THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY CRP case full order

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 02.08.2024

CORAM:

THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

C.R.P(MD)No.2464 of 2023
and C.M.P.(MD)No.12869 of 2023

J.Mary Gnanaparanam … Revision Petitioner/Petitioner/Defendant
vs.

Dr.Vasantha Elango
Rep. by her POA Holder
S.A.Elango Vasanthan … Respondent/Respondent/Plaintiff

Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records of I.A.No.247 of 2022 in O.S.No.98 of 2020 on the file of the learned Additional District Munsif, Madurai Town and set aside the order passed in I.A.No.247 of 2022, dated 20.01.2023 as same as illegal.

          For Petitioner      : Mr.A.Raja

      For Respondent  :  Mr.V.Santhakumaresan

ORDER

The Civil Revision Petition is directed against the Fair and Decretal order made in I.A.No.247 of 2022 in O.S.No.98 of 2020 on the file of the to  learned Additional District Munsif, Madurai Town.

2.By the said order, the application filed by the petitioner herein to reject the plaint, was dismissed by the trial Court. Aggrieved by which, the present civil revision petition is filed.

3.Mr.A.Raja, the learned counsel appearing on behalf of the petitioner would submit that firstly, when the petitioner has filed the earlier suit for partition, in the partition suit, the original sale deed, which is executed in favor of the petitioner herein, was also impugned. The petitioner was also impleaded as 8th respondent in the said suit. The trial Court has given a finding that the sale deed would be null and void only with reference to 1/5th share of the respondent alone and held that the sale in respect of 4/5 undivided shares were valid. If that being the situation, the plaintiff can only proceed with the said suit with reference to partition and separate possession of his share and filed a second suit for ejection is absolutely an abuse of process of law. The cause of action disclosed in the plaint in the second suit is only an illusory cause of action. 

4. He would submit that the second suit is also on the self same cause of action and as such the second suit would be barred by the principles of Order II Rule 2 of CPC. In any event, in view of the of the findings in the earlier suit with reference to the preliminary decree, the second suit is barred by res judicata. Even otherwise, when the subsequent sale deeds were executed in the year 2011, the suit is filed in the year 2020 and is hopelessly barred by limitation. The period of limitation expired in the year 2014 itself. 

5. The trial Court did not consider the said issue in proper perspective and by taking only a pedantic approach allowed the plaintiff to continue the suit. The trial Court ought to have seen that the suit which is otherwise not maintainable cannot be laid by clever drafting or asking for ingenious prayers. The learned counsel, in support of his submission, would rely upon the judgment of the Hon'ble Supreme Court of India in T.Arivandandam Vs. T.V.Satyapal and another1, for the proposition that the Court should travel the extra mile to weed out such kind of suits at the stage of the rejection of plaint itself.

6.Per Contra, Mr.V.Santhakumaresan, the learned counsel appearing on behalf of the respondent would submit that the second suit is on a totally different cause of action. Pending the partition suit, fresh sale deeds were executed and it is only the said sale deeds, which are impugned in the present suit. The prayer with reference to removal of construction, including in the portion of the plaintiff is also pleaded. Therefore, since the

cause of action arose only subsequently the bar under Order II Rule 2 of CPC, will not apply. Even with reference to res judicata, it is the contention that it is only the 1/5th share of the plaintiff alone, which is declared by way of preliminary decree and the defendant did not even file any counter prayer for their separate partition and separate possession. In the teeth of the said factual situation, when the 8th defendant entered only as a caretaker, he should only remain as a caretaker and the sale in his favour will not alter the situation.

7. In support of his contention, the learned counsel would rely upon the judgments of the Hon'ble Supreme Court of India in T.Lakshmipathi and Others Vs. P.Nithyananda Reddy and Others2; I.T.C. Limited Vs. The Debts Recovery Appellate Tribunal and Others3; and Sant Lal Jain Vs. Avtar Singh4, for the proposition that a licensee will always remain as a licensee. 

8. I have considered the rival submissions made by the learned counsel on either side and perused the material records of the case. 

9.The respondent, admittedly, had filed the earlier suit for partition in O.S.No.431 of 2011. In the said suit, the present petitioner herein, who is the subsequent purchaser of the undivided shares, was made as a party. In the said suit, in paragraph No.7, the following findings are given and the decree was also accordingly passed:
“,e;epiyapy; tof;F nrhj;jpd; xU ghfj;ij gpujpthjpfs; jq;fSf;Fs; ghfg;gphptpid nra;J nfhz;ljhf $wp 8k; gpujpthjpf;F tpw;gid nra;a kw;w gpujpthjpfSf;F chpikapy;iy. MapDk; tof;Fr; nrhj;jpYs;s gphptpid nra;ag;glhj jq;fspd; 4/5 ghfj;ij nghJtpy; 4/5 ghfk; vd;W Fwpg;gpl;L 8k; gpujpthjpf;F tpw;gid nra;a kw;w gpujpthjpfSf;F chpikAs;sJ. Vnddpy; gphptpid nra;ag;glhj nrhj;jpYs;s ghfj;ij rpy ghf];jh;fs; tpw;gid nra;af;$lhJ vd;w rl;lg;gbahd jil vJTk; ,y;iy. vdNt> Nkw;gb fpiua Mtzk; thjpapd; 1/5 ghfj;ij nghWj;J rl;lg;gb nry;yj;jf;fjy;y.” 

10.Therefore, the petitioner is expected to move the Court for final decree and for separate possession of his property. However, without filing a final decree application, the present suit is filed. The contentions which are raised by the learned counsel for the petitioner is that firstly, the suit is barred under Order II Rule 2 of CPC. It can be seen that the second suit itself is filed, which is based on an action of the defendants in the earlier suit in canceling the earlier sale deed and entering into a fresh sale deed. The same is in accordance with the earlier decree. But however, it cannot be stated that the cause of action for impugning the present sale deed arose at the time  of the first suit itself. Therefore, the principles under Order II Rule 2 of CPC will not apply. 


11. Even though I also see that instead of getting their share demarcated, the second suit is filed, however, the weak the case may be, if only the case comes within the four corners of Order VII Rule 11 of CPC, the plaint can be rejected at the threshold. As far as the question of limitation is concerned, since the trial Court has observed that the same is not expressly raised in the petition, that would not preclude the petitioner from raising the very same plea in their written statement. Even the pleas, as to the entitlement, are all have to be pleaded and it has to be thrashed out in the suit itself. Therefore, giving liberty to the petitioner to raise all the grounds, including the ones raised in the present application in the written statement and leaving it open for the trial Court to consider the same in the manner known to law. 

12. It is also made clear that the petitioner herein can also approach the learned III Additional Subordinate Court, Madurai and the Court shall follow the dictum of the Hon’ble Supreme Court of India in Kattukandi Edathil Krishnan  and others -Vs-  Kattukandi Edathil Valsan and others5, to take up O.S.No.431 of 2011 for further final decree proceedings even if there is no application by the plaintiff . 

13. With the above directions, the Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
                                                            02.08.2024

NCC : Yes
sji

To

1.The Additional District Munsif, Madurai Town.

2.The III Additional Subordinate Court, Madurai.

D.BHARATHA CHAKRAVARTHY, J.

sji

C.R.P(MD)No.2464 of 2023
and C.M.P.(MD)No.12869 of 2023

02.08.2024