Allowed

Sri S.R.Nanda Kishore v. the Body of Villagers of

Madras HC6 Nov 2013CRP/443/2011

Case brief

AI extract

What is this about?

The Madras High Court allowed a civil revision petition under Article 227 striking off a suit filed by three individuals without locus standi or court permission under Order 1 Rule 8 CPC. The suit, alleging conversion of government poramboke land into a road, was struck off as an abuse of process. Permission was granted for the petitioner to construct the road at his cost, but ownership remains wi

What did the court decide?

Suit in O.S. No.14 of 2011 struck off; Petitioner permitted to form Thar road at cost with no independent right.

Sri S.R.Nanda Kishore Vs the Body of Villagers of — Property and Title | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATRE AT MADRAS

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DATED: 06.11.2013

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CORAM

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THE HONOURABLE MR. JUSTICE S.TAMILVANAN

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C.R.P.(PD).No.443 of 2011 & M.P.Nos.1 and 2 of 2011

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S.R.Nanda Kishore .. Petitioner / D3

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vs.

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The Body of Villagers of No.29, Mambakkam village

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Chengalpattu Taluk, represented by

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(i) Mr.S.Lakshmipathy Naidu

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S/o. Mr.Swami Naidu

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No.1/83, Pillaiyar Koil Street,

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Mambakkam Village & Post

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(via) Vandalur, Chennai – 600 048,

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Chengalpattu Taluk, Kancheepuram District.

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(ii) Mr.G.Selvam

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S/o.Mr.Gangadharan Naidu,

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No.32, Perumal Koil Street, Mambakkam Village & Post, (via) Vandalur, Chennai – 600 048 Chengalpattu Taluk, Kancheepuram District.

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(iii) Mr.S.Jaganathan

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S/o. Mr.Srinivaslu Naidu, No.77, Pillayar Koil Street, Mambakkam Village & Post, (via) Vandalur, Chennai – 600 048, Chengalpattu Taluk, Kancheepuram District. ... R1 / Plaintiff

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No.29, Mambakkam Village panchayat represented by its President, Kelambakkam – Vandalur Post, Mambakkam Village & Post, (via) Vandalur, Chennai – 600 048, Chengalpattu Taluk, Kancheepuram District

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M/s. V.J.S.Enterprises represented by its Managing Partner, Old No.1/155, New No.1/166, Bharathiyar Street, Jalladanpet, Pallikaranai, Chennai – 601 302.

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T.Sathyavathy

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Kumari

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........ R2 to R5 / D1, D2, D4 & D5

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The State of Tamil Nadu Rep. by Secretary to Government, Rural Development & Local Administration, Fort St. George, Chennai – 600 009.

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The District Collector Kancheepuram. ........Respondents 6 & 7

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(R6 & R7 impleaded as party respondents vide order of the Court, dated 19.09.2013 made in M.P.No.1 of 2013 in CRP (PD).No.443 of 2011)

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Civil Revision Petition filed under Article 227 of the Constitution of India, seeking an order to strike off the suit in O.S.No.14 of 2011 on the file of the Addl. Sub-Court, Chengalpet.

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For Petitioner : Mr.P.V.Muralidhar

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For Respondents : Mr.C.Jagadish for R1 Mr.V.R.Sivaraman for R2

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No appearance for R3 to R5

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Mr.A.L.Somayaji, Advocate-General for R6 and R7

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O R D E R

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This Civil Revision has been preferred under Article 227 of

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the Constitution of India, seeking an order to strike off the suit in O.S.No.14 of 2011, pending on the file of the Additional Sub-Court, Chengalpet.

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The petitioner is the third defendant in the suit. The suit was filed by the first respondent in the name of the people of No.29, Mambakkam village, Chengalpet Taluk, represented by (1) Mr.S.Lakshmipathi Naidu (2) Mr.G.Selvam and (3) Mr.S.Jaganathan against Mambakkam Village panchayat represented by its President, the petitioner herein and three others, seeking (1) for permanent injunction restraining the said defendants, their men, officials, contractors, agents and servants etc., from in any way converting the suit 'B' schedule property into a road; (2) for mandatory injunction directing the first defendant, Mambakkam village panchayat to maintain 'B' schedule property as part of " Nallathaneer Kulam " and for costs.

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Admittedly, "B" schedule property is a Government poromboke land vested with the panchayat union, under the maintenance of Mambakkam village panchayat. The petitioner herein has averred in the grounds of the Revision that the suit was filed without getting permission, as required under Order 1 Rule 8 of the Code of Civil Procedure and further, it is stated that the suit is not legally maintainable.

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Mr.P.V.Muralidhar, learned counsel appearing for the petitioner submitted that the three persons, claiming to be

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representative of body of Mambakkam village and filing the suit is against law and they have no locus standi to file the suit against the petitioner / defendant and the elected village panchayat President and others, however, they got exparte interim order, which is perverse, since the suit filed itself is an abuse of process of law. The petitioner / D3 has come forward with the revision petition, invoking Article 227 of the Constitution of India, seeking an order to struck off the suit, on the ground of abuse of process of law.

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Learned counsel appearing for the Revision petitioner drew the attention of this Court to the copy of the proceeding, dated 10.07.2010 passed by the President and members of Mambakkam Panchayat Board. It has been communicated in the letter head of the President of Mambakkam panchayat, whereby it is informed by the President of Mambakkam village panchayat that the Panchayat Board has passed Resolution No.180, dated 10.07.2010, raising no objection to form a road for the public in S.No.47 of the village. The Tahsildar, Chengalpet, by his proceeding, dated 11.08.2010 has stated that the land in S.No.47 of Mambakkam village is on the banks of the Natham pond and that could be used as road by the public. It is seen that the same was also communicated to the petitioner / D3.

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The authorisation letter, dated 12.01.2011 of the President of Mambakkam village panchayat and a copy of the letter sent by Tahsildar to the Block Development Officer, Thiruporur are also available in the typed set of papers. The panchayat President of Mambakkam has stated that the land in S.Nos.143/2, 143/3, 144/2 and 149 have been approved as house sites. In order to reach the said house sites, the land in S.No.47 of the said village could be used as road and the village panchayat has no objection for forming a 'Thar road'. As per the proceedings, dated 13.01.2011 in e/f/vz;/ 2659/09/M1. Block Development Officer, Thiruporur panchayat union has stated that the available mud road, on the banks of the village pond, available in S.No.47, village natham be converted into Thar road. However, the proceeding reads that the breadth of the road should not be less than 3.75 metres and the proceeding was also communicated to the revision petitioner.

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Mr.P.V.Muralidhar, learned counsel appearing for the petitioner / D3 submitted that Thar road is properly being formed at the cost of the petitioner / D3 for the benefit of the entire villagers, including the plaintiff, the three villagers. As the village panchayat and the Panchayat union have no funds to form the road, permission was granted to the Revision petitioner to form the road at the cost of the petitioner. According to the learned counsel for

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petitioner, due to some personal animosity and also seeking monitory consideration, the plaintiff filed the suit, without any locus standi, though the competent authority is only the elected village panchayat, Block Development Officer of the panchayat union, the Tahsildar and other Government authorities.

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Per contra, Mr.C.Jagadish, learned counsel appearing for the first respondent / plaintiff submitted that the petitioner / D3 has taken steps only for the benefit of certain group of persons, who purchased house sites in the layout, formed by the Revision petitioner, hence, that would be detrimental to the interest of the general public. However, he has not disputed the fact that the suit property is a Government land vested with the panchayat union, maintained by Mambakkam panchayat and at present, the same is being used by the public as a mud Road.

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Having considered the submissions made by the first respondent / plaintiff, since the land in S.No.47 of Mambakkam village is a Government poramboke, this Court held it reasonable to direct the petitioner / D3 to implead the Government of Tamil Nadu as a necessary party and as per the directions of this Court, Government of Tamil Nadu, represented by Secretary to Government, Rural Development and Local Administration, Chennai-

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9 and the District Collector, Kancheepuram have been impleaded as

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6^th and 7^th respondents respectively in this Revision.

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Mr.A.L.Somayaji, learned Advocate-General appeared

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on behalf of the Government of Tamil Nadu and District Collector, Kancheepuram, the respondents 6 and 7 herein. As submitted by the learned Advocate-General already mud road is available in S.No.47, Mambakkam village, that is being used by villagers and the General public and if pukka Thar road is formed at the cost of the Revision petitioner, that may be beneficial to all the people. However, the learned Advocate-General contended that even after converting the mud Road into Thar road, the petitioner / D3 should not claim any right over the road and it should be the Government property and the road shall be formed properly, as per specification.

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As per Order 1 Rule 8 of the Code of Civil Procedure,

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one or more persons may sue or defend on behalf of others having the same interest in the suit, for which permission shall be obtained from the Court. Order 1 Rule 8 (2) CPC reads as follows :

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"The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason

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of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct."

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As per sub-rule (3) of Order 1 Rule 8, any person on whose behalf or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.

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In the instant case, according to the learned counsel appearing for the revision petitioner, the said mandatory provision was not complied with for instituting the suit in the representative capacity on behalf of the villagers of Mambakkam. It is seen from the material papers that the first respondent / plaintiff has not complied with the mandatory provision, as required under order 1 Rule 8 of the Code of Civil Procedure.

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As admitted by both the parties, the suit property is a Government poramboke land, vested with the Panchayat union maintained by Mambakkam village panchayat. The village panchayat has passed a resolution, permitting to use the mud road as a public road and also for forming thar road. As per the resolution, dated 10.07.2010, the Panchayat Board has raised no

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objection in forming a Thar Road. The Tahsildar, Chengalpet, by his proceeding, dated K:/K:/4957/2010/M1. dated 11.08.2010 has also made it clear that the mud road available in S.No.47 of the aforesaid village could be used as pathway and the proceeding was communicated to the revision petitioner.

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As per the proceedings, dated 13.01.2011 made in e/f/vz;/2659/09/M1. Block Development Officer, Thiruporur panchayat union has permitted the revision petitioner to form thar road at the width not less than 3.75 metres and the letter was also marked to the revision petitioner.

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Learned Advocate-General has expressed the view of the Government that Thar road could be formed at the expense of the revision petitioner, having a width of not less than 3.75 metres and the same shall be used by the public as a public road and that the petitioner / D3 could claim no independent right over the road in future.

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In K.K.Modi v. K.N.Modi , reported in AIR 1998 SC

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1297 , the Hon'ble Apex Court has held as follows :

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"43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase

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"abuse of the process of the court" thus : This term connotes that the process of the court must be used bona fide and properly ad must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation..... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."

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As per the decision of the Hon'ble Apex Court, when there is a clear abuse of process of Court, in order to stop such a vexatious proceeding, this Court has got power, invoking superintending power of this Court, under Article 227 of the Constitution of India, to strike off the plaint. Following the same, this Court in N.Babu v.

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S.Shanmugam & Others , reported in 2013-1-LW 491 , held that though an alternative remedy was available, the Court is vested with the power of striking off the plaint, when there is a clear abuse of process of Court established for invoking Article 227 of the Constitution of India.

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It was argued by the learned counsel for the first

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respondent / plaintiff that the petitioner could have approached the trial Court, by filing petition under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint, however, directly the Revision has been preferred, invoking Article 227 of the Constitution of India. However, it cannot be disputed that speedy justice is a Fundamental Right, as contemplated under Article 21 of the Constitution. When there is abuse of process established, alternative remedy is not a bar. In this case, the suit property is a Government poramboke land, vested in the Panchayat union, maintained by the village panchayat Board, the said authorities have no objection in forming Thar Road by the Revision petitioner, without seeking any special right over the road, however, the first respondent /plaintiff, three individuals have filed the suit, without any locus standi to maintain the suit.

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In A.Venkatasubbiah Naidu v. S.Chellappan and

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ors ., reported in 2008 SCC 695 , the Hon'ble Supreme Court held that when the party had other alternative remedies, they have to take recourse to those remedies, instead of invoking constitutional remedies. However, it has been ruled by the Hon'ble Apex Court in various decisions, that alternative remedies would not be a bar in preventing abuse of process of Court.

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In Surya Dev Rai v. Ram Chander Rai , reported in

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(2003) 6 SCC 657 , the Hon'ble Apex Court has categorically held that the power of High Court under Article 227 thus :

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"22. ... It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar."

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The Hon'ble Apex Court made it clear that in exercise

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of supervisory jurisdiction, the High Court is empowered not only to quash or set aside any impugned proceeding, judgment or order but also to make such directions, on the facts and circumstances of each case and accordingly, this Court may also issue directions, by way of guiding the subordinate Court or Tribunal, to meet the ends of justice.

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In Arivandandam v. T.V.Satyapal , reported in

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(1977) 4 SCC 467 , the Hon'ble Apex Court, while speaking

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through Mr.Justice.V.R.Krishna Iyer , has observed as follows :

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"The pathology of litigative addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases.

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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 7, Rule 11 CPC 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 10, CPC. An activist Judge is the answer to irresponsible law suits."

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In K.Modi v. K.N.Modi , reported in (1998) 3 SCC

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573 , the Hon'ble Apex Court has held in paragraph number 44 as follows:

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"44. ... The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted."

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In a notable decision, in Mcllkenny v. Chief Constable of West Midlands Police Force , reported in (1980) 2

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All ER 227 , the Court of appeal of England struck out the pleading on the ground that the action was an abuse of the process of the court, since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court, since a party relitigate a question or issue, which has already been decided against him and the aforesaid

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decision of the Court of Appeal of England was also referred to by the Hon'ble Supreme Court in the aforesaid decision.

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It is a well settled law that the power under Article 227 of the Constitution of India, involves a duty on the part of the High Court to keep all Court within its jurisdictional bounds to prevent abuse of process of Court. This Court has got inherent jurisdiction under Article 227 of the Constitution to prevent abuse of process of Court and passing order to struck off plaint from the file of the Court, if it is a clear abuse of process of law and Court, as per the plaint averments and the relief sought for by the party seeking the relief.

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As per Order 7 Rule 11 of the Code of Civil Procedure, if there is no cause of action in the plaint to seek the relief or when there is a statutory bar in maintaining the suit, the Court can order for rejection of the plaint. However, it is well settled that the Court has to decide the plaint under Order 7 Rule 11 CPC, based on the total averments made in the plaint and that cannot be decided, as per the defence raised in the written statement filed by the defendant.

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It has been made clear by the Hon'ble Apex Court that for invoking Article 227 of the Constitution, to strike off the plaint,

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there must be abuse of process of Court, as per the plaint averments and the admission made by the plaintiff, seeking the relief in the suit, otherwise this Court cannot pass such orders.

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In the instant case, admittedly, the suit property is a Government poromboke land, being used as mud road by public. It is seen that the petitioner herein / third defendant had approached the concerned village panchayat, Block Development Officer and the Tahsildar, seeking permission for forming a Thar Road, by spending his own money for the convenience of the General public.

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Having considered the representation made by the petitioner, Mambakkam village panchayat, represented by its President, passed a resolution raising "No objection" for the said proposal and was also approved by the concerned Block Development Officer and the Tahsildar, as per the copy of their proceedings available in the form of typed set of papers. As contended by the learned counsel appearing for the petitioner, it has been made clear that the suit property is only a poramboke land, being used as mud road by the public, however, the first respondent / plaintiff, has stated that it is a Nalathaneerkulam, in other words a pond. However, it is used by the public as mud road, as stated by the second respondent.

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When the suit was filed against the elected village panchayat of Mambakkam village, three individuals of the said village cannot represent the entire village people and further, it is mandatory on the part of the plaintiff to follow the mandatory procedure, as contemplated under Order 1 Rule 8 of the Code of Civil Procedure. However, without obtaining leave from the Court below, the sit was filed by three individuals of the village, as if they represent the people of the village against the village panchayat, represented by its elected President.

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Having considered the fact that the suit property belongs to the Government, the plaintiff could have impleaded the State, represented by its District Collector as a party. In the aforesaid circumstances, it has been made clear that there is no locus standi for the three individuals, stating themselves persons representing the village.

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Mr.P.V.Muralidhar, learned counsel appearing for the petitioner argued that due to some personal animosity and also with a view to extract the money, the frivolous suit was field by three individuals in the name of the villagers, even without getting the leave from the Court, as per the Code of Civil Procedure, hence,

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filing the suit could be construed only as an abuse of process of law and Court.

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Having considered the public importance and the fact

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that the suit property is a poramboke land belongs to the Government, this Court directed the revision petitioner herein to implead the Government of Tamil Nadu, as a party to the proceeding. Accordingly, the Government of Tamil Nadu represented by its Secretary to Government, Rural Development & Local Administration, Chennai and the District Collector, Kancheepuram have been impleaded as respondents 6 and 7. Learned Advocate-General, Mr.A.L.Somayaji, appeared before this Court for the respondents 6 and 7, submitted the view of the Government, in a responsible manner.

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According to the learned Advocate-General, the Government have no objection in forming the road, as per the specification, by spending the money by the petitioner, without seeking any independent right over the road. In the aforesaid circumstances, it has been made clear that the road is being formed, as per the specification of the Government by the petitioner, out of his own money, without seeking any independent right over the road and therefore, it is clear that forming the road is

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for the beneficial to the public at large.

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Having considered the facts and circumstances, in the light of various decisions rendered by the Hon'ble Apex Court, referred to above, this Court is of the view that the revision preferred under Article 227 of the Constitution has to be allowed, to meet the ends of justice and to order to strike off the plaint in the suit in O.S.No.14 of 2011.

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In the light of the submissions made by the learned Advocate-General of Tamil Nadu and also the fact that the first respondent / plaintiff has no locus standi and also the noncompliance of Order 1 Rule 8 CPC, this Court is of the view that the suit filed by the first respondent / plaintiff is not legally sustainable. In the light of various decisions rendered by the Hon'ble Apex Court and this Court, this Court is of the view that the revision preferred, invoking Article 227 of the Constitution of India has to be allowed, as the suit has been filed by the first respondent / plaintiff, without any locus standi and without following the mandatory procedure, known to law and accordingly, the same is liable to be struck off.

S.TAMILVANAN, J

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In the result, this Civil Revision Petition is allowed and

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the suit filed by the first respondent / plaintiff is ordered to be struck off. Considering the view of the Government expressed by the learned Advocate-General, the revision petitioner is permitted to form the Thar road in S.No.47 in Mambakkam village, Kancheepuram District, as per specification of the Government for a width not less than 3.75 metres at the cost of the revision petitioner. It is also made clear that it is a public road belongs to the Government and the revision petitioner could claim no independent right over the same, even in future. Consequently, connected miscellaneous petitions are closed. However, no order as to costs.

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06.11.2013

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Index : Yes Internet : Yes

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Note to Office :

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Issue order copy on 18.11.2013.

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