1. This Civil Revision Petition has been filed to set aside the fair and decreetal order dated 07.10.2014, passed in I.A.No.73 of 2014 in O.S.No.89 of 2013 by the learned District Munsif, Mudhukulathur, Ramanathapuram District.
2. The petitioner, who is the brother of the respondent, is the defendant and the respondent is the plaintiff in the suit in O.S.No.89 of 2013 on the file of the District Munsif Court, Mudhukulathur, Ramanathapuram District. The respondent filed the suit for recovery of possession. The petitioner filed I.A.No.73 of 2014 under Order VII Rule 11 C.P.C. to reject the plaint. According to the petitioner, his father and the respondent settled the property on him by Inam settlement on 05.04.1982 and from that date, the petitioner is in possession and enjoyment of the property. The entire revenue records stand in the name of their father only. The respondent did not file suit, when the father of the petitioner was alive. After 31 years, the respondent has filed the suit for recovery of possession. As per Article 65 of the Limitation Act, there is no cause of action arose for the suit.
3. The respondent/plaintiff has filed counter affidavit stating that he was working in Abroad and sent money to his father. From and out of the said money, the respondent''s father celebrated the marriage of his sisters and brothers. The petitioner was not earning any amount. By threatening his father, the petitioner got Inam settlement in his favour. On coming to know about the same, the respondent and other legal heirs of his father, gave a complaint to Jamath on 20.03.1983. The Jamath cancelled the Inam settlement and the property was partitioned among all the legal heirs of their father. The suit property was allotted to the respondent and he is the owner of the suit property and was in possession and enjoyment of the same. Within three years prior to filing of the suit, the petitioner trespassed into the suit property and the respondent has filed the suit for recovery of possession within 12 years prescribed by the Limitation Act.
4. The learned District Munsif, Mudhukulathur, considering the averments made in the plaint, affidavit and counter affidavit, dismissed the application holding that the application filed by the petitioner, is not maintainable and the contention of the petitioner can be decided only after evidence being let in by the parties.
5. Against the said order of dismissal, dated 07.10.2014, the petitioner has come out with the present Civil Revision Petition.
6. The learned counsel for the petitioner reiterated all the grounds raised in the Civil Revision Petition and submitted that no cause of action has arisen for the suit and the suit is barred by limitation. The Courts have inherent power to reject the vexatious litigation.
7. In support of his submissions, the learned counsel for the petitioner relied on the following judgments:
(i) 2011 (3) MLJ 21 [M.V.Jayavelu Vs. E.Umapathy],
wherein at paragraphs 4 and 9, it has been held as follows:
"4. The learned Senior Counsel also relied upon the
judgment in Nesammal and Another v. Edward and
Another, 1998 (3) CTC 165, wherein this Court has held
that the provisions of Order 7 Rule 11 are not exhaustive
and the lower Court should reject the plaint when the
allegations reveal abuse of process of law and also relied
upon the judgment in A. Sreedevi v. Vicharapu
Ramakrishna Gowd, 2006 (1) MLJ 116 : 2005 (5) CTC
748, wherein this Court has held that clever drafting
should not confuse the mind of the Court and the Court
has to find out whether any case has been made out in the
plaint and therefore, submitted that lower court erred in
dismissing the application in the rejection of plaint.
9. As regards the period of limitation is concerned,
no doubt, as per the judgment of the Hon''ble Supreme
Court rendered in the matter of Gunwantbhai Mulchand
Shah and Others v. Anton Ellis Farel and Others, in AIR
2006 SCW 1377 : 2006 (2) MLJ 399 unless there is a
refusal on the part of the other side, the limitation will not
start in a suit for specific performance. In this case, the
said judgment cannot be applied as the plaintiff has not
produced any document to prove that there was an
agreement of sale between the parties. Further, the
alternative prayer is also clearly barred by limitation as
admittedly the amount was paid in the year 2000 and in
the year 2008, the same cannot be recovered. It may be
that the plaintiff is entitled to be in possession of the
property till the defendants refund the amount but that is
not a ground to maintain the present suit filed by the
plaintiff. Therefore, according to me, the plaint does not
disclose any cause of action for filing a suit for specific
performance and the claim for refund of Rs.2,00,000/- is
also barred by limitation. Hence, the plaint is liable to be
rejected as held by this Court in the judgment in
Palanisami, N. v. A. Palaniswamy, 1998 (2) MLJ 764 : 1998
(3) CTC 165 that the provisions of Order 7, Rule 11 is not
exhaustive and the suit can be rejected when it is a clear
case of abuse of process of law. Further, in the judgment
of Palanisami, N. v. A. Palaniswamy (supra), it has been
held as follows:
"8. ...The trial Court is also bound to see that
the valuable time is not taken away by proceeding
the trial in the vexatious litigation, which is clearly
abuse of process of law. In fact, in the decision
reported in T. Arivandandam v. T.V. Satyapal and
Another, 1977 (4) SCC 467, the Honourable
Supreme Court held that it is also duty bound not to
take such cases. In para 7 of the judgment, Their
Lordships held that,
"We regret the infliction of the ordeal upon
the learned Judge of the High Court by a callous
party more than regret the circumstances that the
party concerned has been able to prevail upon
one lawyer or the other to present to the Court a
case which was disingenuous or worse. It may be
a valuable contribution to the cause of justice if
counsel screen wholly fraudulent and frivolous
litigation refusing to be beguiled by dubious
clients. And remembering that an advocate is an
officer of justice he owes it to society not to
collaborate in shady actions. The Bar Council of
India, we hope will activate this obligation. We are
constrained to make these observations and hope
that the co-operation of the Bar will be readily
forthcoming to the Bench for spending judicial
time on worth while disputes and avoiding the
distraction of sham litigation such as the one we
are disposing of Another moral of this unrighteous
chain litigation is the gullible grant of ex-parte
orders tempts gamblers in litigation into easy
courts. A judge who succumbs to ex parte
pressure in unmerited cases helps devalue the
judicial process. We must appreciate Shri
Ramasesh for his young candour and correct
advocacy."
9. In support of his submissions, the learned counsel for the respondent relied on the following judgments: (i) 2008 (1) MLJ 1278 (SC) [C.Natarajan Vs. Ashim Bai and another], wherein at paragraphs 7 and 18, it has been held as follows:
11. The petitioner has filed the application to reject the plaint on the ground that the suit is barred by limitation and no cause of action has arisen. According to the respondent, Inam settlement, dated 05.04.1982, was cancelled by Jamath and the property was partitioned among the legal heirs and the suit property was allotted to the respondent on 20.08.1983. From that date, he was in possession and enjoyment of the suit property. The petitioner has trespassed into the suit property within three years from the date of filing of the suit. In view of such averments in the plaint, the learned District Munsif has rightly dismissed the application. The judgments relied on by the learned counsel for the petitioner are not applicable to the facts of the present case and the judgments relied on by the learned counsel for the respondent are applicable to the facts of the present case. There is no irregularity or illegality in the fair and decreetal order dated 07.10.2014, passed in I.A.No.73 of 2014 in O.S.No.89 of 2013, by the learned District Munsif, Mudhukulathur, warranting interference by this Court.
12. In result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
9. In Azhar Hussain v. Rajiv Gandhi, AIR 1986
SC 1253 : 1986 (Supp) SCC 315, in Para 12, Their
Lordships held that,
"Learned Counsel for the Petitioner has next
argued that in any event the powers to reject an
election petition summarily under the provisions
of the Code of Civil Procedure should not be
exercised at the threshold. In substances, the
argument is that the Court must proceed with the
trial record the evidence, and only after the trial
of the election petition is concluded that the
powers under the Code of Civil Procedure for
dealing appropriately with the defective petition
which does not disclose cause of action should be
exercised. With respect to the learned Counsel, it
is an argument which it is difficult to comprehend.
The whole purpose of conferment of such powers
is to ensure that a litigation which is meaningless
and bound to prove abortive should not be
permitted to occupy the time of the Court and
exercise the mind of the Respondent. The word of
Damocles need not be kept handing over his head
unnecessarily without point or purpose. Even in
an ordinary civil litigation the court readily
exercises the power to reject a plaint if it does not
disclose any cause of action. Or the power to
direct the concerned party to strike out
unnecessary scandalous, frivolous or vexatious
parts of the pleadings. Or such pleadings which
are likely to cause embarrassment or delay the
fair trial of the action or which is otherwise an
abuse of the process of law."
10. The same principle was followed in the
very recent decision of Supreme Court in I.T.C.
Limited v. Debts Recovery Appellate Tribunal, AIR
1998 SC 634 : 1998 (2) SCC 70 : 1998 (2) MLJ 79.
In that case, Their Lordships followed the decision in
Ashar Hussain v. Rajiv Gandhi, (1986) Supp. SCC
315.
11. In the event of all these decisions the
argument of the counsel for the petitioners that
unless the conditions are satisfied under Order 7
Rule 11 of Code of Civil Procedure, the plaint cannot
be rejected is without any basis. The provisions of
Order 7 Rule 11 are not exhaustive and the Court
has got inherent powers to see that the vexatious
litigations are not allowed to take or consume the
time of the Court. In appropriate cases, directions
can be given by this Court as well as the Court in
which the suit is filed not to entertain the suit, if on
reading the allegations in the plaint it reveals that
the same is abuse of process of law.""
(ii) 1998 (III) CTC 165 [Nesammal and another Vs.
Edward and another], wherein at paragraph 8, it has been held as
follows:
"8. Apart from the above decisions, the trial Court is
also bound to see that the valuable time is not taken away
by proceeding the trial in the vexatious litigation, which is
clearly abuse of process of Law. ....."
8. The learned counsel for the respondent reiterated the
averments made in the counter affidavit and submitted that the
learned District Munsif has rightly dismissed the application and for
considering the application to reject the plaint, the only averments
made in the plaint are necessary.
9. In support of his submissions, the learned counsel for the respondent relied on the following judgments: (i) 2008 (1) MLJ 1278 (SC) [C.Natarajan Vs. Ashim Bai and another], wherein at paragraphs 7 and 18, it has been held as follows:
"7. An application for rejection of the plaint can be
filed if the allegations made in the plaint even if given face
value and taken to be correct in their entirety appear to be
barred by any law. The question as to whether a suit is
barred by limitation or not would, therefore, depend upon
the facts and circumstances of each case. For the said
purpose, only the averments made in the plaint are
relevant. At this stage, the court would not be entitled to
consider the case of the defence. [See Popat and Kotecha
Property v. State Bank of India Staff Association, 2005 (7)
SCC 510].
18. We have noticed hereinbefore that the
defendant, inter alia, on the plea of identification of the
suit land the deeds of sale, under which the plaintiff has
claimed his title, claimed possession. The defendant did
not accept that the plaintiff was in possession. An issue in
this behalf is, therefore, required to be framed and the
said question is, therefore, required to be gone into.
Limitation would not commence unless there has been a
clear and unequivocal threat to the right claimed by the
plaintiff. In a situation of this nature, in our opinion, the
application under Order VII Rule 11(d) was not
maintainable. The contentions raised by the learned
Counsel for the respondent may have to be gone into at a
proper stage. Lest it may prejudice the contention of one
party or the other at the trial, we resist from making any
observations at this stage."
(ii) 2015 (1) MWN (Civil) 622 [Kolli Venkata Mohan Rao
and another Vs. J.M.Patricia and others], wherein at paragraph
21, it has been held as follows:
"21. Further, the question of limitation was pressed
into service also by contending that the impugned
transactions were made in the year 2000 and 2003 and
the suit was filed only in the year 2012 and therefore, it is
barred by limitation. The discussion made by me supra,
while considering the limitation aspect, more particularly
by considering the fact that the plaintiffs have already
approached this Court as early as in the year 2005, is
equally applicable to the above issue also. Even otherwise,
it is to be noted that the question of limitation is not purely
a question of law. On the other hand, it is a mixed
question of law and fact. Therefore, the date of knowledge
of the impugned transactions certainly plays a major rule
to decide as to whether the relief is barred by limitation or
not. Such decision is possible only by allowing the parties
to lead evidence by conducting trial, and therefore, such
mixed question of law and fact cannot be considered and
decided in an application filed under Order 7 Rule 11 CPC,
especially when the plaint averments on the face of it, do
not show that such exercise is unnecessary and the Court
can come to the conclusion based on the plaint averments
themselves. Therefore, on the question of limitation, the
plaint cannot be rejected, as the averments made therein
do not warrant such rejection."
(iii) 2015 (1) MWN (Civil) 459 [P.Thillai Selvan vs.
Shyna Paul and another], wherein at paragraph 15, it has been
held as follows:
"15. A perusal of the abovesaid decision would show
that an executor or a legatee claiming under a Will can file
a Suit or initiate action and however, the Court cannot
pass a Decree or Final Order in such Suit or action in the
absence of a Probate or a Letters of Administration in
regard to such a Will. In this case, the question as to
whether the action initiated by the Plaintiff is an action
which can be initiated only when he gets a right or
otherwise, is purely a question of fact that has to be gone
into by the Court below during the time of trial to decide
the question as to whether the Suit was filed within the
period of limitation. The abovesaid decision of the Apex
Court does not deal with the Application filed under Order
7, Rule 11, C.P.C. and on the other hand, it has dealt with
the issue as to whether Section 213 of the Indian
Succession Act, 1925, bars an executor or a legatee under
a Will from establishing any right under a Will, unless
Probate or Letters of Administration is obtained. Therefore,
to apply the said decision to the present case, the facts
and circumstances of the case supported by material
evidence, have to be gone into by the Court below at the
time of trial. Therefore, in my considered view, the said
decision cannot be applied while deciding an Application
under Order 7, Rule 11, C.P.C. seeking for rejection of the
Plaint itself and hence, the abovesaid decision will not help
the Petitioner herein, at this stage, in any manner.
However, it is open for the Petitioner/Second Defendant to
canvass the said issue by filing Written Statement and
substantiate his stand during the time of trial. It is
needless to say that the Trial Court will consider all those
issues including the issue of payment of Court-fee as well
as the question of limitation, and give its finding on merits
and in accordance with law, in all those issues."
10. I have considered the submissions of the learned counsel
appearing for the parties and perused the materials available on
record and the judgments relied on by the learned counsel for the
parties.
11. The petitioner has filed the application to reject the plaint on the ground that the suit is barred by limitation and no cause of action has arisen. According to the respondent, Inam settlement, dated 05.04.1982, was cancelled by Jamath and the property was partitioned among the legal heirs and the suit property was allotted to the respondent on 20.08.1983. From that date, he was in possession and enjoyment of the suit property. The petitioner has trespassed into the suit property within three years from the date of filing of the suit. In view of such averments in the plaint, the learned District Munsif has rightly dismissed the application. The judgments relied on by the learned counsel for the petitioner are not applicable to the facts of the present case and the judgments relied on by the learned counsel for the respondent are applicable to the facts of the present case. There is no irregularity or illegality in the fair and decreetal order dated 07.10.2014, passed in I.A.No.73 of 2014 in O.S.No.89 of 2013, by the learned District Munsif, Mudhukulathur, warranting interference by this Court.
12. In result, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
