BanianLabours Progressive UnionRep. By its Secretary K.RamakrishnanOld Door No.279, New No.19,Kumaran RoadTiruppur v. Suguna Devi. R.2.M.Senthamil Selvan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 7-8-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD No.463 of 2004Coimbatore District BanianLabours Progressive UnionRep. By its Secretary K.RamakrishnanOld Door No.279, New No.19,Kumaran RoadTiruppur... Petitioner vs1.Suguna Devi. R.2.M.Senthamil Selvan.. RespondentsCivil revision petition preferred under Article 227 of theConstitution of India against the return order dated 5.3.2004 passed bythe District Munsif, Tiruppur, in O.S.SR.No.1565 of 2004.For Petitioner: Mr.M.MuthappanFor Respondents: Mr.Menon for R1 Mr.V.R.Ramesh for R2ORDERAn order of the learned District Munsif, Tiruppur, returning a plaintin O.S.SR.No.1565 of 2004 for rectification of certain defects, is thesubject matter of challenge in this revision petition at the instance ofthe plaintiff.2.The Court heard the learned Counsel for the petitioner and also therespondents, who were shown as defendants in that plaint. 3.The revision petitioner namely Coimbatore District Banian LaboursProgressive Union, represented by its Secretary, presented a plaint beforethe District Munsif's Court, Tiruppur, for a declaration that the decreemade by the said Court in O.S.No.61 of 2004 in favour of the firstrespondent and against the second respondent is a collusive one, and ithas to be declared as null and void, and for consequential reliefs. Thesaid plaint was presented before that Court on 4.3.2004. The same wasreturned for the purpose of re-presentation along with the certified copyof the decree in O.S.No.61/2004. Instead of re-presenting the plaintalong with the certified copy of the decree in O.S.No.61/2004, theplaintiff therein has brought forth this revision before this Court. 4.In support of the revision petition, the learned Counsel for thepetitioner would submit that the petitioner is a tenant in the suitproperty from 1989 onwards; that at that time, they made an advance of https://hcservices.ecourts.gov.in/hcservices/ Rs.25,000/-; that the second respondent herein has executed a letter toconvey the property for a valuable consideration in May 2003 by gettingRs.50,000/-; that subsequently, the second respondent has sold theproperty to the first respondent on 4.12.2003 under a registered saledeed; that while the matter stood thus, the first respondent is attemptingto demolish the property which was actually prevented by the plaintiff byfiling a police complaint on 21.2.2004; that while so, O.S.No.61/2004 wasfiled by the first defendant against the second defendant on 23.2.2004 inwhich the second respondent herein appeared on 1.3.2004 and submitted tothe decree, and thus, a collusive decree came to be passed inO.S.No.61/2004; that in that suit, there was a specific prayer fordemolition of the existing building in which the petitioner hereincontinued to be in possession as a tenant; that the fact that thepetitioner herein is a tenant in the said premises and also in possessionof the property has been thoroughly suppressed in the said suit; thatpursuant to the collusive decree, an attempt was made by the firstrespondent to demolish the property; that at that juncture, the instantsuit was filed; but, the same has been returned by the lower Court statingthat the certified copy of the decree in O.S.No.61/2004 has got to befiled, and at this juncture, the revision has been brought forth beforethis Court.5.Added further the learned Counsel that from the facts, it would bequite clear that the said suit itself was a collusive one; that on the daywhen O.S.No.61/2004 was filed, that was on 23.2.2004, the second defendantnamely the second respondent herein, who was shown as the sole defendantin that suit, had no iota of right at all; that the sole defendant thereinalso appeared before the Court within a short span of five days and alsosubmitted to the decree; that all would clearly indicate the collusionbetween the parties; that this contention has been strengthened by thesuppression of the fact that the petitioner is a tenant, and he is inpossession; that it was only intended to demolish the property andthereby, to evict the petitioner herein, and under the circumstances, itwas a collusive suit; that by playing fraud, a decree has been obtained,and hence, it has got to be set aside. 6.In support of his contention, the learned Counsel relied on twodecisions of this Court reported in (i) 1998 (I) CTC 470(J.SIVASUBRAMANIAN AND ANOTHER V. N.GOVINDARAJAN AND ANOTHER) and (ii)2002 (I) CTC 277 (S.VISWANATHAN V. M/S.SRI MURUGA AGENCIES).7.Contrary to the above contentions, the learned Counsel for therespondents would submit that in the instant case, this revision has beenbrought forth aggrieved over the order of return of a plaint; that therewas a direction for the production of the certified copy of the decree inO.S.No.61/2004; that the plaintiff who is the revision petitioner herein,sought a declaration that the decree what was passed in O.S.No.61/2004,was collusive and fraudulent and would not be binding; that under thecircumstances, certified copy of the decree in O.S.No.61/2004 should havebeen produced; that since it was not produced, the plaint was rightlyreturned; and that without producing a certified copy, now, the revisionhas been kept pending for a period of three years. 8.Added further the learned Counsel that in the instant case, therewas no collusion or fraud played, as put forth by the opposite party; thatit is true that the petitioner was originally a tenant; that they have https://hcservices.ecourts.gov.in/hcservices/ actually vacated and handed over possession in 2002; that thereafter, in2003, the property was actually purchased by the first respondent from thesecond respondent for a valuable consideration; that the first respondentwas about to demolish the same for the purpose of reconstruction; thatthere was interference by the petitioner by lodging a police complaint andalso filing a suit, the instant one; that the plaint has been returned;that now, at this juncture, they have brought forth the revision beforethis Court; that pending the revision, they got an interim stay that thereshould not be any interference by the respondents herein; that now, bytaking advantage of the order of this Court, they got into the propertyas on today; that further, a contempt application has been filed by themstating that there was disobedience of the orders of this Court; that thesaid contempt application has also been dismissed by this Court; that now,there is neither collusion nor fraud in obtaining the decree; thatO.S.No.61/2004 was only for permanent injunction to restrain the vendor ofthe property who is the second respondent herein, shown as defendanttherein, and who was actually interfering with the possession; that underthe circumstances, the relief of permanent injunction was asked for; thatit has been granted, and hence, the revision has got to be dismissed.9.The Court paid its anxious consideration on the rival submissionsmade. 10.This revision has been brought forth, as it is evident, only on anorder of return of a plaint presented by the petitioner before theDistrict Munsif's Court, Tiruppur. The suit was filed seeking adeclaration that the decree passed in O.S.No.61/2004 by the firstrespondent against the second respondent was obtained fraudulently andcollusively and for consequential reliefs. The plaint was returned forthe production of the certified copy of the decree in O.S.No.61/2004,which, in the opinion of this Court, was rightly done by the Court below.The cause of action for the petitioner in filing the suit was actually thedecree that was passed in O.S.No.61/2004, and hence, a certified copy ofthe decree should have been filed along with the plaint by the plaintiff,but not done. Under the circumstances, it was rightly returned for theproduction of the certified copy, and there cannot be any impediment forthe revision petitioner in filing the certified copy of the decree inO.S.No.61/2004. 11.The second contention put forth by the petitioner's side that inO.S.No.61/2004, a decree was obtained collusively and fraudulently, andhence, it has got to be set aside, and this Court in exercise of itspowers under Article 227 of the Constitution of India, can set aside thedecree, in the opinion of this Court, cannot be countenanced in theinstant case. It is true that the learned Counsel for the petitionerrelied on a decision of this Court reported in 1998 (I) CTC 470(J.SIVASUBRAMANIAN AND ANOTHER V. N.GOVINDARAJAN AND ANOTHER). A perusalof this decision would clearly reveal that in that case, both therespondents have thoroughly admitted the possession of the petitioners.But, in the case on hand, it is not so. According to the petitioner, heis a tenant under the second respondent in respect of the property, andthere was a letter executed by the second respondent in favour of thepetitioner by getting Rs.50,000/- in the month of May 2003 whereby it wasagreed by the second respondent that he would sell the property for aconsideration to be agreed upon by the parties. As far as that letter wasconcerned, whether it is true, genuine and acceptable and would be binding https://hcservices.ecourts.gov.in/hcservices/ on the party is a question to be decided by the Court on appreciation ofevidence. 12.Now, as regards the contention put forth by the petitioner's sidethat he is a tenant and continuing to be in possession of the property,the second respondent in the course of the counter in the contemptapplication has categorically stated that the petitioner vacated thepremises in 2002; but, he has again got into the property, and thus, he isa trespasser. Now, whether the petitioner continues to be a tenant andwhether he is in possession or not so are also matters to be canvassedbefore the lower Court and to be decided on that issue on evidence. Now,what are all brought to the notice of the Court was that a suit was filedin O.S.No.61/2004 on 23.2.2004 against the sole defendant, who is thesecond respondent herein and who also appeared before the Court on1.3.2004, and he also submitted to the decree, and hence, the learnedCounsel for the petitioner would submit that it was a collusive decree.Merely because of the fact that the defendant appeared before the Courtshortly and submitted to the decree, it cannot be inferred that it was acollusive decree. But, the Court has to appraise of the circumstancesattendant over the same. Now, the suit is actually filed, and theplaint has been returned for the rectification of certain defects. Thelearned Counsel for the petitioner would submit that he has alreadyobtained the certified copy of the decree in O.S.No.61/2004. Under thecircumstances, this Court is of the considered opinion that the petitionercan be permitted to re-present the plaint along with the certified copy ofthe decree in that suit within a period of four weeks herefrom. On doingso, the lower Court is directed to take the suit on file, if it is inorder otherwise, and proceed with the matter in accordance with law. 13.Accordingly, this civil revision petition is disposed of. Nocosts. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The District Munsif Tiruppur2. The Record Keeper, V.R.Section High court Madras.+ 2 cc to Mr.Menon&Goklaney Advocate SR.NO.49114+ 1 cc to Mr.Muthappan Advocate SR.NO.49076JRG(CO)RD 16.8.07CRP NPD No.463 of 2004