M.Subramani v. Anbazhagan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.08.2009CORAM:THE HON’BLE MR. JUSTICE S.TAMILVANANS.A.No. 86 of 2008M.Subramani .. Appellant /Plaintiff-vs-Anbazhagan... Respondent/DefendantSecond Appeal filed under Section 100 of CPC against theJudgment and Decree dated 29.10.2007 made in A.S.No.461 of 2007 onthe file of the learned III Additional Judge, City Civil Court,Chennai confirming the order and decreetal order passed inI.A.No.3589 of 2006 made in O.S.No.4327 of 2004 on the file of the IAssistant Judge, City Civil Court, Madras dt.23.2.2007.For Appellant : Mr. V.LakshminarayananFor Respondent : Mr.S.RajendrakumarJ U D G M E N TThis Second appeal has been preferred against the judgment anddecree dated 29.10.2007 made in A.S.No.461 of 2007 on the file of theIII Additional Judge, City, Civil Court, Chennai confirming the orderand decreetal order passed in I.A.No.3589 of 2006 made in O.S.No.4327of 2004 dismissing the suit, on the file of the I Assistant Judge,City Civil Court, Chennai.2. It is an admitted fact that the appellant/plaintiff had filedthe suit, in O.S.No.4327 of 2004, on the file of the trial Courtseeking a decree declaring that the settlement deed, in documentNo.1157 of 1995 dated 22.03.1995, on the file of the Sub RegistrarOffice, Villivakkam as illegal, void abinitio and not binding on theplaintiff and to direct the respondent/defendant to deliver peacefulpossession of the property and for other consequential reliefs. Thesuit had been taken on file and the respondent/defendant also filedhis written statement. However, while the suit was pending, therespondent herein as defendant in the suit, filed an interlocutoryapplication in I.A.No.3589 of 2006, under Order VII Rule 11 CPCseeking an order rejecting the plaint, on the ground that afraudulent document had been filed by the appellant/plaintiff insupport of the suit claim. In the affidavit dated 20.02.2006, the https://hcservices.ecourts.gov.in/hcservices/ respondent/defendant has averred that he had addressed the Tahsildarquestioning the patta that was issued in the name of the appellantherein, for which, the Tahsildar sent his reply on 27.12.2005informing the respondent herein that no patta was issued in favour ofthe appellant and that the patta produced by the appellant herein wasa forged document. In support of his claim, the respondent had fileda xerox copy of the alleged communication. The appellant herein asrespondent/plaintiff filed his counter statement wherein, he haddenied the allegations levelled against him by therespondent/defendant. As per the averments made in the counter, theappellant herein has stated that the petition filed by the defendantwas totally devoid of merits and the respondent/defendant,suppressing the material fact that he had filed a suit in O.S.No.4344of 2005 seeking relief of recovery of possession of the property fromthe appellant's occupation and also for permanent injunction.According to him, the appellant/plaintiff had no knowledge whetherthe respondent/defendant had obtained any letter from the Tahsildaror not. The respondent herein having obtained a settlement deedfrom a person who has no right in the suit property and also a letterfrom a Tahsildar having no authority to issue the same, by producingthe same, in support of his claim and the trial court based on theunreliable document rejected the plaint.3.It is not in dispute that by order dated 23.02.2007, the TrialCourt allowed, the petition filed by the respondent/defendant wherebyrejected the plaint filed by the appellant herein. Aggrieved, bywhich the appeal in A.S.No.46 of 2007 was preferred by theappellant/plaintiff. Confirming the order and decreetal orderpassed by the Trial Court rejecting the plaint, the appeal wasdismissed by the Appellate Court by the impugned judgment dated29.10.2007 and hence the second appeal has been preferred by theappellant/plaintiff.4.Learned counsel appearing for the appellant raised thefollowing substantial questions of law in the second appeal:1.Whether the Court below are right in rejectingthe plaint when a cause of action for the institutionof the suit had been clearly disclosed in the plaint?2.Whether Order VII Rule 11 CPC can be invoked toreject the plaint relying upon the defence raised bythe defendant?3.Are the Court below justified in giving unduepreference to the unsubstantiated case of the defendantby relying upon the settlement deed, police complaintand other documents generated pending the proceedings? https://hcservices.ecourts.gov.in/hcservices/

5.Mr.V.Lakshminarayanan, learned counsel appearing for theappellant submitted that the court below without following themandatory procedure contemplated under Order VII Rule 11 of CPC, hadrejected the plaint, even after filing of written statement in thesuit. According to him, after numbering the suit and filing of thewritten statement, the Trial Court could not have rejected the plaintby an order passed in the interlocutory application, without decidingthe suit on merits. He mainly contended that the Courts below havesolely relied on the alleged reply sent by the Tahsildar to therespondent, though the same has no evidentiary value for rejectingthe plaint. Learned counsel also drew the attention of this Court toOrder VII Rule 11 of CPC which reads as follows:The plaint shall be rejected in the followingcases:-a)Where it does not disclose a cause of actionb)Where the relief claimed is undervalued, and theplaintiff, on being required by the Court to correctthe valuation within a time to be fixed by the Court,fails to do so;c)Where the relief claimed is properly valued butthe plaint is written upon paper insufficientlystamped, and the plaintiff, on being required by theCourt to supply the requisite stamp-paper within a timeto be fixed by the Court, fails to do so;d) where the suit appears from the statement inthe plaint to be bared by any law;e) where it is not filed in duplicatef)where the plaintiff fails to comply with theprovisions of rule 9In the instant case, admittedly the appellant/plaintiff has discloseda cause of action to maintain the suit and in the interlocutoryapplication, for rejecting the plaint, the respondent/defendant hasmade certain averments before the Trail Court that the patta producedby the plaintiff along with the plaint was a forged document. Therespondent herein further stated in the petition that he had receivedreply for his letter from the Tahsildar and came to know that nopatta had been issued by the Tahsildar hence, the patta produced bythe appellant could have been a forged document. Only on theaverments made by the respondent/defendant, the trial Court came tothe conclusion that the said document was forged one and accordinglywithout examining any witnesses to prove the genuines of thedocument, simply allowed the petition filed by the https://hcservices.ecourts.gov.in/hcservices/ respondent/defendant and rejected the plaint. It is not the case ofthe respondent/defendant that there is no cause of action as allegedin the plaint, to maintain the suit. Similarly, the valuation of thesuit and the payment of court fee thereon are not disputed by therespondent/defendant as contended by the learned counsel for thepetitioner/ plaintiff. Based on the plaint averments, the suitcannot be construed that it is barred by any law and further, thesuit had been numbered and subsequently the defendant also filed hiswritten statement. As per the proviso, if there is any time limitfixed by the Court for the correction or the valuation and paymentof court fee, for which time was not extended, in case there is non-compliance of the plaintiff, the same may be a ground for rejectingthe plaint. It is not in dispute that the trial court has gotjurisdiction to try the suit as per the plaint averments.6. As per Rule 11(f) of Order VII CPC, in case the plaintifffails to comply with the proviso to Rule 9 of Order VII CPC, withinthe time limit fixed by court the plaint can be rejected. In theinstant case, the averments made in the interlocutory applicationfiled by the respondent herein, before the trial court is that thepatta produced by the appellant/plaintiff along with the plaint was aforged document. According to the respondent/defendant as per thereply received from the Tahsildar, he came to know that no patta wasissued by the Tahsildar in favour of the appellant/plaintiff. Onlybased on the said averments, the Trial Court came to the conclusionthat the patta produced by the plaintiff was a forged document andaccordingly without examining any witness to prove the genuiness ofthe document the Trial court allowed the petition filed by thedefendant and rejected the plaint, though the suit was alreadynumbered by the court and written statement was also filed by therespondent/defendant.7.Learned counsel appearing for the appellant/plaintiffsubmitted that the trial court has not rejected the plaint, on theground that there was no cause of action for the institution of thesuit since the same had been clearly disclosed in the plaint, howeverthe order of rejection was confirmed by the Appellate Court. Learnedcounsel appearing for the appellant contended that the trial courthad rejected the plaint against law without proper appreciation ofevidence, and however, the Appellate Court confirmed the order ofrejection made by the trial Court, under Order Rule 7 Rule 11 CPC.8.The Hon'ble Supreme Court of India in HariShanker Jain vs.Sonia Gandhi reported in 2001(8) SCC 233 at page No.256 has held asfollows:"The petitions are hopelessly vague andcompletely bald in the allegations made, most ofwhich could not possibly be within the personalknowledge of the petitioners but still verified as https://hcservices.ecourts.gov.in/hcservices/ 'true' to their knowledge, without indicating thesource. Such pleadings cannot amount to disclosingany cause of action and are required to berejected/dismissed under Order VII Rule 11 CPC".It is clear that if the averments made in the plaint are vague indisclosing the cause of action to maintain the suit, that may be aground for rejecting the plaint, under Order VII Rule 11 CPC. In thepresent case, there is no such allegation for rejecting the plaint.In fact the suit was numbered after considering the plaint averments.9.In the decision reported in Mayar (H.K.) Ltd., and Others vs.Owners & Parties, Vessel M.V. Fortune Express and Others reported in2006(3) SCC 100, the Hon'ble Supreme Court has held with regard tothe scope of Order VII Rule 11 CPC as follows:"...... the plaint cannot be rejected on thebasis of the allegations made by the defendant in hiswritten statement or in an application for rejectionof the plaint. The Court has to read the entireplaint as a whole to find out whether it discloses acause of action and if it does, then the plaint cannotbe rejected by the court exercising the power underOrder VII Rule 11 of the Code. Essentially, whetherthe plaint discloses a cause of action, is a questionof fact which has to be gathered on the basis of theaverments made in the plaint in its entirety takingthose averments to be correct. A cause of action is abundle of facts which are required to be proved forobtaining relief and for the said purpose, thematerial facts are required to be proved for obtainingrelief and for the said purpose, the material factsare required to be stated but not the evidence exceptin certain cases where the pleadings relied on are inregard to misrepresentation, fraud, willful default,undue influence or of the same nature. So long as theplaint discloses some cause of action which requiresdetermination by the court, the mere fact that in theopinion of the Judge the plaintiff may not succeedcannot be a ground for rejection of the plaint. Inthe present case, the averments made in the plaint, ashas been noticed by us, do disclose the cause ofaction and, therefore, the High Court has rightly saidthat the powers under Order VII Rule 11 of the Codecannot be exercised for rejection of the suit filed bythe plaintiff-appellants".10.As per Order VII Rule 11 CPC, the plaint shall be rejectedwhere it does not disclose a cause of action, Where the relief https://hcservices.ecourts.gov.in/hcservices/ claimed is undervalued, and the plaintiff, on being required by theCourt to correct the valuation within a time limit fixed by theCourt, fails to do so; Where the relief claimed is properly valued,but the plaint is insufficiently stamped, and the plaintiff, on beingrequired by the Court to supply the requisite stamp-paper within atime to be fixed by the Court, fails to do so; where the suit appearsfrom the statement in the plaint to be bared by any law; where it isnot filed in duplicate, where the plaintiff fails to comply with theprovisions of Order VII Rule 9 CPC. As per Rule 9 of Order VIICPC, once the Court ordered that the summons to be served on thedefendants in the manner provided in Rule 9 of Order V, it willdirect the plaintiff to present as many copies of the plaint on plainpaper, for the defendants within seven days from the date of suchorder along with requisite fee for service of summons on thedefendants. The said provision has been inserted by Act 46 of 1999and Act 22 of 2002. It is not in dispute that no such non-complianceon the side of the appellant/plaintiff was alleged by therespondent/defendant. It is seen that no conditional order had beenpassed by the Trial Court for rejecting the plaint, subsequently fornon-compliance of the order.11.The Honourable Supreme Court in the decision in Mayar (H.K.)Ltd. and others vs. Owners & Parties, Vessel M.V.Fortune Express andOthers reported in 2006(3)SCC 100 has held that as per Order VII Rule11 CPC, the plaint shall not be rejected, whether the plaintdiscloses any cause of action, for maintaining the suit. So long asthe plaint discloses some cause of action which requiresdetermination by the Court, likelihood of success of plaintiff cannotbe a ground for rejection of the plaint.12.It is well settled that a plaint cannot be rejected on thebasis of some allegations made by the defendants in the writtenstatement or in an interlocutory application for rejection of theplaint. The court while exercising powers under Order VII Rule 11 ofthe Code,has to consider whether there is sufficient cause of actiondisclosed in the plaint. However, the same is a question of factwhich could be decided based on application of evidence and not onthe basis of the averments made in the written statement or counter.The Court cannot decide the correctness of the averments to rejectthe plaint based on the mere averments made by therespondent/defendant.13.The Hon'ble Apex Court in C.Natarajan vs. Ashim Bai &another, reported in 2008-1-LW 96, has ruled that in a case where thedefendant did not accept that the plaintiff was in possession, anissue in that behalf is therefore, required to be framed, whichrequired to be gone in to. In such circumstances, limitation wouldnot commence unless there has been a clear and unequivocal threat tothe right claimed by the plaintiff. Hence, the application filedunder Order VII Rule 11 (d) was held not maintainable. https://hcservices.ecourts.gov.in/hcservices/

14.In the light of various decisions rendered by the Hon'bleApex Court, and this Court, it has been made clear that a plaint canbe rejected by the Trial Court under Order VII Rule 11 CPC, only whenthe plaint does not disclose any cause of action or the alleged causeof action is insufficient to maintain the suit. However, when theplaint discloses cause of action for maintaining the suit, whichrequires determination by the Court, merely based on the opinion ofthe Judge, that the plaintiff may not succeed in the case, the courtcannot decide the same as a ground for rejection of the plaint underOrder VII Rule 11 of the code of Civil Procedure. 15.In the instant case, admittedly the appellant/plaintiff hasdisclosed cause of action for maintaining the suit, seeking therelief of declaration and direction to the defendant for delivery ofpossession of the property and other consequential reliefs. Basedon the cause of action, the case was taken on file by the trialcourt, which is not in dispute. Subsequently, the respondent hereinas defendant, filed his written statement. In the pending suit therespondent filed Interlocutory Application in I.A.No.3589 of 2006seeking an order to reject the plaint under Order VII Rule 11 CPC.According to the respondent herein no certificate was issued by theGovernment and if there is any such document, the same could havebeen a forged one and further averred that the respondent hadaddressed the concerned Tahsildar and enquired whether patta wasissued in the name of the appellant/plaintiff and for which theTahsildar allegedly sent reply, dated 27.12.2005 informing therespondent/defendant that the patta produced by theappellant/plaintiff was a forged document. Based on the complaintgiven by the respondent, a criminal case was registered by policeagainst the appellant. 16.It is an admitted fact that the suit was taken on file by thetrial court, based on the cause of action disclosed in the plaint andwritten statement was also filed, by the respondent/defendant, hence,it is not open to the trial court to pass an order in theinterlocutory application, rejecting the plaint, holding that thesuit property belonged to the respondent/defendant and that theappellant had filed the suit with a view to grab the property, basedon the forged document, merely believing the one sided version of therespondent/defendant, without examining any witness providingopportunity to the other side and legally considering the same onmerits. Before the Trial, the Court below could not decide theprobative or evidentiary value of the document filed by thepetitioner/plaintiff based on the averments made in the affidavitfiled by the respondent/defendant, when there is a denial by otherside. Even the criminal complaint filed by the respondent againstthe appellant and the criminal case being registered by the policewould not be sufficient to reject the plaint on the ground that thedocuments produced by the appellant/plaintiff was a forged document.Merely based on the allegations made by the respondent, without https://hcservices.ecourts.gov.in/hcservices/ providing reasonable opportunity to the other side to raise hisdefence by adducing oral evidence.17.As contemplated under Order VII Rule 11 CPC, plaint may berejected only in the following cases :a) where it does not disclose a cause of action;b) where the relief claimed is undervalued, andthe plaintiff, on being required by the Courtto correct the valuation within a time to befixed by the Court, fails to do so;c) where the relief claimed is properly valuedbut the plaint is written upon paperinsufficiently stamped, and the plaintiff, on beingrequired by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails todo so;d) where the suit appears from the statement inthe plaint to be barred by any law;e) where it is not filed in duplicate;f) where the plaintiff fails to comply with theprovisions of Rule 9.18.Ignoring the mandatory provisions as contemplated under OrderVII Rule 11 CPC, plaint cannot be rejected by any Court Where thetime fixed by the Court for correction being carried out or supplyingthe requisite stamp-papers payment of deficit court fee only byproviding opportunity, court can pass an order for the non-compliance, as there is no other go for the court to keep the suitpending indefinitely, when there is default without anyjustification. Even for refusal to extend such time in certainspecial circumstances would cause grave injustice to the plaintiffand the Trial Court should take note of the same, while passing anorder in rejecting the plaint, to meet the ends of justice. In theinstant case, there is no such circumstance for rejecting the plaint.19.Since the plaint discloses cause of action for the reliefsought for in the suit, merely based on the averments made by thedefendant, in his affidavit filed in support of an InterlocutoryApplication, without considering the issues on merits in the suit, asper order VII Rule 11 CPC, the Court below could not have allowed theInterlocutory Application and rejected the plaint. The appellatecourt, without considering the scope of Order VII Rule 11 CPC, hasconfirmed the order and decretal order passed by the Trial Court anddismissed the appeal preferred by the appellant/plaintiff. https://hcservices.ecourts.gov.in/hcservices/

20.It is an admitted fact that the appellant/plaintiff hasdisclosed the cause of action for the institution of the suit, andafter considering the alleged cause of action, the case was taken onfile by the trial court and subsequently, the respondent/defendantalso filed his written statement. Therefore, this Court is of aconsidered view that the Court below is not correct in rejecting theplaint, subsequently, relying on the averments made by the defendant,in his interlocutory application and pass an order, rejecting theplaint, under Order VII Rule 11 CPC. Hence rejection of the plaintby the trial court and confirmation of the same by the appellatecourt are unsustainable in law. Therefore, the substantial questionsof law 1 & 2 framed in this second appeal are answered in favour ofthe appellant/plaintiff and against the respondent/defendant. TheHon'ble Apex Court in I.T.C.Ltd. vs. Debt Recovery Appellate Tribunalreported in 1998(2) SCC 70 has held that plaint could be rejectedeven after framing of issues and when the case is posted forrecording evidence, when it is clearly brought to the notice of thecourt that the court has no jurisdiction to try the suit and isstatutorily barred. However, the aforesaid decision is notapplicable to the facts and circumstances of this case, since thereis no statutory bar to decide the suit by the trial Court.21.It is an admitted fact that the appellant/plaintiff had filedfive documents, namely the alleged Patta, dated 20.05.1976,Settlement deed executed by one Ganesan, Family card of theplaintiff, Death Certificate, dated 17.04.1997 issued by theCorporation of Chennai, Certificate issued by the VillageAdministrative Officer in respect of the suit property. After thecase was filed on 24.07.2004, the respondent/defendant filed hiswritten statement on 10.12.2004. In the affidavit relating toI.A.No.3589 of 2006 in the suit, the respondent / defendant hasstated in paragraph 3 as follows :"I submit that the entire suit is based on documentNo.5 of the plaint, a certificate issued by the VillageAdministrative Officer of Purasawalkam – Perambur Taluk inthe very beginning itself, I stated that no suchcertificate has been issued by the Government and if atall there is one such document, it is a forged one.Therefore, I subsequently gave a complaint to the policeand they have found out that it is only a forged one andregistered a case not only against the respondent herein,but also against the particular officer, who was helpedthe respondent to get that certificate. Both of them wereremanded by the police and I understand that they areunder the custody. In the meanwhile, I have also written aletter to the Tahsildar, enquiring whether patta is issuedin the name of the respondent. To the said letter, theTahsildar has given a reply to me on 27.12.2005, informingme that no patta was issued and the patta produced by the https://hcservices.ecourts.gov.in/hcservices/ respondent is a forged one. I am herewith filing the xeroxcopies of the communications and also the paperpublication informing the public that the respondent andthe official have been arrested and a criminal case hasbeen registered against them. I am also filing herewithFIR copy".22.By way of filing counter, the appellant/plaintiff has deniedthe allegations raised by the respondent herein and further, statedthus: " the defendant knows pretty well that he doesnot have a case to sustain and hence, he isattempting to avoid the witness box by filing onevexatious petition after another". When there areaverments and counter averments by the appellant andthe respondent relating to the InterlocutoryApplication, based on the averments in the plaint bythe plaintiff and the written statement by thedefendant, the Court below, without assessing theaverments and the counter averments, has unilaterallyaccepted the version of the respondent and rejectedthe plaint,which is an erroneous procedure, notcontemplated under Order VII Rule 11 CPC, however,that was overlooked by the appellate court, hence,the third substantial question of law is alsoanswered in favour of the appellant and against therespondent."23.When there are averments by the plaintiff, in the form ofplaint and counter averments by the defendant in his writtenstatement, merely accepting the averments made in the affidavit ofthe defendant, ignoring the counter affidavit field by the plaintiff,the trial court has rejected the plaint, which is against the mandateof Order VII Rule 11 CPC. It is a settled proposition of law that nocourt can accept the one sided view, when the same is refused by theother side, without testifying the genuineness of the claim or thedefence. Hence, the third substantial question is also answered infavour of the appellant/plaintiff and against the finding of thecourts below.24.In the result, the second appeal is allowed and the impugnedJudgment and Decree passed by the courts below are set aside and thematter is remitted back to the trial court to dispose the same,solely on merits, uninfluenced by the findings of this court in thissecond appeal. Both the parties are directed to bear their owncosts in this second appeal. As the suit relates to the year 2004,the Trial Court is directed to dispose the same, according to law,within a period of six months, from the date of receipt of the order.Registry is directed to return the original papers relating to thesuit if any. https://hcservices.ecourts.gov.in/hcservices/

25.The court fee paid by the appellant is directed to berefunded as per Rules. If any amount is paid by the appellanttowards the costs in the suit and in the first appeal, the appellantwould be entitled to get returned from the respondent / defendant. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmiTo1.The I Assistant Judge, City Civil Court, Chennai.2.The III Additional Judge, City Civil Court, Chennai. 1 cc To Mr.V.Raghavachari, Advocate, SR.429871 cc To Mr.S.Rajendrakumar, Advocate, SR.43285S.A.No. 86 of 2008VSV(CO)sra 20/07/2010