Dismissed¶49

P.S.Kirubakaran and another v. a.Azizul Karim

Madras HC7 Feb 2025A/2834/2024

Case brief

AI extract

What is this about?

Madras High Court; Justice A.A. Nakkiran; A.No. 2834 of 2024 in CS.No.212 of 2017; application to strike off plaint; Order 6 Rule 16 CPC; Order 7 Rule 11; OA.No.1267 of 2024 withdrawn 23.04.2023; forged sale agreement; fake summons service; ex parte decree; perjury A.No.944/2020 allowed 01.10.2020; Registrar General complaint; vexatious litigation OSA.Nos.254 and 255 of 2022; specific performance; Coral Merchant Street, George Town, Chennai; P.S.Kirubakaran; P.S.Anandan; A.Azizul Karim; M/S.M. Nanda Kumar; Aravind Subramanian Senior Counsel; written statement not filed; issues to be framed; trial required; Rs.27 lakhs; application dismissed 07.02.2025.

What did the court decide?

Since there are some other defendants in the suit, it cannot be struck off on account of these two applicants alone. ¶48

P.S.Kirubakaran and another Vs a.Azizul Karim — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the plaint in C.S. No. 212 of 2017 — alleged to rest on a forged sale agreement and fraudulent litigation — could be struck off on the present application at this stage, when other defendants remain in the suit and the applicants have not yet filed their written statements.

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Court's answer

Since there are some other defendants in the suit, it cannot be struck off on account of these two applicants alone.

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Ratio / Principle

The applicant has to file his written statement mentioning all the averments made in the affidavit, and issues have to be framed and the trial concluded, before this Court can come to a proper conclusion.

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Key takeaways

Hence the application cannot be entertained at this stage and is liable to be dismissed.ratio¶48

Detailed headnote1 paragraphs

A.No. 2834 of 2024 in C.S. No. 212 of 2017, High Court of Judicature at Madras (A.A. Nakkiran J.; pronounced 07.02.2025) — dismissed. Two defendant-applicants (P.S. Kirubakaran and P.S. Anandan) sought striking off of the plaint of suit C.S. No. 212 of 2017, pending on the file of this Court, in which an ex parte decree had been passed against them. They alleged the plaintiff's sale agreement was forged, that perjury proceedings (A.No.944/2020) against the plaintiff were already allowed by order dated 01.10.2020 with the Registrar General's complaint pending, that the Division Bench had condemned the plaintiff's vexatious litigation in OSA.Nos.254 and 255 of 2022, and that fake summons service had procured the decree; an earlier OA.No.1267 of 2024 under Order 7 Rule 11 had been withdrawn on 23.04.2023 with liberty to invoke Order 6 Rule 16 CPC. The respondent (senior counsel Aravind Subramanian for K. Gangadharan) contended the allegations were triable issues, that the applicants had not filed written statements, and that the suit was not an abuse of process nor barred by law. Holding: as there are some other defendants, the suit cannot be struck off on account of these two applicants alone; written statements must be filed, issues framed and trial concluded before the Court can reach a proper conclusion; the application cannot be entertained at this stage. Accordingly dismissed. (The sale agreement date appears variously as 02.06.2014 and 02.02.2014 in the text; sale value Rs.27 lakhs.)

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A.No. 2834 of 2024 in CS.No.212 of 2017

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 07.01.2025

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Pronounced on : 07.02.2025

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CORAM

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THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

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A.No. 2834 of 2024

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IN CS. No. 212 of 2017

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P.S.Kirubakaran and another No.4 ,Jaffer syrang street, Mannady, chennai-600 001 2. P.S.Anandan Applicant(s)

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Vs.

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A.Azizul Karim S/o.Abdul Malik

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Respondent(s)

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For Applicant(s): M/S.M. Nanda Kumar Applicant 1 - P.S.Kirubakaran Applicant 2 - P.S.Anandan Applicant Name Printed As Per B/o Dt:09/09/2024 For Respondent(s): Mr.Aravind Subramanian Senior Counsel for Mr.K. Gangadharan

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ORDER

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This application has been filed to pass an order to strike off the plaint in the above

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suit pending on the file of this court.

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Learned counsel for the 1^st applicant/6^th defendant submitted that he is the co-

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owner of the property situated in Old S.No.2055, New S. No.273 Old Door No.129,

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New Door No.98, Coral Merchant Street, George Town Village, Chennai to an

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extent of 2163 sq.ft. The 1^st applicant received a suit summons on 19.03.2019 in

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https://www.mhc.tn.gov.in/judis

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OS.No.385 of 2019 on the file of I Assistant City Civil Court, Chennai. In the said

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suit, the counsel for the 1^st respondent informed about an exparte decree passed in

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CS.No.212 of 2017 against the applicant and others. Thereafter, 1^st applicant filed a

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search memo in CS.No.212 of 2017 and obtained certified copies of the plaint, plaint

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documents, process service report of the bailiff for issuance of the suit summons on the defendants and came to know that the 1^st applicant forged the sale agreement dated 02.06.2014. The 1^st applicant filed an application to institute perjury proceedings against the 1^st respondent in A.No.944/2020 in the said suit and the same was allowed by this court vide order dated 01.10.2020. Thereafter, the Registrar General of this court filed complaint against the 1^st respondent and the same is pending for perjury. During search, the police officials have recovered many documents admitted by the petitioner in his confession as forged and fabricated to grab many properties. In the modus operandi of the accused, the first strategy of the accused is to enter into a sale agreement based on which the detenue with the help of

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his syndicate would file suits with fake address as address for service in the suits and

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make ready fake receipt of summons and thereby obtaining exparte orders and decrees and filing execution petitions to make the court to deliver the property.

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Except in OS.No.12898 of 2010, the address of the said counsel in all other cases are https://www.mhc.tn.gov.in/judis shown as 'MHAA, 1^st floor, High Court Building, Chennai 600001, and in

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OS.No.1298 of 2010 the counsel A.Anandhan's address is shown as “6/4 Jaffer

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Syrang Street, Chennai 600001. For the same property, the 1^st respondent has filed

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CS.No.212 of 2017 before this court for specific performance of sale agreement dated 02.02.2014, for sale value of Rs.27 lakhs for the property in “New No.129,

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Old No.98, Coral Merchant Street, Chennai 600001”. For the very same defendants,

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the 1^st respondent, has given different address. The Division Bench of this court severely condemned the vexatious litigations filed by the 1^st respondent in OSA.Nos.254 and 255 of 2022. The present suit is the one to prove that the plaintiff is filing frivolous and fraudulent litigation by using forged sale agreements by colluding with court bailiffs. The receipts of cash payments made by the plaintiff to the dead persons show the level of fraud and forgery committed by the plaintiff. No

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cause of action could arose from the fraud and void agreements. Hence, he prays to

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allow this application.

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Learned counsel for the respondent has submitted that the OA.No.1267 of 2024

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filed under Order 7 Rule 11 was withdrawn on 23.04.2023 with a liberty to file an

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application under Order 6 Rule 16 CPC. The allegations made in the affidavit are

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arguable issues and has to be decided in the trial. The offences made out against the https://www.mhc.tn.gov.in/judis

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respondent has to be tried in a trial cannot be thrown out in the threshold. The

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A.A.NAKKIRAN.,J.

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applicant has not filed his written statement. If The dispute of facts by the petitioner

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by the petitioner have to be undertaken in a trial and cannot be taken up under the

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second clause (b). Based on the interim orders passed, the pleadings cannot be struck down. The present suit does not amount to an abuse of process of law and not barred by any law. To invoke provision under Order 6 Rule 16, related evidence has to be

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taken on record. Hence, he prays to dismiss this application.

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4. Heard both sides.

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Upon perusing the materials on record, it is seen that there are some other defendants. For these two applicants alone, the suit cannot be struck off. In this case, the applicant has to file his written statement mentioning all the averments made in the affidavit and issues has to be framed and trial has to be concluded. Then only this Court shall come to proper conclusion. Hence, this application cannot be entertained at this stage and liable to be dismissed.

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