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2022 DIGILAW 963 (MAD)

C. P. Singaravelu v. S. Kandasamy

2022-04-20

S.ANANTHI

body2022
JUDGMENT (Prayer: Civil Revision Petition under Article 227 of Constitution of India, to allow the Civil Revision Petition by setting aside the fair order and decreetal order dated 22.11.2018 passed in I.A.No.95 of 2018 in O.S. No.1107 of 2017 on the file of the learned II Additional District Munsif, Tiruchirappalli and further allow the I.A.No.95 of 2018 in O.S.No.1107 of 2017 by rejecting the plaint in O.S.No.1107 of 2017 on the file of the learned II Additional District Munsif, Tiruchirappalli.) 1. This Civil Revision Petition has been filed by the revision petitioner to set aside the order, dated 22.11.2018 in I.A.No.95 of 2018 in O.S.No.1107 of 2017 passed by the learned II Additional District Munsif, Tiruchirappalli. 2. The parties are referred to as per the rank mentioned before the Court below. 3. The plaintiff has filed a suit in O.S.No.1107 of 2017 for the following reliefs: (i) for permanently restrain the defendants, men, agents from in any manner interfering with the plaintiffs possession and enjoyment of the suit A, B, C, D Lane as its absolute owner subject to the limited right of easement of user and enjoyment of the said suit lane by the 1st defendant of user and enjoyment of the said suit lane by the 1st defendant to his property situated in T.S.No. 77/2 and 78 part to an extent of 266.375 sq.ft. Only for his ingress and egress over the suit lane to have access to the big bazar street and to re-pass to his property in T.S.No.77/2 and 78 part. (ii).To further permanently restrain the defendant, men and agent from in any manner elongating the said suit A, B, C, D lane further to the west of point C and D by break opening the western boundary north-south compound wall with a view to use the suit ABCD wall to the illegally constructed and stealthily operated bar in T.S.76/1 and 76/2”. 4. The revision petitioner/1st defendant herein has filed a petition in I.A.No.95 of 2018, under Order 7 Rule 11 and Section 151 of Civil Procedure Code, for rejection of plaint on the ground that already A, B, C, D lane is declared as a common pathway between one of the plaintiff and vendor of this defendant. It was also confirmed by the Appellate Court in A.S.No.25 of 1997. No second appeal was filed. The said petition was also dismissed on 22.11.2018. It was also confirmed by the Appellate Court in A.S.No.25 of 1997. No second appeal was filed. The said petition was also dismissed on 22.11.2018. Aggrieved over the same, the revision petitioner is before this Court. 5. So, the present suit is hit by Res judicata. 6. Heard on either side. Perused the material documents available on record. 7. This Civil Revision Petition is filed on the ground that the Court below has not at all considered the earlier suit in O.S.No.1130 of 1996 filed by the 1st respondent and the father of the 2nd respondent for declaration and injunction was dismissed. No rights will accrue on the respondent Nos.1 & 2 to make any other claim in respect of the very same ABCD suit lane. The Court below while answering the issue in O.S.No.1130 of 1996 has categorically held that the suit ABCD lane is a common lane, does not belong to the 1st respondent and the father of the 2nd respondent. No restricted right was given in the said decree as alleged by the respondent Nos.1 & 2. When the rights of the parties are crystalised and the same is confirmed by the competent courts the vexatious suit if filed is to be nipped in the bud and if it is taken on file the same is liable to be rejected. When the plaint apparently discloses the decree in O.S.No.1130 of 1996 the bogus claim of the respondent Nos.1 & 2 in O.S.No.1107 of 2017 ought not to have entertained and the lower court ought to have rejected the plaint in O.S.No.1107 of 2017. The cause of action alleged is only an illusion and the suit in O.S.No.1130 of 2017 is also liable to be dismissed by exercising the power under Order X of Civil Procedure Code. 8. The plaintiff has stated that the 1st defendant had given only easementary rights in the suit lane. The trial Court has also wrongly construed the Judgment and decree in O.S.No.1130 of 1996. 9. In O.S.No.1130 of 1996 the suit lane was declared as a common lane. The plaintiff cannot go beyond the decree since one of the present plaintiff is plaintiff to the suit in O.S.No.1130 of 1996. Now, he claimed rights in A, B, C, D lane as his absolute property. So, it is clearly abuse of process of Court. 9. In O.S.No.1130 of 1996 the suit lane was declared as a common lane. The plaintiff cannot go beyond the decree since one of the present plaintiff is plaintiff to the suit in O.S.No.1130 of 1996. Now, he claimed rights in A, B, C, D lane as his absolute property. So, it is clearly abuse of process of Court. Eventhough the 1st defendant did not plea, it is only question law. 10. The ingredients of Order VII Rule 11(d) of Civil Procedure Code, is extracted hereunder: “11. Rejection of Plaint: (d) where the suit appears from the statement in the plaint to be barred by any law;”. 11. If the plaint is barred by any law it can be rejected. 12. The ingredients of Section 11 of Civil Procedure Code is extracted hereunder: “Resjudicata : No Court shall try any suit or issue in which matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue subsequently raised and has been heard and finally decided by such court.” 13. In the case on hand, the issue in the suit was already decided in O.S.No.1130 of 1996 between the predecessor of the 1st defendant and the same plaintiff. 14. As per various Judgments the Resjudicata is mixed question of facts and law. So, it cannot be decided under Order 7 Rule 1 of Civil Procedure Code. But, here reading the Judgment in O.S.No.1130 of 1996 clearly shows that the issue was already decided. 15. But, there is an another cause of action the 1st defendant try to break the compound wall. So there is another 'C' prayer in suit. “C. To further permanently restrain the defendant men and agent from in any manner elongating the said suit A, B, C, D lane further to the west of point C and D by break opening the western boundary north-south compound wall with a view to use the suit ABCD wall to the illegally constructed and stealthily operated bar in T.S.76/1 and 76/2.” 16. The relevant portion of the Judgment reported in AIR 2017 SC 4477 , Sejal Glass Ltd. V. Navilan Merchants Pvt. Ltd, is extracted hereunder: ..... The relevant portion of the Judgment reported in AIR 2017 SC 4477 , Sejal Glass Ltd. V. Navilan Merchants Pvt. Ltd, is extracted hereunder: ..... “It is settled-law that the plaint as a whole alone can be rejected under Order VII, Rule 11. In Maqsud Ahmad v. Mathra Datt & Co., AIR 1936 Lahore 1021 at 1022, the High Court held that a note recorded by the trial Court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms:- “There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial Court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code.” 17. Nipping of a false or vexatious suit in the bud is one aspect of the matter. The relevant portion of the Judgment reported in 1977 (4) SCC 467 , T.Arivandandam v. T.V.Satyapal and another, is extracted hereunder: .... “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage”. 18. But as per new cause of action and new relief, the suit can be maintained after strucking off the (b) relief in the plaint and cause of action supporting the relief. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage”. 18. But as per new cause of action and new relief, the suit can be maintained after strucking off the (b) relief in the plaint and cause of action supporting the relief. The rights of disputed wall is not yet decided. 19. The ingredients of Order VI Rule 16 of Civil Procedure Code, is extracted hereunder: “16. Striking out pleadings: The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading:- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c). which is otherwise an abuse of the process of the court. Judgment: 365. Parties should not offend the rules of pleadings by making averments or introducing pleas which are unnecessary, which may trend to prejudice, embarrass or delay fair trial. In such cases, the court will interfere. This power must be exercised by the court sparingly, held by the Supreme Court in K.K.Modi Vs. K.N.Modi AIR 1998 SC 1297 .” 20. In this case the cause of action regarding common lane and relief sought for regarding common lane should be struck off. 21. The plaintiff is directed to file amended copy of plaint after strucking off the above matter, within a period of one month from the date of receipt of copy of the order. Whether bare injunction can be entertained will be decided by the Court below only. 22. With the above directions, this Civil Revision Petition is disposed of. No Costs. Consequently, connected miscellaneous petitions are closed.