Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1839 (MAD)

P. Ganesan v. S. Backiyalakshmi

2021-07-02

K.MURALI SHANKAR

body2021
ORDER : The Civil Revision Petition is directed against the order passed in C.M.A.No.14 of 2019, dated 25.10.2019 on the file of the Subordinate Court, Melur, challenging the order passed in I.A.No.1930 of 2017 in O.S.No.108 of 2016, dated 19.11.2018 on the file of the District Munsif Court, Melur, rejecting the plaint under Order 7 Rule 11 CPC. 2. The revision petitioner is the appellant in C.M.A.No.14 of 2019 and the petitioner/plaintiff in I.A.No.1930 of 2017 in O.S.No.108 of 2016 and the respondent herein is the respondent/defendant. 3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking before the trial Court. 4. The first item of the suit property was originally owned by the plaintiff's father Balusamy Servai and after his death on 03.12.1996, the said property was devolved on the plaintiff. Regarding the second item of the suit property, the plaintiff purchased the same from the defendant vide sale deed, dated 15.03.1995. Admittedly, the plaintiff's mother is the sister of the defendant's husband. The plaintiff, claiming to be in possession of the two items of the suit property and by alleging that the defendant and her men attempted to interfere with his possession, filed the suit in O.S.No. 108 of 2016, claimed permanent injunction against the defendant and her men from in any manner interfering with his peaceful possession and enjoyment of the suit property. Though the defendant has admitted the plaintiff's title over the suit property, has taken a specific defence that she has been the cultivating tenant in respect of the suit property. 5. The plaintiff has also filed an application in I.A.No.233 of 2016 for temporary injunction and the learned District Munsif, after enquiry, has passed an order dated 14.02.2017, granting temporary injunction. Aggrieved by the said order, the defendant has preferred an appeal in C.MA.No.6 of 2017 and during the pendency of the said appeal, the plaintiff as well as the defendant have filed the applications for reception of additional evidence and the learned Subordinate Judge has passed an order dated 21.06.2017, setting aside the fair and decreetal order passed in I.A.No.233 of 2016 and remanded the matter to the trial Court and directed the trial Judge, to consider the documents produced by both sides and to decide the petition afresh. Not satisfied with the said order of remand, the plaintiff has preferred a revision in CRP(MD)No.1835 of 2017, and this Court (Hon'ble.Mrs.Justice.J.NISHA BANU.,) has passed the order on 16.02.2018, allowing the revision and thereby setting aside the orders passed in CMA.No.6 of 2017 and consequently, restored the order of the trial Court in I.A.No.233 of 2016. 6. Thereafter, the defendant has filed the review application in Rev.Appl.(MD)No.24 of 2018, to review the order passed in CRP.(MD)No. 1835 of 2017 and the same was ordered to be dismissed by this Court on 07.03.2018. The defendant has then filed appeals before the Hon'ble Supreme Court in S.L.P.(C)Nos.9481 and 9482 of 2018, challenging the orders passed in Civil Revision Petition as well in the Review application and that the said SLPs were dismissed on 20.04.2018. 7. Meanwhile, the defendant, has filed a petition in T.R.No.3 of 2016, before the Tahsildar cum Tenancy Record Officer, Madurai, North Taluk, to record her as the cultivating tenant under the Tamil Nadu Agricultural Lands Records of Tenancy Rights Act and the Tahsildar cum Tenancy Record Officer, has passed an order dated 25.07.2017, recording her as the cultivating tenant under the Tamil Nadu Cultivating Tenancy Act. Aggrieved by the said order, the plaintiff has filed a writ petition in W.P.(MD)No.20493 of 2017, for quashing the order passed in T.R.No.3 of 2016, dated 25.09.2017 and subsequently, the plaintiff has sought permission of this Court to withdraw the Writ Petition with liberty to move the Revenue Appellate Court and accordingly, the Writ Petition was ordered to be dismissed as withdrawn vide order dated 07.11.2017, directing the plaintiff to file an appeal within 15 days from the date of receipt of copy of that order and directed the appellate authority to entertain the same without reference to limitation. 8. According to the plaintiff, as per the order of this Court in W.P.(MD)No.20493 of 2017, he filed an appeal in A.P.No.9 of 2017 and the same is pending on the file of the Revenue Court, Madurai. 9. 8. According to the plaintiff, as per the order of this Court in W.P.(MD)No.20493 of 2017, he filed an appeal in A.P.No.9 of 2017 and the same is pending on the file of the Revenue Court, Madurai. 9. In the meantime, the defendant, claiming to be the cultivating tenant as per the order passed in T.R.No.3 of 2016, dated 25.09.2017 by the Tahsildar cum Tenancy Record Officer and alleging that the Civil Court has no jurisdiction in view of the specific bar under Section 6 of Tamil Nadu Cultivating Tenants Protection Act and Section 16(A) of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, filed the petition in I.A.No.1930 of 2017, under Order 7 Rule 11 CPC for rejection of plaint. The learned District Munsif after enquiry, has passed an order on 19.11.2018, allowing the application and thereby rejected the plaint. Aggrieved by the order of rejection of plaint, the plaintiff has filed an appeal in CMA.No.14 of 2019 and the learned Additional Subordinate Judge has passed the impugned order on 25.10.2019, dismissing the appeal and thereby, confirmed order passed in I.A.No.1930 of 2017 in rejecting the plaint. Aggrieved by the order of dismissal, the plaintiff has come forward with the present revision. 10. The points for consideration are : (i) Whether the present civil revision petition filed against the order passed in CMA.No.14 of 2019 and the Civil Miscellaneous Appeal, which was against the order of rejecting the plaint are legally maintainable ? (ii) Whether the decision of the Courts below that the jurisdiction of Civil Court is barred under Section 6 of Tamil Nadu Cultivating Tenants Protection Act and Section 16(A) of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act are valid and in accordance with law? (ii) Whether the decision of the Courts below that the jurisdiction of Civil Court is barred under Section 6 of Tamil Nadu Cultivating Tenants Protection Act and Section 16(A) of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act are valid and in accordance with law? 11.The main contention of the plaintiff is that the defendant has not produced any documents or materials to show that she had taken the property on lease from the plaintiff or his father, that the Tahsildar cum Tenancy Record Officer has not at all conducted any enquiry and has not at all heard the submissions on the side of the plaintiff, that since there was no sitting of the Tahsildar cum Tenancy Record Officer on 31.08.2017, the plaintiff's counsel has filed counter statement in the Office and the matter was adjourned to 21.09.2017, that subsequently to the shock and surprise of the plaintiff, he received the order dated 25.09.2017 in T.R.No.3 of 2016 and came to know that the Tahsildar cum Tenancy Record Officer had fraudulently passed final orders without even conducting any enquiry and that though the Tenancy Record Officer, who passed the order was transferred with effect from 30.09.2017, the order had been sent by post to the plaintiff on 27.10.2017 and the same would go to show that the said order had been subsequently prepared and antedated by him. 12. The plaintiff has attacked the order of Tahsildar cum Tenancy Record Officer by levelling serious charges of fraud, abuse of process of law and also the corrupt means. Admittedly, the plaintiff by raising all the above grounds, has filed the Writ Petition in W.P.(MD)No.20493 of 2017 before this Court for quashing the said order, but, as already pointed out, he sought permission of this Court to withdraw the Writ Petition and accordingly, the Writ Petition was ordered to be dismissed as withdrawn with liberty to file an appeal before the Revenue Court. 13. As already pointed out, it is the specific case of the plaintiff that in pursuance of the order passed in W.P.(MD)No.20493 of 2017, he filed the appeal before the Revenue Court in A.P.No.9 of 2017 and the same is pending. If that be so, this Court is at loss to understand as to how the plaintiff can raise all those grounds of attack in the present revision. If that be so, this Court is at loss to understand as to how the plaintiff can raise all those grounds of attack in the present revision. Admittedly, the competent authority i.e., Tahsildar cum Tenancy Record Officer, by observing that he examined and recorded the statement of two witnesses and after perusing the pleadings of both the parties and the documents filed by them, passed the order. Whether the Tahsildar cum Tenancy Record Officer has conducted proper enquiry or not?, Whether the plaintiffs was given reasonable opportunity of being heard ?, Whether there was any fraudulent activity ? are the aspects that can be gone into and decided only by the Appellate forum i.e., the Revenue Court, where the appeal is pending. 14. The next contention of the plaintiff is that he was granted injunction by the trial Court and the same was subsequently confirmed by the High Court and lastly by the Supreme Court, that the learned Munsif and the Appellate Court have failed to consider the same and that they have also failed to consider that injunction was granted and later confirmed on the ground that he has been in possession of the suit property. 15. No doubt, as rightly contented by the learned counsel for the plaintiff, he was granted temporary injunction and the same was confirmed by this Court. As rightly contended by the learned counsel for the defendant, the temporary injunction was granted, as the plaintiff was able to show the prima facie case in his favour and that is entirely different and the same has nothing to do, as the competent Court has declared that the defendant is the cultivating tenant. 16. As rightly pointed out by the learned counsel for the defendant, this Court, in its order passed in CRP(MD)No.1835 of 2017, has specifically observed that whether the respondent is a cultivating tenant or not, has to be decided before the Court below during the trial and that since the prima facie case has been made out by the petitioner, the learned trial Judge had granted interim order and that it is for the respondent to prove her case by conducting trial. 17. Simply because the petitioner was granted temporary injunction, it cannot be said that the trial Court or the Appellate Court are de-barred from looking into the subsequent events nor the orders passed by the competent authorities. 17. Simply because the petitioner was granted temporary injunction, it cannot be said that the trial Court or the Appellate Court are de-barred from looking into the subsequent events nor the orders passed by the competent authorities. At this juncture, it is necessary to refer Section 6 of Tamil Nadu Cultivating Tenants Protection Act and Section 16(A) of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act. “Section 6 : No Civil Court shall,. except to the extent specified in section 3(3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by this Act.” Section 16(A) : “No Civil Court shall have jurisdiction in respect of any matter which the record officer, the District Collector or other officer or authority empowered by or under this Act has to determine and no injunction shall be granted by any court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by under this Act.” 18. As rightly contended by the defendant side, the Revenue Divisional Officer alone is empowered to determine the dispute raised under the Tamil Nadu Cultivating Tenants (Protection) Act and the Civil Court has no jurisdiction in respect of the said matters and whereas under Section 16(A) of the Tamil Nadu Agricultural Land Tenancy Act, District Collector or any Officer empowered alone has to determine and Civil Court has no jurisdiction in respect of the said matters and under both the Acts, no injunction shall be granted by any Court in respect of any action taken or to be taken under the said Acts. As rightly observed by the Courts below, the Civil Court has absolutely no jurisdiction to decide as to who is the cultivating tenant and the Civil Courts jurisdiction is clearly ousted by the aforesaid two provisions. 19. Considering the above, the finding of the trial Court that the plaint is liable to be rejected under Order 7 Rule 11 of Code of Civil Procedure, and confirmed by the Appellate Court cannot be found fault with. 20. Admittedly, the petition filed under Order 7 Rule 11 C.P.C., was allowed and thereby the plaint was ordered to be rejected. Considering the above, the finding of the trial Court that the plaint is liable to be rejected under Order 7 Rule 11 of Code of Civil Procedure, and confirmed by the Appellate Court cannot be found fault with. 20. Admittedly, the petition filed under Order 7 Rule 11 C.P.C., was allowed and thereby the plaint was ordered to be rejected. Challenging the said order, the plaintiff, admittedly, has filed Civil Miscellaneous Appeal invoking Order 43 Rule 1(A) of CPC. At the out set, it is necessary to refer Section 2(2) of CPC, which defines a decree. (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final; 21. Section 96 of CPC provides appeals from original decrees. Order 43 provides appeal from orders and 43(1) (A) deals with the right to challenge non-appealable orders in appeal against decrees. Section 104 CPC, provides appeals from orders. It is pertinent to mention that neither Order 43 nor Section 104 provides any appeal from the order rejecting the plaint. As already pointed out, Section 2(2) of CPC specifically contemplates that it shall be deemed to include the rejection of a plaint. Hence, the order rejecting the plaint under Order 7 Rule 11 CPC, has the force of the decree and the only remedy available is to prefer an appeal under Section 96 r/w Order 41 of CPC. 22. It is necessary to refer the decision of this Court in Govindarajan Padayatchi Vs. Premananda Vijayakumaran and others reported in 2013(5)LW 331. Hence, the order rejecting the plaint under Order 7 Rule 11 CPC, has the force of the decree and the only remedy available is to prefer an appeal under Section 96 r/w Order 41 of CPC. 22. It is necessary to refer the decision of this Court in Govindarajan Padayatchi Vs. Premananda Vijayakumaran and others reported in 2013(5)LW 331. In that case, as against the order allowing the petition under Order 7 Rule 11 CPC, the plaintiff preferred a Civil Revision Petition before this Court and the same was dismissed as not maintainable, holding that an appeal only would lie as against the order rejecting the plaint. Meanwhile, the plaintiff has filed an appeal before this Court in A.S.No.708 of 2012, against the order rejecting the plaint and also filed a Civil Miscellaneous Appeal. The relevant paragraphs are extracted hereunder: “9. A careful reading of the said clause will make it clear that the definition of decree shall include rejection of a plaint. The rider provided thereto shows that definition of decree shall not include any adjudication from which an appeal lies as an appeal from orders will make it clear that order rejecting the plaint which is deemed to be a decree shall not be included in the category of orders which are appealable under order XLIII C.P.C. 10. For the above said reasons, this Court holds that the order passed in I.A.No.3 of 2012 holding that the plaint is liable to be rejected itself shall be deemed to be a decree and if at all any judgment and decree has been pronounced consequent to such order, that will be only superfluous and an appeal filed against the rejection of the plaint as a decree shall be enough to challenge the findings made in the interlocutory application to the effect that the plaint is liable to be rejected. Since challenge is already made in the appeal in A.S.No.708 of 2012, the present Civil Miscellaneous Appeal is misconceived and hence, the same is dismissed. The appellant shall work out his remedy in the appeal suit, by raising all the grounds of challenge to the rejection of the plaint. 23.The learned counsel for the defendant has relied on the decision of this Court passed in CRP(PD)(MD)No.4548 of 2010 in G.Gopal Samy represented by Power Agent Vs. The appellant shall work out his remedy in the appeal suit, by raising all the grounds of challenge to the rejection of the plaint. 23.The learned counsel for the defendant has relied on the decision of this Court passed in CRP(PD)(MD)No.4548 of 2010 in G.Gopal Samy represented by Power Agent Vs. Ramasay, dated 29.08.2019 to canvass the stand that no revision would lie against the order rejecting the plaint. This Court by referring the various decisions, has held that where an order has the effect of bringing about a finality to the rights of a party such an order is a decree and only an appeal would lie against the said order and consequently, dismissed the revision. 24. The learned counsel for the revision petitioner would submit that the plaintiff at the first instance has filed the appeal under Section 96 of CPC, but the first Appellate Court had returned the papers, directing the plaintiff to file only as a Civil Miscellaneous Appeal and that thereafter, the plaintiff was forced to file the Civil Miscellaneous Appeal. 25. The learned counsel for the defendant would submit that when the plaintiff expects this Court to accept that he filed appeal only under Section 96 CPC before the Sub Court initially, he ought to have filed the Second Appeal under Section 100 CPC, that the plaintiff has purposely invoked Order 43 Rule 1(A) and continued the illegality and that thereafter, he filed the present revision instead of filing the Second Appeal and that therefore, the present revision is neither maintainable not admissible. 26. Even assuming that the Appellate Court has returned the papers directing him to file the Civil Miscellaneous Appeal, he ought to have insisted that regular appeal under Section 96 CPC would only lie and if still the Court insist him, then he should have approached the higher forum challenging the return made by the first Appellate Court. 27. The learned counsel for the plaintiff would submit that since the plaintiff has filed his civil miscellaneous appeal only as per the directions of Principal Subordinate Court, the impugned order passed in civil miscellaneous appeal is to be set aside and the appellate Court has to be directed to convert the civil miscellaneous appeal as regular appeal and to proceed in accordance with law. Even if the said course suggested by the learned counsel for the plaintiff is accepted, this Court is at loss to understand as to what the plaintiff is going to canvass in the regular appeal, as the competent authority has already decided the issue and he cannot have any other point or aspect to be canvassed. 28. It is the settled position of law that the Civil Miscellaneous Appeal filed under Order 43 CPC, challenging the order rejecting the plaint is legally not maintainable and consequently, the revision challenging the order passed in Civil Miscellaneous Appeal is also legally unsustainable. Viewing from any angle, the Civil Revision Petition is not sustainable both in law and on facts and hence, the same is liable to be dismissed. 29. In the result, the Civil Revision petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.