Dismissed¶44

K.O. Basheer Ahmed v. Gudiyattam Coconut Growers and Sellers

Madras HC14 Feb 2025CRP/3345/2023

Case brief

AI extract

What is this about?

CRP 3345 of 2023, Madras High Court, N. Senthilkumar J., 14-02-2025; rejection of plaint Order 7 Rule 11 CPC with Section 151 CPC; Article 227 Constitution of India interference; abuse of process; similar suit O.S.No.79 of 2013 District Munsif Court Gudiyatham dismissed for default; res judicata/different cause of action left to trial court after evidence; S.Thiyagarajan v. Supreme Pipe Syndicate 2017 (6) CTC 723 distinguished; O.S.No.147 of 2019 I Additional District and Sessions Court Vellore; Gudiyattam Coconut Growers and Sellers Association; expeditious disposal direction.

What did the court decide?

No relief to the petitioner; Civil Revision Petition dismissed with no costs, with a direction to the trial Court to dispose of O.S.No.147 of 2019 expeditiously as the suit is ready for trial. ¶44

K.O. Basheer Ahmed Vs Gudiyattam Coconut Growers and… — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

No relief to the petitioner; Civil Revision Petition dismissed with no costs, with a direction to the trial Court to dispose of O.S.No.147 of 2019 expeditiously as the suit is ready for trial.

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Issue for consideration

Whether the plaint in O.S.No.147 of 2019 is liable to be rejected under Order 7 Rule 11 read with Section 151 CPC on the ground that a similar suit (O.S.No.79 of 2013) is pending, rendering the suit an abuse of process, and whether the plea of res judicata/different cause of action can be resolved at the interlocutory stage.

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Court's answer

Whether the suit in O.S.No.147 of 2019 is hit by res judicata or is founded on a different cause of action vis-a-vis O.S.No.79 of 2013 (which was dismissed for default) has to be decided by the trial Court after adducing evidence; the plaint cannot be rejected summarily on that basis at this stage.

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Ratio / Principle

The trial Court rightly dismissed the interim application (I.A.No.1 of 2020) filed by the revision petitioner/1st defendant under Order 7 Rule 11 r/w Section 151 CPC.

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Detailed headnote1 paragraphs

Madras High Court (N. Senthilkumar, J.) dismissed a civil revision petition under Article 227 challenging the trial Court's refusal to reject a plaint. The defendant/revision petitioner had sought rejection of the plaint in O.S.No.147 of 2019 (I.A.No.1 of 2020) under Order 7 Rule 11 read with Section 151 CPC, contending that a similar suit, O.S.No.79 of 2013, was pending before the District Munsif Court, Gudiyatham, making the later suit an abuse of process. The Court noted that O.S.No.79 of 2013 stood dismissed for default and that the plea that the later suit proceeds on a different cause of action and is not hit by res judicata 'has to be decided by the trial Court after adducing evidence'. Counsel's reliance on S.Thiyagarajan v. Supreme Pipe Syndicate, 2017 (6) CTC 723 did not prevail. The CRP was dismissed with no costs and the trial Court was directed to dispose of the 2019 suit expeditiously as it is ready for trial.

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CRP NO. 3345 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14-02-2025

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CORAM

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THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR

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CRP NO. 3345 of 2023

K.O. Basheer Ahmed

Petitioner(s)

Gudiyattam Coconut Growers and Sellers Association, Rep by its President M.B. Thirumal, S/o. Balasubramaniam, Having office at: 249, R.S. Road, Kondasamuthiram, Gudiyattam, Vellore Dt. Residing at Perumbadi Village, Agravaram Post, Gudiyattam Taluk, Vellore District.

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P.K.G. Manogaran 3. G. Ganesan 4. N. Vadivel

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D. Mahalingam

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Respondent(s) PRAYER: Civil Revision Petition filed under 227 Constitution of India, praying to set aside the fair and decreetal order dated 08.07.2022 passed in I.A.No.1 of 2020 in O.S.No.147 of 2019 on the file of the I Additional District and Sessions Court, Vellore.

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For Petitioner(s):

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Mr. K. Govi Ganesan

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For Respondents: Mr.K.A.Ravindran, For R1

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

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Mr. N.Nithianandam, For R 2 To 5

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ORDER

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The present revision petition is filed as against the fair and decreetal order passed in I.A.No.1 of 2020 in O.S.No.147 of 2019 on the file of the I Additional District Judge,

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Vellore,

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The defendant filed an application under Order 7 Rule 11 read with Section 151 of CPC to reject the plaint by contending that the similar suit has been filed by the plaintiff and the same is pending in O.S.No.79 of 2013 before the District Munsif Court, Gudiyatham.

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Learned counsel for the revision petitioner contended that when a similar suit is filed and

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pending, the suit filed by the defendant in O.S.No. 147 of 2019 is abuse of process of law.

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Per contra, learned counsel for the respondent contended that the suit in O.S.No.79 of 2013

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is nothing to do with the present petition and even assuming for a moment, the suit in

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O.S.No.79 of 2013 and the present suit in O.S.No.147 of 2019 has been adjudicated before

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the trial Court.

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

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Learned counsel for the revision petitioner would rely upon the judgment of this Court in

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the case of S.Thiyagarajan vs. Supreme Pipe Syndicate reported in 2017 (6) CTC 723, in which paragraph Nos. 13 to 16 is extracted hereunder:

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“ 13. In the plaint, there is no averments that the plaintiff partnership firm is a registered firm. In the absence of firm registration certificate and in the absence of tenancy agreement, without ascertaining the existence of privity of contract, the trial Court has taken the plaint on file giving a go by to Section 69(2) of the Partnership Act, which bars the suit by unregistered partnership firm against the third party. The trial Court has failed to exercise even a minimum required scrutiny of pleading, relief sought and maintainability of the suit before taking the plaint on file.

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14. The non-disclosure of material fact relevant for cause of action is singularly suffice to reject the plaint under Order 7, Rule 11 of the Code of Civil Procedure, however the ancillary proceedings and abuse of court process, force this Court to interfere under Article 227 of the Constitution of India to allow the revision petition, without resorting to the alternate remedy. Since it will be unjust to ask, a senior citizen aged about 71 years to defend a suit, which is per se barred in law and filed with material suppression of fact.

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

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15. The said S. Rahmathullah claims himself as a partner in M/s Supreme Pipe Syndicate. In the plaint, he has not whispers about the date of his induction into the partnership firm. Now, before this Court, an unregistered partnership deed dated 02.03.2015 between S. Rahmathullah and Smt.Sajarath Thaiyaba has been produced. This partnership deed is after issuance of legal notice by the landlord to Smt.Sajarath Thaiyaba. The RCOP proceedings is filed on 20.04.2015 in the name of Smt.Sajarath Thaiyaba. In that petition, there is no mentioning about S.Rahmathullah as its partner. Smt.Sajarath Thaiyaba has filed memo dated 02.01.2017 informing the Tribunal that she has vacated the premises, after receiving the advance amount and sought for dismissal of R.C.O.P.No.215 of 2015 as not pressed. She has also filed a memo in O.S.No.690 of 2016, which is the subject matter of the revision petition stating that S. Rahmathullah is no way connected with the suit property. She has vacated the property and handed over the vacant possession to the landlord. She has filed a detailed affidavit and petition to implead herself in W.P.(MD)No.24398/2016 filed by Rahmathullah, wherein she has categorically stated that Rahmathullah is not a partner of Supreme Pipe Syndicate. She has alleged that taking advantage of the husband's demise, Rahmathullah is trying to grab the business.

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16. From the pleadings and documents, it is clear that, Rahmathullah has no privily of contract with the revision petitioner/ landlord. He has not placed any document to show, the landlord let out the premise to Supreme Pipe Syndicate, a partnership firm and in which, in he is a partner. Contrarily, the https://www.mhc.tn.gov.in/judis person with whom the landlord has entered into agreement has filed memo

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and affidavit denying the claim of Rahmathullah.”

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In the above said case, it is the case of relationship between the plaintiff and

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landlord/defendant. The Hon'ble Supreme Court while considering the facts and

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circumstances of the case under Order VII Rule 11, held that that the abuse of Court process can be interfered under Article 227 of Constitution of India. It is also held that when the facts

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are not disputed by the other side with regard to the nature of allegation, the application under Order 7 Rule 11 cannot be interfered by this Court.

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Admittedly, the 1^st defendant had not filed any documents to prove his case in O.S.No. 79 of 2013 which was dismissed for default. Though it is contended that the relief sought for in the present suit in O.S.No. 147 of 2019 for different cause of action, and it is not hit by rejudicata, it has to be decided by the trial Court after adducing evidence

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