This revision petition challenging a Trial Court order dismissing an application under Order VII Rule 11 CPC was dismissed. The Court held that the extent of property in the earlier suit differed from the present suit and that genuineness of documents required trial.
Civil revision petition dismissed; Trial Court directed to dispose of suit within three months.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2019
C O R A M
THE HON'BLE Mr.JUSTICE ABDUL QUDDHOSE
C.R.P.(PD) No.3268 of 2014 &
M.P.No.1 of 2014
1.Ponnusamy (Died)
2.Swaminathan
3.Anajalai
4.Samiappan
5.Jaya
6.Palaniappan
7.Selvi ... Petitioners
( petitioners 3 to 7 were brought on
record as LRs of the deceased first
petitioner viz., Ponnusamy vide
Court Order dated 02.07.2019
made in C.M.P.No.12392 of 2019 in
C.R.P.No.3268 of 2014)
Vs.
Natesan ... Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal orders passed in I.A.No.161 of 2012 in O.S.No.57 of 2011 dated 04.06.2014 on the file of the Court of Principal District Munsif, Chidamabaram.
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For Petitioners ... Mr.A.Muthukumar For Respondent ... Mr.R.Bharathkumar
ORDER
The instant civil revision petition has been filed challenging the
order dated 04.06.2014 passed by the learned Principal District Munsif,
Chidambaram in I.A.No.161 of 2002 in O.S.No.57 of 2011.
Brief facts leading to the filing of the instant revision under Article 227 of the Constitution of India:
suit, the first petitioner died. The suit was filed by the respondent
against the petitioners 1 and 2 for grant of permanent injunction restraining the petitioners from interfering with the respondent’s peaceful possession and enjoyment of the suit schedule property. On
receipt of the suit summons, the petitioners 1 and 2 who are the defendants in the suit O.S.No.57 of 2011 filed I.A.No.161 of 2012 in
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O.S.No.57 of 2011 under Order VII Rule 11 CPC to reject the plaint filed in O.S.No.57 of 2011 on the ground that the respondent has committed abuse of process of law by filing the suit O.S.No.57 of 2011.
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have also filed an execution petition viz., E.P.No.64 of 2004 before the
Principal District Munsif Court, Chidambaram and in the said execution petition, possession was also delivered to the petitioners 1 and 2. According to the petitioners, thereafter, the respondent’s father filed O.S.No.5 of 2005 seeking to set aside the decree passed in favour of the petitioners 1 and 2 in OS.No.248 of 1990. According to the petitioners, the said suit was dismissed, as against which an appeal was filed by the respondent’s father in A.S.No.117 of 2006 which was withdrawn by him. Therefore according to the petitioners, the judgment and decree passed in O.S.No.248 of 1990 in favour of the petitioners 1 and 2 has attained finality. Thereafter, the petitioners 1 and 2 once again filed another suit O.S.No.820 of 1995 against the respondent as well as his father seeking for an injunction restraining them from interfering with his peaceful possession and enjoyment of the suit schedule property, as it is the case of the petitioners that even after the judgment and decree passed in
O.S.No.248 of 1990 which has attained finality, the respondent once again interfered with the peaceful possession and enjoyment of the suit schedule property by the petitioners 1 and 2. The said suit O.S.No.820 of
1995 was also decreed in favour of the petitioners 1 and 2. Thereafter,
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the respondent, his brother and his father filed another suit O.S.No. 419 of 1996 seeking for permanent injunction in respect of the same property against the petitioners 1 and 2 which was dismissed for default. With these pleadings, the petitioners 1 and 2 had sought for rejection of plaint
on the ground of abuse of process of law under Order VII Rule 11 CPC.
11 CPC on the ground that the identity of the suit schedule properties
can be decided only after trial and the respondent is not bound by the
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earlier judgment and decree passed in O.S.No.248 of 1990 as he was not a party to the said suit. Aggrieved by the dismissal of I.A.No.161 of 2012, the instant revision has been filed under Article 227 of the Constitution of India.
Submissions of the learned counsels:
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are one and the same and therefore, the present suit filed by the
respondent in O.S.No.57 of 2011 is a abuse of process of law as the respondent has relitigated the matter, when the issue has already attained finality, by virtue of Judgment and decree passed in O.S.No.248 of 1990 instituted by the petitioners 1 and 2. According to him, pursuant to the said judgment and decree, the petitioners have taken possession of the suit schedule property as evidenced by the order passed in the
execution petition.
Discussion:
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10. The respondent has filed a registered settlement deed
executed in his favour by his father on 07.02.1996, house tax receipts upto the year 2010, Electricity bills dated 16.08.2003 & 11.02.2011, apart from filing of other documents including cash receipts issued by the Chidambaram Taluk Co-operative House Building Society Limited. According to him, as seen from the plaint averments, the respondent got the loan from Chidambaram Taluk Co-operative House Building Society Ltd., for completing construction of the house and he has been repaying to the Chidambaram Taluk Co-operative House Building Society Limited. Further it has been stated in the plaint that the Government of Tamil Nadu has also remitted the loan borrowed from the Chidambaram Taluk Co-operative House Building Society. He has also averred in the plaint that he is in exclusive possession and enjoyment of the suit schedule
property as the absolute owner since 1996.
Order VII Rule 11 CPC, the Court will have to look only into the plaint averments. In the instant case, extent of the suit schedule mentioned in
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O.S.No.248 of 1990 as well as the suit schedule mentioned in the present
O.S.No.57 of 2011 are different. In O.S.No.248 of 1990, the extent is mentioned as 0.05 cents whereas the extent mentioned in O.S.No.57 of 2011 as 0.06 ¼ cents. The respondent has also filed the documents upto the year 2010 which includes the house tax receipts. Further, it is the respondent's case, as seen from the plaint averments that he had mortgaged the suit schedule property and had availed loan from Chidambaram Taluk Co-operative House Building Society Limited. As there are differences in the extent between the suit schedule mentioned in O.S.No.248 of 1990 and the present suit O.S.No.57 of 2011 and the documents upto the year 2010 having been filed along with the plaint by the respondent, the genuineness of those documents can be examined. This Court has also perused the impugned order and does not find any infirmity in the same as the trial court has rightly rejected the application filed under Order VII Rule 11 CPC as the issue raised by the petitioners is a matter for trial.
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written statement has already been filed and due to the long pendency of the suit, a direction will have to be given to the Trial Court to dispose of the suit, within a time frame.
Conclusion:
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ABDUL QUDDHOSE. J,
nl
CRP (PD) No.3268 of 2014
19.07.2019
2 issues framed by the court
Whether the Trial Court was correct in allowing the plaint under Order VII Rule 11 CPC given alleged abuse of process of law.
Whether the earlier decree in possession proceedings precludes the respondent from filing the present suit on the same property.
2 provisions across 2 enactments
Ponnusamy (Died) and others
Natesan
Abdul Quddhose
Justice Abdul Quddhose
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
