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2016 DIGILAW 1345 (MAD)

Durga Prasath v. Vasantha @ Vasanthammal

2016-03-29

V.M.VELUMANI

body2016
ORDER : 1. The Civil Revision Petition is filed against the fair and decreetal order, dated 30.11.2015 passed in I.A.No.94 of 2014 in O.S.No.212 of 2013 on the file of the District Munsif Court, Thiruvaiyaru. 2. The revision petitioner is the defendant. The respondent is the plaintiff. 3. The respondent /plaintiff filed a suit in O.S.No.212 of 2013 for declaration to declare that there is a pathway which is existing in the East end of the defendant's property upto the plaintiff's cultivating lands and consequential injunction. The petitioner filed I.A.No.94 of 2014 under Order 7 Rule 11 CPC to reject the plaint on the ground that the respondent filed a suit in O.S.No.79 of 2010 for permanent injunction in respect of the very same property. At the time itself, the respondent ought to have included the property sought for in the present suit. Therefore, the suit is hit under Order 2 Rule 2 of CPC. The respondent filed counter affidavit and stated that after filing of the suit, the petitioner closed the pathway in the southern side and thereby, prevented the respondent from using the pathway to reach his land. The cause of action has arose when the petitioner closed the pathway after filing of the suit. The learned Judge after considering the facts and materials on record dismissed the application. Against that order, the petitioner has filed the present revision. 4. The learned counsel appearing for the petitioner contended that the learned Judge failed to see that the relief sought for in the present suit was available to the respondent even at the time of filing of the earlier suit. It is not correct to state that the cause of action has arisen, only after filing of the earlier suit. The present suit is hit by Order 2 Rule 2 of CPC and the learned Judge ought to have allowed the application filed by the petitioner to reject the plaint. He has also relied on the Judgment reported in 2015 (7) MLJ 648 (P. Rajesh, rep. by his Power of Attorney N. Dhanalakshmi Vs. V. Shanthi and another), relevant para 39, wherein it has been held as follows:- 39. He has also relied on the Judgment reported in 2015 (7) MLJ 648 (P. Rajesh, rep. by his Power of Attorney N. Dhanalakshmi Vs. V. Shanthi and another), relevant para 39, wherein it has been held as follows:- 39. In the present case, the Appellant / Plaintiff had not obtained the permission to sue in respect of the reliefs sought for by him in the suit in C.S.No.650 of 2012 when he withdrew the earlier two suits i.e. O.S.No.6 of 2010 and O.S.No.20 of 3023 on the file of the trial Court. Moreover, the Appellant / Plaintiff had described the cause of action by filing C.S.650 of 2012 on the file of this Court at para 6 by mentioning the same in an omnibus and wholesale fashion, that he is permanently residing at Chennai within the jurisdiction of this Court; where all transactions taken place within the jurisdiction of this Court. In short, he had filed the third suit C.S.650 of 2012 on the same cause of action which arose for the two earlier suits viz., O.S.No.6 of 2010 and O.S.No.20 of 2012 on the file of the trial Court is clearly impermissible in the eye of law. 5. I have heard the learned counsel appearing for the petitioner and perused the materials on record. 6. From the records it is seen that the respondent filed O.S.No.79 of 2010 on the file of Sub Court, Thanjavur restraining the petitioner from trespassing into the petitioner's land. While the suit in O.S.No.79 of 2010 was pending, according to the respondent, the petitioner closed the pathway on the southern side and prevented the respondent from entering into his land. Therefore, the relief sought for in the earlier suit as well as in the present suit is not one of the same and the cause of action for present suit arose only after filing of the earlier suit, when the petitioner closed the pathway, on the southern side, therefore, the present suit is not hit by Order 2 Rule 2 of CPC. The judgment relied on by the learned counsel for the petitioner is not applicable to the facts of the present case. 7. In such circumstances, the learned Judge considered all the materials on record in proper perspective and has given valid and cogent reasons for dismissing the Interlocutory Application. The judgment relied on by the learned counsel for the petitioner is not applicable to the facts of the present case. 7. In such circumstances, the learned Judge considered all the materials on record in proper perspective and has given valid and cogent reasons for dismissing the Interlocutory Application. Further the learned Judge has exercised his power conferred on him in proper perspective and there is no irregularity or illegality warranting interference by this Court. 8. In the result, the Civil revision petition is dismissed confirming the impugned order dated 30.11.2015 passed in I.A.No.94 of 2014 in O.S.No.212 of 2013, on the file of the District Munsif Court, Thiruvaiyaru. No costs. Consequently, connected Miscellaneous Petition is closed.