High Court · 2025

A.S.No.1114 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.03.2025CORAMTHE HON'BLE MR.JUSTICE N.SATHISH KUMARA.S.No.1114 of 2024andC.M.P.No.28506 of 20241.Venkatesan2.Mrs.Krishnaveni... Appellants/Respondents/Plaintiffs -vs-Mrs.V.Amudha... Respondent/Petitioner/DefendantPrayer: Appeal Suit is filed under Section 96 of CPC to partially set aside the fair and decreetal order dated 22.07.2024 passed in I.A.No.1 of 2023 in O.S.No.162 of 2017 on the file of Principal District Judge at Chengalpattu.For Appellants: Mr.V.Raghavachari Senior Counsel For Mr.D.IrusappanFor Respondent: Mr.C.Prabhakaran*****J U D G M E N T1/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024A challenge has been made to the order of the Trial Court, rejecting the suit that was filed to declare the plaintiffs' title to the suit property and for consequential relief of permanent injunction and also to declare the decree and judgment in O.S.No.493 of 2008 dated 02.03.2010 as null and void.2. The parties are arrayed as per their own ranking before the Trial Court.3. The plaint has been filed claiming that the property was originally owned by one Govindarajan and Kuppusamy and after their death, it devolved upon their respective legal heirs. Some of the legal heirs had executed a General Power of Attorney in favour of one Kumarasamy Naicker in respect of the property and later, the said Power of Attorney has been cancelled on 31.05.1987. Thereafter, they released the property in favour of the plaintiffs. After cancellation of the Power of Attorney, the plaintiffs executed a sale deed directing in favour of one Soundari on 21.05.1992.4. It is the case of the plaintiffs that after cancellation of the 2/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024Power of Attorney and after execution of the sale deed in favour of Soundari, the Power Agent, based on the Power of Attorney dated 24.09.1986, had executed a sale deed on 22.01.1993 in favour of one Arumugam and the defendant claimed title through the said Arumugam. When the matter stood thus, the defendant filed a suit in O.S.No.493 of 2008 on the file of the Principal District Judge, Chengalpattu and obtained an exparte decree. Immediately, the plaintiffs filed an application in I.A.No.214 of 2012 for condoning the delay of 750 days in filing the set aside petition and the same was allowed, against which, the defendant filed C.R.P.(NPD) No.2890 of 2013. The said Revision Petition was allowed and the order passed in I.A.No.214 of 2012 was set aside. Aggrieved by the dismissal of Revision Petition, the plaintiffs filed SLP (CC) No.19758 of 2016 before the Supreme Court and the Apex Court also dismissed the appeal.5. Now, the suit has been filed for declaration on the ground that the earlier decree has been obtained by playing fraud, besides seeking declaration of title of the property. At that stage, an application has been 3/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024taken out by the defendant to reject the plaint on the ground that there was no cause of action to maintain the suit. Since the application to condone the delay of 750 days has been dismissed, an Execution Petition has already been filed, in which delivery has been ordered and sought to reject the plaint under Order VII Rule 11 of CPC.6. The Trial Court, based on the above pleadings and taking note of the earlier proceedings, rejected the plaint in toto, against which the present appeal has been filed. 7. The main contention of the learned Senior Counsel for the appellants is that the plaint cannot be rejected mainly on the strength of the earlier application filed to condone the delay that was dismissed. Whereas the suit was filed seeking declaration on the ground that the earlier decree was obtained by playing fraud in the Court and on the parties and the Trial Court ought to have dealt with the issue independently, instead of rejecting the plaint on the basis of earlier exparte decree.8. Per contra, Mr.C.Prabhakaran, learned counsel for the 4/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024respondent would contend that the earlier exparte decree was passed as early as on 02.03.2010 and thereafter, an application to condone the delay in filing the set aside petition was dismissed, which also reached finality upto Supreme Court and in the execution petition, delivery has also been ordered. According to the learned counsel for the respondent, there was no cause of action once again to file a suit in respect of the same property and the suit is nothing, but a clear abuse of process of law. Therefore, it was prayed that the order of the Trial Court does not warrant any interference by this Court.9. In the light of the above, the point for consideration in this appeal is as to whether the suit can be dismissed merely on the ground that the earlier application filed to condone the delay has been dismissed?POINT:10. The plaint proceeded on the basis that the Power Agent, despite cancellation of the Power of Attorney in the year 1987, sold the property in the year 1993, that too, after the original owners sold the property in favour of one Soundari on 21.05.1992. The very allegation in the plaint is that the exparte decree was obtained by playing fraud on them 5/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024and on that ground, the plaintiffs sought for declaration and injunction. It is relevant to note that on the earlier occasion, the purchaser of the property, who had purchased the property from the Power Agent of the plaintiffs after cancellation of the Power of Attorney, filed a suit in O.S.No.493 of 2008 and the said suit was decreed exparte. Thereafter, the plaintiffs filed an application to condone the delay of 750 days in filing the set aside petition. Though the said application was originally allowed by the Trial Court, this Court, in the Civil Revision Petition in C.R.P.(NPD) No.2890 of 2013 allowed the petition. The SLP filed against the order passed in the Revision Petition was also dismissed and these facts are not disputed by the parties. 11. The present suit has been filed to declare the plaintiff's title to the suit property and also to declare the exparte decree obtained in the earlier suit as null and void on the ground of fraud. Whether or not the fraud played on the Court or party has to be seen based on the materials and evidence produced at the time of trial. Similarly, whether or not the cause of action in the suit has to be looked into only from the reading of the entire pleadings in the plaint. Therefore, this Court is of the view that merely on 6/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024the basis of dismissal of the application filed to condone the delay to file a petition to set aside the exparte decree, it cannot be said that the decree cannot be challenged in any proceedings. Moreover, the plaintiffs pleaded that there was a fraud played in obtaining the exparte decree. Besides, the defendant has no title to the property. When a plea of fraud is raised, the Trial Court ought to have decided the issue only after a full fledged trial and on the basis of the evidence adduced therein. The rejection of plaint by the Trial Court at the threshold on the ground of dismissal of the earlier application filed to condone the delay in filing the petition to set aside the exparte decree, in the opinion of this Court is not proper. As the plea of fraud has been raised, that has to be decided in the manner known to law in the Trial. Accordingly, the point is answered.12. In the result, the instant Appeal Suit is allowed. The fair and decreetal order dated 22.07.2024 passed by the Principal District Judge, Chengalpattu in I.A.No.1 of 2023 in O.S.No.162 of 2017 is set aside. The Trial Court is directed to expedite the trial and dispose of the suit within a N.SATHISH KUMAR,J.,ar7/8 https://www.mhc.tn.gov.in/judis A.S.No.1114 of 2024period of six months from the date of receipt of a copy of this judgment. No costs. Consequently, connected Miscellaneous Petition is closed.26.03.2025Index: Yes / NoInternet: Yes / NoarTo:1.The Principal District Judge,Chengalpattu.2.The Section Officer,V.R.Section,High Court, Madras.A.S.No.1114 of 20248/8