 4. Whether the order of the trial court dated 12.10.2011 made in I.A. No. 3514/2004 directing rejection of the plaint is erroneous and liable to be set aside? 5. Whether decretal order dated 12.10.2011 passed in P.O.P. No. 134/2004 rejecting the Pauper OP under Order XXXIII Rule 5 CPC is erroneous and liable to be set aside as claimed in the Civil Miscellaneous Appeal No. 693/2013? 10. The petitioners 1 to 3 in both the civil revision petitions are also the appellants in C.M.A. No. 693 of 2013. Except Saraswathi Ammal, who figured as 18th respondent in the pauper O.P. and had been shown as 18th defendant in the plaint, who is shown as the first respondent in C.R.P.(NPD) Nos. 10. The petitioners 1 to 3 in both the civil revision petitions are also the appellants in C.M.A. No. 693 of 2013. Except Saraswathi Ammal, who figured as 18th respondent in the pauper O.P. and had been shown as 18th defendant in the plaint, who is shown as the first respondent in C.R.P.(NPD) Nos. 2936 & 2937 of 2013 and 11th respondent in C.M.A. No. 693 of 2013, other respondents have not chosen to contest. Curiously, the array of parties among the respondents in the civil revision petitions and in the civil miscellaneous appeal are not similar and they are not even in accordance with their rankings in the pauper O.P. and plaint respectively. Hence in this order-cum-judgment, they are referred to as respondents in general and contesting respondent Saraswathi Ammal is referred to as the first respondent. 11. The case of the revision petitioners/appellants is that the suit properties originally belonged to one Veeran; that after his death, his son Mammudhu got the suit properties and kept them in his possession and enjoyment till his death in 1975; that Nagavalli (since deceased), the wife of Mammudhu (who was shown as the first plaintiff in the plaint and first petitioner in the pauper O.P) and petitioners 1 to 3/appellants. who were the daughters of Mammudhu along with the sons of Mammudhu had got the properties left by deceased Mammudhu; that while so, the first respondent Saraswathi Ammal without making the revision petitioners and their mother as parties, filed a suit in O.S. No. 202 of 1982 on the file of the District Munsif Court, Cuddalore for a declaration of her title and recovery of possession of the suit properties against the remaining respondents in the Civil Revision Petitions and Civil Miscellaneous Appeal; that the suit was initially dismissed and on appeal it was remanded back to the trial Court and that though the said decree came to be confirmed by the appellate Judge, namely Principal subordinate Judge, Cuddalore by the judgment and decree dated 06.12.1991 made in A.S. No. 69 of 1991, the revision petitioners/appellants in the Civil Miscellaneous Appeal and their mother were constrained to file the suit in O.S. No. 515 of 1992 on the file of the Court of District Munsif, Cuddalore for the reliefs indicated supra, since they were not made parties to the earlier suit and the other respondents did not properly contest the case. 12. The plaint in the said suit was subsequently returned for proper valuation and payment of additional Court fee and presentation in the proper Court. The same came to be presented in the Court of subordinate Judge at the first instance and after return by the Sub-Court, due to change in law regarding jurisdiction, it was presented in the Court of District Judge, Cuddalore. According to the contesting respondent, namely Saraswathi Ammal, the application filed by the revision petitioners seeking leave of the Court to sue as paupers was liable to be rejected on the ground of limitation, since deficit Court fee on the plaint returned by the Additional District Munsif, Cuddalore was not paid within the time. It was also contended by her that the decree obtained by her in O.S. No. 202 of 1982 on the file of the Principal District Munsif, Cuddalore dated 23.12.1999 was confirmed not only in the first appeal by the Sub-Court, Cuddalore by judgment dated 06.12.1991 in A.S. No. 69 of 1991, but also by the High Court by its judgment dated 13.07.1992 in S.A. No. 907 of 1992; that under the doctrine of merger, the decree of the trial Court got merged with the decree of the High Court and attained finality; that the said facts will show the act of the revision petitioners/appellants to be a clear abuse of process of law and that hence the pauper O.P. as well as the plaint were liable to be rejected. 13. According to the contesting respondent, namely the 18th respondent, the deceased first petitioner in the pauper O.P. (wife of Mammudhu), who is none other than the mother of the revision petitioners/appellants in the Civil Miscellaneous Appeal, was also the mother of one Abimannan and 5 others, who figured as defendants 1 to 6 in O.S. No. 202 of 1982, the decree passed in which suit is sought to be challenged by the present revision petitioners/appellants. After the death of Abimannan, Muthaiyan and Murugesan, their legal heirs along with other three brothers and their vendees sufficiently represented the estate of deceased Mammudhu. After the death of Abimannan, Muthaiyan and Murugesan, their legal heirs along with other three brothers and their vendees sufficiently represented the estate of deceased Mammudhu. They hotly contested the former suit and hence all the legal representatives of the deceased Mammudhu, including those who were not brought on record in the former suit would be very well bound by the decree passed in the said suit viz., O.S. No. 202 of 1982, which came to be confirmed by the High Court in S.A. No. 907 of 1992. Hence, the proposed suit and the pauper O.P. were barred by principle of res judicata. 14. According to the contest respondent, the failure to present the plaint in proper court and re-presentation of the same without enclosing sufficient Court fee, made the presentation and representation of the plaint 'invalid'. Thus it was contended that the suit was not validly instituted and that hence, the plaint was liable to be rejected as the proposed suit was barred under Article 59 of the Limitation Act, 1963. It was the further contention of the 18th respondent (contesting respondent) that the application seeking leave to sue as pauper could be rejected not only on the grounds specified in Rule 5 of Order XXXIII CPC, but also on all grounds on which the plaint may be rejected under Order VII Rule 11 CPC and that hence, the plaint as well as Pauper O.P. were liable to be rejected as barred by limitation and also barred by the Principle of res judicata. 15. The revision petitioners/appellants, on the other hand, contended that the petitions for rejection of plaint had been filed belatedly after a lapse of 19 years from the date of original presentation of the plaint before the District Munsif Court, Cuddalore and that the Court shall not be justified in going into the merits of the case at the preliminary stage without restricting its consideration to the question whether the revision petitioners/appellants were entitled to the leave to sue as indigent persons. Claiming that they also did have a right in the suit property as legal heirs of Mammudhu, the revision petitioners/appellants and their mother Nagavalli made an attempt to challenge the decree dated 23.12.1989 passed by the learned Principal District Munsif, Cuddalore in O.S. No. 202 of 1982, which came to be confirmed by the first appellate Court in A.S. No. 69 of 1991 on 06.12.1991. The said suit was filed by the contesting respondent (first respondent) Saraswathi Ammal against the sons and their legal representatives and also their alienees in respect of the very same property for declaration of her title and recovery of possession. It was contended by her in the said former suit that the properties originally belonged to one Rathinasamy Chettiar and on his death, they came to the hands of his only son Arokiasamy Chettiar; that the said Arokiasamy Chettiar got a release deed from his sister's son by a document dated 29.05.1994 and thereby he became the absolute owner of the suit properties; that after the death of Arokiasamy Chettiar, the suit properties were purchased by the contesting respondent Saraswathi Ammal from the legal heirs of Arokiasamy Chettiar; that Arokiasamy Chettiar had leased out the suit properties to Mammudhu and after the death of Mammudhu, his sons Abimannan and Muthiyan alone continued as tenants; that when the vendors of the first (contesting) respondent Saraswathi Ammal demanded surrender of possession on the ground that the tenants had not paid the rent taking umbrage under Debt Relief Act and were also causing damage to the properties, they refused to comply with the demand; that the same was followed by a notice to quit; that for the said notice, a reply was sent by the said Abimannan and Muthiyan, sons of Mammudhu, denying the jural relationship of landlord and tenants and claiming that the properties were their ancestral properties and that the same was the reason why she had to file the said former suit for declaration of her title and for recovery of possession of the suit properties from the sons of Mammudhu and their alienees. 16. 16. The sons of Mammudhu and their successors-in-interest contested the said suit contending that the suit properties originally belonged to one Veeran; that after his death his son Mammudhu became the owner of the same and that on the death of Mammudhu, his sons derived title to the property only as owners. They had also contended that at no point of time they were tenants in respect of the suit property under Arokiasamy Chettiar or his successors in interest. Though the said suit was initially dismissed by the learned Principal District Munsif, Cuddalore by the judgment and decree dated 27.01.1987. Saraswathi Ammal preferred an appeal in A.S. No. 257 of 1987 on the file of the Sub-Court, Cuddalore. The said appeal was allowed on 31.10.1988, the decree of the trial Court was set aside and the suit was remanded back to the trial Court for fresh disposal. After such remand, the learned Principal District Munsif, Cuddalore, by a judgment and decree dated 23.12.1989 upheld the claim of title to the suit properties made by the first (contesting) respondent Saraswathi Ammal and granted a decree in her favour declaring her title and for recovery of the property. 17. As against the said judgment and decree dated 23.12.1989, the defendants in the said suit (O.S. No. 202 of 1982) filed an appeal in A.S. No. 69 of 1991 on the file of the Sub-Court, Cuddalore. The learned Principal Subordinate Judge, Cuddalore dismissed the said appeal by a judgment dated 06.12.1991 and confirmed the decree passed by the Principal District Munsif, Cuddalore in O.S. No. 202 of 1982 in favour of Sarasawathi Ammal. Thereafter, the defendants therein preferred a second appeal before the High Court in S.A. No. 907 of 1992. The same came to be dismissed by this Court on 13.07.1993. Within 12 days thereafter, the revision petitioners and the appellants in the Civil Miscellaneous Appeal and their mother filed a fresh suit on the file of the Court of District Munsif, Cuddalore for setting aside the decree passed in O.S. No. 202 of 1992 in favour of the contesting respondent Saraswathi Ammal. 18. The plaint filed by the revision petitioners and their mother was initially taken on file as O.S. No. 515 of 1992 on the file of the District Munsif and was made over to the Additional District Munsif, Cuddalore. 18. The plaint filed by the revision petitioners and their mother was initially taken on file as O.S. No. 515 of 1992 on the file of the District Munsif and was made over to the Additional District Munsif, Cuddalore. When the valuation of the relief sought for in the said suit was questioned by the Court fee examiner, on an enquiry conducted on a check slip, the value was fixed by getting a report of a Commissioner appointed for the said purpose. The value of the suit properties was fixed at Rs. 31,81,809.20 and the plaint was returned for presentation in proper Court together with sufficient Court fee based on the value fixed by the order of the Additional District Munsif as the value exceeded the pecuniary jurisdiction of the Munsif Court. The said order returning the plaint for presentation in proper Court came to be passed by the Additional District Munsif, Cuddalore on 17.09.2003. While returning the said plaint for presentation in proper Court, a time of one month was granted by the learned Additional District Munsif, Cuddalore. 19. In this case, it was contended on behalf of the contesting respondent that though the plaint was presented in the Sub-Court, Cuddalore on 16.10.2003, which was the proper Court having jurisdiction, as at that point of time the Sub-Court did have the unlimited pecuniary jurisdiction, the presentation of the plaint in the Sub-Court was made without paying proper Court fee on the basis of the valuation arrived at by the Additional District Munsif. The order of the Additional District Munsif, Cuddalore on the question of valuation was not challenged by way of revision or appeal. However, the representation was made without correcting the valuation and Court fee column in the original plaint along with a petition seeking permission to present the plaint as indigent persons. The same was not in proper form and the petitioners in the pauper O.P. did not present the same in person as mandated under Rule 3 of Order XXXIII C.P.C. The same came to be returned along with the original plaint several times pointing out defects and was re-presented only on 27.10.2003. The plaint came to be re-presented without amendment of the valuation and without payment of proper Court fee within the time granted in the order of the Additional District Munsif returning the plaint. The plaint came to be re-presented without amendment of the valuation and without payment of proper Court fee within the time granted in the order of the Additional District Munsif returning the plaint. The pauper O.P. was also not filed in proper form and complying with the conditions found in Rule 2 and 3of Order XXXIII of CPC. Hence, the contesting respondent claims that the presentation of the plaint in the Sub-Court, Cuddalore on 16.10.2003 was not proper presentation as Court fee payable on the plaint was not paid, besides the failure to correct the valuation and Court fee column. According to the contesting respondent, though the same came to be re-presented with an amended plaint containing a prayer seeking permission to present the plaint as indigent persons, such a presentation was not within the time granted by the Additional District Munsif and that even such a presentation was not in accordance with the requirements of Order XXXIII Rule 2 and 3 of the Code of Civil Procedure insofar as it was not presented along with a verified petition answering the requirements of Order XXXIII Rule 2. Hence, the plaint came to be returned requiring correction of valuation and Court fee columns and filing a petition in proper form seeking permission to sue as indigent persons. Only thereafter it was re-presented along with a verified petition and such a re-presentation came to be made on 27.10.2003. Therefore, as rightly contended by the learned counsel for the contesting respondent, the presentation of the plaint in the Sub-Court was not properly made as the presentation was beyond the period of time granted by the Additional District Munsif, Cuddalore in his order dated 17.09.2003 and no petition for condoning the delay came to be filed. The re-presentation of the said plaint in the Sub-Court on 27.10.2003 along with the petition containing the pleadings verified by the revision petitioners should be taken as the actual presentation of the plaint in the Sub-Court and it must be taken as a fresh presentation of the plaint in the Sub-Court. Meanwhile, amendment to the Civil Courts Act came to be made by Tamil Nadu Civil Courts and Chennai City Civil Court (Amendment) Act, 2003 (Tamil Nadu Act 1 of 2004) which came into force on 08.01.2004. Meanwhile, amendment to the Civil Courts Act came to be made by Tamil Nadu Civil Courts and Chennai City Civil Court (Amendment) Act, 2003 (Tamil Nadu Act 1 of 2004) which came into force on 08.01.2004. After the amendment of law relating to pecuniary jurisdiction, the plaint and the pauper O.P. were returned for presentation in the proper Court, namely the District Court since by virtue of the amendment, the value of the suit exceeded the pecuniary jurisdiction of the Sub-Court and came within the pecuniary original jurisdiction of the District Court. 20. The proposed pauper suit is sought to be filed for setting aside the decree dated 23.12.1989 made in O.S. No. 202 of 1982. Of course, the same got merged in the judgment and decree of the High Court dated 13.07.1992 in S.A. No. 907 of 1992. Hence, the limitation for cancellation of or setting aside the said decree shall be three years from the said date as per Article 59of the Limitation Act. Subsequently, due to the change in the jurisdiction brought about by Tamil Nadu Act 1, 2004, the plaint came to be re-presented in the District Court and after several returns, the application filed for permission to file the suit as indigent persons came to be taken on file as Pauper O.P. 134 of 2004. At that juncture, on receipt of notice, the contesting respondent appeared and filed a counter opposing the prayer made by the revision petitioners/appellants. Besides filing such a counter, she also filed the applications I.A. No. 3514 of 2004 and I.A. No. 3301 of 2010 for rejection of the plaint and pauper Original petition on the ground of limitation and bar of res judicata. The learned Principal District Judge, Cuddalore, after enquiry, held that the plaint sought to be filed as indigent persons was liable to be rejected as barred by limitation and the suit being barred by res judicata. On the very same grounds, the learned trial Judge has also rejected the pauper original petition. 21. The learned counsel for the revision petitioners/appellants would contend that the question of limitation and also the question of attraction of the principle of res judicata are mixed questions of law and fact and that hence, they ought not to have been decided in the applications filed under Order VII Rule 11 CPC and order XXXIII Rule 5 CPC. 21. The learned counsel for the revision petitioners/appellants would contend that the question of limitation and also the question of attraction of the principle of res judicata are mixed questions of law and fact and that hence, they ought not to have been decided in the applications filed under Order VII Rule 11 CPC and order XXXIII Rule 5 CPC. For the sake of convenience, Order VII Rule 11 is extracted hereunder: "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 on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court. (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 comply with the provision 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." According to the said rule, the plaint shall be rejected if the plaint does not disclose a cause of action. If the relief claimed is undervalued and being required by the Court to correct the valuation within a time to be fixed by the Court and the plaintiff fails to do so or if the relief is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff fails to supply requisite stamp paper within the time fixed by the Court or from the statement in the plaint it appears that the suit is barred by any law, the plaint shall be rejected. 22. 22. In this case, as pointed out supra, the plaint was found to be undervalued and it was returned for presentation after proper valuation and with proper Court fee in the proper Court. A time of one month was granted for doing so. It was not done within that period. However, the plaint was presented in the Sub-Court accompanied by a petition seeking leave to sue as indigent persons, on 16.10.2003. Though the petition filed under Order XXXIII Rule 1 was taken on file after several returns, it cannot be said that the application under Order XXXIII Rule 2 seeking permission to file the suit as indigent persons cannot be rejected as provided in Rule 5 of Order XXXIII CPC. Order XXXIII Rule 5 CPC is similar to Order VII Rule 11 CPC. While Order VII Rule 11 is attracted in the case of rejection of plaint, Order XXXIII Rule 5 deals with rejection of application filed for permission to sue as indigent persons. Order XXXIII Rule 5 reads as follows: "5. Rejection of application.- The court shall reject an application for permission to sue as an indigent person- (a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or (b) where the applicant is not an indigent person, or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in Order to be able to apply for permission to sue as an indigent person: Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or (d) where his allegations do not show a cause of action, or (e) Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter, or (f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or (g) where any other person has entered into an agreement with him to finance the litigation." We are not concerned with sub-clause (b) and (c). On the other hand, sub-clauses (a), (d), (e) and (f) shall stand clearly attracted. On the other hand, sub-clauses (a), (d), (e) and (f) shall stand clearly attracted. As pointed out supra, the original presentation of the Pauper O.P. was not in the proper form and in compliance of the conditions found in Rules 2 and 3 of Order XXXIII, insofar as the same was not originally filed with the verification of the petitioners and none of the petitioners were present at the time of the presentation of the pauper O.P. Of course, the said defects have been subsequently rectified. But, by the time the same came to be rectified, the time granted for presentation in the proper form had expired and hence, the presentation of the plaint along with the pauper O.P. would be taken as a fresh presentation and not a continuation of the proceedings in O.S. No. 515 of 1992, the plaint in which was returned on 17.09.2003. 23. The cause of action cited in the plaint is as follows: "The cause of action for the suit arose 60 years back when Veeran died and in the year 1975 when Mammudhu died and on 23.12.89 the date of decree in O.S. No. 202 of 1982 and on 6.12.91 when the appeal in A.S. No. 69 of 1991 was dismissed" 24. The plaint does not refer to the dismissal of S.A. No. 907 of 1992 preferred against the judgment in A.S. No. 69 of 1991 as the cause of action. By the doctrine of merger, the decree of the trial Court dated 23.12.1989 made in O.S. No. 202 of 1982 got merged with the decree of the first Appellate Court dated 06.12.1991 in A.S. No. 69 of 1991 and again it got merged with the decree of the second appellate Court (High Court) dated 13.07.1992 made in S.A. No. 907 of 1992. As pointed out supra, the plaint came to be filed on 27.07.1992, i.e., within 14 days from the date of decree of the High Court. Even then the revision petitioners/appellants had failed to cite the same as a cause of action. Therefore, it can be even said that the allegations made in the pauper Original petition do not disclose a cause of action for seeking a relief against the judgment of High Court in S.A. No. 907 of 1992. Even then the revision petitioners/appellants had failed to cite the same as a cause of action. Therefore, it can be even said that the allegations made in the pauper Original petition do not disclose a cause of action for seeking a relief against the judgment of High Court in S.A. No. 907 of 1992. The averments made in the plaint themselves will also show that the suit is barred by limitation and also by the principle of res judicata. 25. As pointed out supra, the limitation for filing the suit to set aside the decree passed in the former suit shall be three years from the date of the decree. Of course, the suit when originally filed before the District Munsif Court was filed within time. But when the plaint was returned, pointing out the under valuation and directing presentation in proper Court with proper valuation and proper Court fee, it was not presented in the proper Court in a proper manner since the pauper O.P. sought to be filed was not in accordance with Rules 2 and 3 of Order XXXIII CPC. Such defects came to be rectified only when it was re-presented on 27.10.2003 after the expiry of the time granted by the Additional District Munsif. Hence, such re-presentation alone shall be construed to be the presentation and as rightly pointed out by the learned counsel for the contesting respondent, re-presentation of petition on 27.10.2003 shall be taken as the fresh presentation of the pauper O.P. as well as the plaint. If the same is taken as the date of presentation, then the suit shall be hopelessly barred by law of limitation. 26. Further, the previous suit was between the contesting respondent and the brothers of the revision petitioners and also their alienees. If the same is taken as the date of presentation, then the suit shall be hopelessly barred by law of limitation. 26. Further, the previous suit was between the contesting respondent and the brothers of the revision petitioners and also their alienees. In the previous suit, the case of the contesting respondent was that the father of the revision petitioners became a tenant in respect of the suit properties under Arokiasamy Chettiar; that under the said Arokiasamy Chettiar, Mammudhu, the father of the revision petitioners was enjoying the property as a tenant; that after the death of Mammudhu, his two sons continued as tenants; that the contesting respondent who purchased the property, after the death of Arokiasamy Chettiar from his legal heirs, filed the former suit O.S. No. 202 of 1989 not only against the two sons of Mammudhu who continued as tenants after the death of Mammudhu, but also against the other four sons of Mammudhu and the alienees of the sons of Mammudhu, for declaration of her title and for recovery of possession. It is also obvious that the brothers of the revision petitioners and those claimed through them did represent the estate of Mammudhu and they contested the suit filed by the contesting respondent and succeeded at the first instance before the trial Court. Only after the remand made by the first appellate Court, the suit came to be decreed for both the reliefs and the same came to be confirmed by the first appellate Court and the second Appellate Court (High Court). All along the revision petitioners were watching the proceedings and they did not chose to stake a claim in the former suit. When the attempt made by their brothers and persons claiming through them failed ultimately in the High Court, the revision petitioners seem to have been set up by their brothers and those claiming under them, to file the proposed suit with the pauper O.P. in order to stall the execution of the decree obtained by the contesting respondent. 27. The questions involved in the former case and the present case are "whether Mammudhu was a tenant under the predecessor-in-title of the contesting respondent?" and "whether the contesting respondent is the absolute owner of the suit property?" Consequential relief sought for in both the suits are depending upon the resolution of the above said issues. 27. The questions involved in the former case and the present case are "whether Mammudhu was a tenant under the predecessor-in-title of the contesting respondent?" and "whether the contesting respondent is the absolute owner of the suit property?" Consequential relief sought for in both the suits are depending upon the resolution of the above said issues. Very same issues are involved in the suit in which the pauper O.P. has been filed. They have made the claim as the legal representatives of Mammudhu, whose estate was fully represented by their brothers in the former suit. Therefore, it is quite obvious that the bar of res judicata squarely stands attracted to the present suit sought to be filed in the pauper O.P. 28. So far as the contention of the learned counsel for the revision petitioners/appellants that the question of limitation and the question of res judicata are mixed questions of law and fact, which are not suitable to be resolved either under Order VII Rule11 or under Order XXXIII is concerned, the answer shall be that when the plaint pleading itself makes it clear that the bar of res judicata shall stand attracted, it shall be unnecessary and unethical to make the contesting respondent to face the trial. Even in such cases of mixed question of law and fact, the Court shall be justified in rendering a decision and pass an order either under Order VII Rule 11 or under Order XXXIII Rule 5 CPC when the facts are obvious from the pleadings. In this case it shall be pertinent to note that, excepting the contesting respondent, all other respondents have not contested the case and they are sailing with the revision petitioners/appellants. As such, it can be obvious that it is a collusive suit filed by the revision petitioners and their mother in collusion with the other respondents. The petitioners, having remained passive onlookers when the suit filed by the contesting respondent was hotly contested and prolonged for a period of 10 years and it saw the three fora, namely trial Court, first appellate Court and the second appellate Court, immediately after the dismissal of the second appeal, the present suit came to be filed. The petitioners, having remained passive onlookers when the suit filed by the contesting respondent was hotly contested and prolonged for a period of 10 years and it saw the three fora, namely trial Court, first appellate Court and the second appellate Court, immediately after the dismissal of the second appeal, the present suit came to be filed. The same will show that there cannot be anymore glaring example of abuse of process of Court than the case on hand, though the abuse of process of Court has not been cited as one of the grounds for rejection of plaint or pauper O.P. 29. The learned Principal District Judge, Cuddalore did not commit any error or mistake in allowing petitions I.A. No. 3514 of 2004 and I.A. No. 3301 of 2010 and rejecting pauper O.P. and also the plaint. As against the order rejecting the pauper O.P., besides filing C.R.P. No. 2937 of 2013 challenging the decreetal order passed in the same pauper O.P., the revision petitioners/appellants have filed C.M.A. No. 693 of 2013. The choice of filing one revision against the fair order and an appeal against the decreetal order itself will show that the revision petitioners are bent on causing multiplicity of proceedings, which has got to be curbed. Hence this Court comes to the conclusion that the learned Principal District Judge is right in holding that the pauper O.P. and the plaint were liable to be rejected under Order XXXIII Rule 5 C.P.C. and Order VII Rule 11 C.P.C., respectively on the grounds of limitation, res-judicata, abuse of process of Court, non-compliance with the Rules 2 and 3 of Order XXXIII of C.P.C. 30. In fact, an order rejecting the plaint is deemed to be a "decree" as per the explanation of the term found in Section 2(2)C.P.C. and a regular appeal and not a revision will lie. Without filing an appeal, a revision in C.R.P. No. 2936 of 2013 has been filed. On that ground also C.R.P. No. 2936 of 2013 is liable to be dismissed. 31. An order rejecting the pauper O.P. under Order XXXIII Rule 5 or Rule 7 C.P.C. is made appealable as an order (vide order XLIII Rule 1(na) CPC). Without filing an appeal, a revision in C.R.P. No. 2936 of 2013 has been filed. On that ground also C.R.P. No. 2936 of 2013 is liable to be dismissed. 31. An order rejecting the pauper O.P. under Order XXXIII Rule 5 or Rule 7 C.P.C. is made appealable as an order (vide order XLIII Rule 1(na) CPC). Besides filing C.M.A. No. 693 of 2013 challenging the order of rejection of the pauper O.P., the revision in C.R.P. No. 2937 of 2013 came to be filed against the fair and final order made in I.A. No. 3301 of 2010 filed under Order XXXIII Rule C.P.C. The revision is superfluous and hence liable to be dismissed. 32. For all the reasons stated above, this Court comes to the conclusion that both the civil revision petitions and the civil Miscellaneous Appeal are deserves to be dismissed and the orders of the Principal District Court, Cuddalore dated 12.10.2011 passed in I.A. No. 3514 of 2004 and I.A. No. 3301 of 2010 in P.O.P. No. 134 of 2004 cannot be termed either infirm or defective warranting interference by this Court in exercise of its power of revision. Both the revisions and the Civil Miscellaneous Appeal are deserves to be dismissed. 33. Accordingly, the Civil Revision Petitions and the Civil Miscellaneous Appeal are dismissed. No costs.