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2017 DIGILAW 601 (MAD)

L. Venkatraman v. Narasus Coffee Company

2017-03-10

N.SATHISH KUMAR

body2017
JUDGMENT : N. Sathish Kumar, J. Aggrieved over the decree and judgment passed by the learned Additional District Judge (Fast Track Court No. 1), Salem, dismissing the suit filed by the plaintiff for declaration and consequential permanent injunction, the present appeal came to be filed. 2. For the sake of convenience parties are referred to as arrayed before the trial Court. 3. The plaintiff filed the suit for declaration declaring his title to the suit property and also for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. During pendency of the suit, the defendant has filed an application to reject the plaint in I.A. No. 1278 of 2008 on the ground that the plaintiff is in possession of the suit property as a lessee and he was granted permission for construction of superstructure. While so, the plea of adverse possession made by the plaintiff is untenable. It was also contended that the plaintiff suppressed the lease deed executed in his favour which was registered before the competent registering authority, while so, the plea of adverse possession need not be considered. 4. Disputing the contention of the defendant, plaintiff/appellant has filed a counter denying the allegations made in the application filed for rejection of plaint. It is submitted that the plaint cannot be rejected at this stage based on the averments of the defendant. 5. The learned trial judge, considering the rival submissions of the plaintiff and the defendant, has allowed the application in I.A. No. 1278 of 2008 on 26.03.2009 and consequently rejected the plaint. 6. The respondent were served notice but they did not appear for them. Despite their names have been printed in the cause list, there is no appearance for them. Hence, this Court, after considering the entire material on record and on hearing the submission of the counsel for the appellant, is proceeding to dispose of the appeal on merits. 7. It is the contention of the learned counsel for the appellant that the learned trial Judge, without considering the fundamental principles of law in deciding the application to reject the plaint has simply taken note of the contention of the defendant in the written statement and the application to reject the plaint and allowed the application to reject the suit. It is the contention of the learned counsel for the appellant that the learned trial Judge, without considering the fundamental principles of law in deciding the application to reject the plaint has simply taken note of the contention of the defendant in the written statement and the application to reject the plaint and allowed the application to reject the suit. The learned trial Judge ought to have taken note of the averments in the plaint to conclude whether a cause of action is available for filing the suit or not. Even those allegations in the plaint have to be proved at the time of trial. Hence at this stage, trial Court cannot assume that the averments of the defendant are true to reject the plaint. Hence, he would submit that the Order passed by the court below in rejecting the plaint is not sustainable. 8. In support of the arguments, the learned counsel for the appellant placed reliance on the decision rendered in (Indrakumar Mahendran v. G.R. Pathmaraj) reported in 2010 (6) CTC 202 ; (Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and others) reported in (2004) 3 SCC 137 and (P.V. Guru Raj Reddy v. P. Neeradha Reddy and others) reported in (2015) 8 SCC 331 . 9. In the light of the above submissions now the point arise for consideration is whether the decree and Judgement of the trial Court in rejecting the suit is proper and sustainable in law. 10. On perusal of the plaint filed by the plaintiff/appellant herein, the plaintiff has pleaded that he is in possession of the suit property from the year 1967 and there is also an arrangement between the plaintiff and the defendant that the suit property to be given to the plaintiff absolutely. The plaintiff continued to be in possession of the suit property with the knowledge of the defendant. Therefore, he is in possession of the suit property for more than 38 years with the knowledge of the defendant, he has perfected his title to the suit property by way of adverse possession. Hence, he has filed the suit for declaration as well as for permanent injunction. 11. If the entire plaint averments are carefully read, it is clear that the plaintiff has pleaded the nature of his possession in the suit property, which is hostile to the interest of the defendant from the very beginning. Hence, he has filed the suit for declaration as well as for permanent injunction. 11. If the entire plaint averments are carefully read, it is clear that the plaintiff has pleaded the nature of his possession in the suit property, which is hostile to the interest of the defendant from the very beginning. Of course the plaintiff cannot use the plea of adverse as a sword as against the real owner but at the same time he has also pleaded his continuous possession and sought for recognising his possession by way of permanent injunction. All these factors have to be examined at the time of trial in the suit. However, the trial court, even before commencement of trial, at the threshold, rejected the suit. The suit filed by the plaintiff cannot be rejected only on considering the pleadings of the defence. It is well settled that the suit can be rejected only on the grounds set out under Order 7, Rule 11 of the Civil Procedure Code. It is relevant extract the Order 7, Rule 11 of Civil Procedure Code. "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 upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (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." 12. Thus, it is evident that unless the suit is without a cause of action or it has been filed in a Court which has no jurisdiction or proper court fee has not been paid, a suit can be rejected. 13. In the decision relied on by the learned counsel for the appellant in 2010 (6) CTC mentioned supra, this Court held as follows:- "14 (ii) The Hon'ble Supreme Court while examining the object of Order 7, Rule 11 (a), C.P.C. Held that the idea underlying the said provision is that when no cause of action is disclosed in plaint, the Court will not unnecessarily protract the hearing of the Suit and that a party should not be unnecessarily harassed in a Suit. Further, for the purpose of invoking the said power, the Court has to read the plaint to find whether it discloses a cause of action and if it does, then the Plaint cannot be rejected by the Court by exercising its power conferred under Order 7, Rule 11(a), C.P.C. It is a trite law that cause of action is a bundle of facts and whether a plaint discloses a cause of action is a question of fact, which has to be gathered based on the averments made in the plaint in its entirety by taking those averments to be correct. The Hon'ble Supreme Court in Mayor (H.K.) Ltd. and others v. Owners Parties, Vessel M.V. Fortune express and others, AIR 2006 SC 1828 held that so long as the Plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge, the plaintiff may not succeed, cannot be a ground for rejection of the Plaint. The Hon'ble Supreme Court in the case of Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success I and another, 2004 (9) SCC 512 , elaborately dealt with the issue and held as follows" : 14. Similarly, in the decision rendered in (2015) 8 SCC 331 relied on by the counsel for the appellant, it was held as follows:- "Civil Procedure Code, 1908 - Order 7, Rule 11 - Rejection of plaint - Power conferred under Order 7, Rule 11 CPC in respect of - Is a drastic nature-conditions precedent to execise of said power are stringent - Relevant considerations while exercise of that power - Reiterated - While execising of power under Order 7, Rule 11 CPC, only the averments in plaint have to be read as a whole - Stand of defendants in written statement or in application for rejection of plaint is wholly immaterial at that stage - Plaint can be rejected only if the averments made there in ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law". 15. Therefore, it is evident from the provision of law as well as the decisions rendered by the Honourable Supreme Court as well as this Court mentioned supra that only if the plaint filed by the plaintiff has not fulfilled the ingredients set out in Order 7, Rule 11 of CPC, the suit can be rejected by the Court. It is not the case of the defendant that the suit is barred by law or the plaintiff has under valued the suit properly. It is also not the case of the defendant that there is no cause of action at all for filing the suit. It is well settled that for invoking the power under Order 7, Rule 11(a) of Civil Procedure Code, the Court has to read the plaint as a whole to find out whether it discloses a cause of action and if it does, then, the plaint cannot be rejected by the Court. The cause of action is a bundle of facts which can be gathered based on the averments made in the plaint in its entirety. 16. The cause of action is a bundle of facts which can be gathered based on the averments made in the plaint in its entirety. 16. In the Judgment reported in (2004) SCC 137, the Hon'ble Supreme Court reads as follows : E. Civil Procedure Code, 1908 - Order 7, Rule 11 - Nature and Scope - Stage at which objections under, may be raised - Held, the trial Court can exercise the power at any stage of the suit - Basis on which questions under to be determined - Held, for the purposes of deciding an application Under Order 7 Rules 11 (a) and (d) the averments in the plaint are germane - Pleas taken in the WS would be wholly irrelevant at that stage - Instead, a duty is cast on court to perform its obligations in rejecting the plaint hit by any of the infirmities under Section (a) to (d), even without intervention of the defendant. 17. From the above Judgment, it is very clear that at the time of considering the application Order 7, Rule 11 of Civil Procedure Code, only the plaint averment has to be read as a whole and the plea of the defendant in the written statement or application for rejection of plaint is wholly immaterial. Taking into consideration the well said principle of law and the Order passed by the Court below, this Court is of the view that the learned trial Judge in fact passed the order based on the defence theory which is legally not sustainable. The trial Court has not even referred to the averments made in the plaint to find out whether a cause of action arose for maintaining the suit. Further only on the basis of the defence theory the suit has been rejected without even looking into the entire averments of the plaint. Such approach by the learned trial court is unsustainable in law. When the plaint filed by the plaintiff in this case clearly disclosed the various facts and also various reliefs whether he is able to succeed or not is based on the cause of action for filing the suit, which can be ascertained only after a full fledged trial. At this stage, the trial Court cannot consider the plea of the defendants to conclude that the suit is not maintainable. At this stage, the trial Court cannot consider the plea of the defendants to conclude that the suit is not maintainable. Whether the plaintiff has perfected adverse possession or whether where such plea is maintainable or whether the plaintiff is entitled for the relief of permanent injunction is a matter of evidence. Hence the approach of the Learned Trial Court in rejecting the application is unsustainable law. Accordingly, this point is answered. 18. In the result, the appeal is allowed. The decree and Judgment of the Trial Court passed in I.A. No. 1278 of 2008 is hereby set aside and the learned Trial Judge is directed to dispose of the suit on merits within a period of four months from the date of receipt of the copy of this Judgment. The Registry is directed to communicate the Order without any delay. However, there shall be no order as to costs.