BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:05/12/2008 CORAM THE HONOURABLE MR. JUSTICE S.PALANIVELU C.R.P(PD)(MD)NO.956 of 2008 and M.P(MD)No.1 of 2008 1. S.N.Kasilingam 2. K.Muthulakshmi 3. K.Shanmugavelu ...Petitioners/defendants vs 1. S.N.M.Ramachandran 2. R.Gandhimathi ...Respondents/plaintiffs PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India, praying to call for the records relating to the order and decreetal order made in I.A.No.381 of 2007 in O.S.No.59 of 2007, dated 20.03.2008, on the file of the learned Subordinate Judge, Devakkottai and to set aside the same. !For Petitioner ...Mr.VR.Shanmuganathan ^For Respondent ...Mr.M.S.Velusamy :ORDER
The petitioners are the defendants in O.S.No.59 of 2007, on the file of
the Sub-Court, Devakkottai. It is a suit filed by the respondents herein,
seeking for the relief of rendition of accounts in a shop under the name and
style of “Revathi Pathirakadai” and also for a direction to grant the shares in
favour of the plaintiffs.
2. The second petitioner has already filed another case on the file of the
same court in O.S.No.26 of 2007, for the relief of dissolution of a partnership
firm known as “Rajan Vadakai Pathirakadai Niruvanam” which was formed on
02.02.1990, to direct the share of 25% in favour of the plaintiffs and also for
rendition of the accounts.
3. The first pettioner herein was not a party in O.S.No.26 of 2007. In
O.S.No.59 of 2007, it is stated that the first plaintiff and the first defendant
are brothers, second plaintiff is wife of the first plaintiff, second defendant is
the wife of first defendant and third defendant is first defendant’s son. It is
alleged in O.S.No.59 of 2007 that the joint family contained all the members of
the family engaged in the business and in 1990 the parties to the suit resolved
to constitute the vessels rental business in Devakkottai and they also fixed
certain amount payable by each of the parties. However, the first plaintiff was
working in the shop. It is further stated that originally the firm was started
in the name and style of “Rajan Vadakai Pathira Nilayam” and the income derived
from the said business was utilized to launch identical business in various
places like Thiruvadanai, Kalayarkoil and Karaikudi and likewise in Devakkottai,
under the name “Kasiram Revathi”. The Revathi Vessels Rental shop was started
in the year 2001, out of the income obtained from Rajan Vessels Rental Shop and
that the things in the Revathi Vessels Rental Shop constitute the vessels taken
from the Rajan Vessels Rental Shop.
4. As far as the learned counsel for the petitioners is concerned,
O.S.No.27 of 2007 is a comprehensive suit which would include all the affairs of
the partnership firms in which the parties to the suit are the partners and
there is no necessity to file a subsequent suit for an identical relief which is
against the provisions of Order 7 Rule 11 of Civil Procedure Code and that the
subsequent suit has to be rejected. His contention is two-folded. One is, the
plaintiffs in O.S.No.57 of 2007 have raised inconsistent pleas, which the
plaintiffs are not entitled to raise in the suit and another one is, the absence
of cause of action in O.S.No.59 of 2007. It is his contention that having
alleged in one place in O.S.No.59 of 2007 that Revathi Partnership firm is a
sister concern and pleading in another place in the same plaint that it is a
separate partnership firm is mutually destructive plea and hence the plaintiffs
are not entitled to raise them and on that ground, the planit has to suffer
rejection.
5. His next contention is with reference to the
absence of cause of action. He says that already the affairs of the absence of
rights and liabilities of the partners in the firm Rajan Vessels Rental Shop are
all pleaded by both the parties in their respective pleadings in the plaint and
written statement in O.S.No.26 of 2007 and having exhausted all the defenses in
the written statement filed in O.S.No.26 of 2007, the defendants in O.S.No.26 of
2007 have filed their plaint in O.S.No.59 of 2007 with the same allegations as
contained in the written statement in the earlier suit and a careful reading of
the plaint would not disclose any cause of action.
6. In support of his contention, the learned counsel for the petitioners
relies upon a decision of the Supreme Court in I.T.C.Limited .vs. Debts Recovery
Appellate Tribunal and others reported in (1998) 2 Supreme Court Cases 70,
wherein their Lordships have observed that:
“…while the court scrutinize the plaint, it has to ascertain whether the
plaint created an illusion of cause of action by clever drafting and the role
played by the pleading with reference to cause of action is the major element in
a suit to be considered under Order 7 Rule 11 of C.P.C.”
7. The learned counsel for the petitioners Mr.VR.Shanmuganathan also draws
attention of this court to a decision of this Court in Nesammal and another
.vs. Edward and another reported in 1998(III) CTC 165, wherein, the learned
Judge has expressed his opinion as,
“grounds for rejection of the Plaint stated in this affidavit are
illustrative and not exhaustive-Provisions of Order 7 Rule 11 are not exhaustive
and Court has got inherent powers to see that vexatious litigations are not
allowed to consume the time of the court – Court can reject plaint for
allegations in plaint reveals abuse of process of law”.
With this authority, the learned counsel also submits that as per the above said
decision, this Court widened the scope of the order 7 Rule 11 of Civil Procedure
Code and any aspect incidental to the ingredients found under Order 7 Rule 11
of Civil Procedure Code would be considered by the Court and it can be
ascertained whether the plaint deserves for rejection. He also garners support
from another decision in A.Sreedevi .vs. Vicharapu Ramakrishna Gowd reported in
(2006) 1 MLJ 116 in which this Court has held that:
“…if on a meaningful, not formal reading of plaint or petition, it is
manifestly vexatious and meritless, in the sense of not disclosing a clear right
to sue, the trial court should exercise its power under Order 7 Rule 11 of
C.P.C.”.
8. It is the following observations and conclusions of this Court which
read as follows:
” It is the duty of the trial Court to read the plaint, not formally, but
on meaningful way and on such reading if it is manifestly vexatious and
meritless in the sense of not disclosing a fair right to sue, it should exercise
its power exercisable under order 7 Rule 11 C.P.C taking care to see that the
grounds mentioned therein are fulfilled and if clear drafting has created the
illusion of cause of action, nip it in the bud. The Penal Code is also
resourceful enough to meet such men, and must be triggered against them.”
9. The learned counsel for the respondent Mr.M.S.Velusamy opened his
argument by referring to Order 7 Rule 11 of Civil Procedure Code and contended
that if the court finds that any of the contentions raised by the petitioners
does not come under the four ingredients contained in the said rule, it is out
of the scope of the rule and it cannot be considered for a moment. It is
profitable to extract Order 7 Rule 11 of Civil Procedure
Code for better understanding of the subject:
11. Rejection of plaint:– The plaint shall be rejected in the following
cases:–
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed by the
Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required bythe
Court to supply the requisite stamp paper within a time to befixed by the Court,
fails to do so;
(d) where the suit appears from the statement in the plaint to be barred
by any law;
((e) where it is not filed in duplicate;)
((f) where the plaintiff fails to comply withthe provisions of rule 9.)
(Provided that the time fixed by the Court for the correction ofthe
valuation or supplying of the requisite stamp-papers shall not be extended
unless the Court, for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature from correcting the
valuation or supplying the requisite stamp-papers, as the case may be, within
the time fixed by the Court and that refusal to extend such time would cause
grave injustice to the plaintff.)
HIGH COURT AMENDMENT (MADRAS); For clause(c) substitute the following:
(c) where the relief claimed is properly valued, but the plaint is
written on paper insufficiently stamped, and the plaintiff does not make good
the deficiency within the time, if any, granted by the Court.”
10. As per this provision, if the plaint does not disclose the cause of
action or if the relief is under-valued or if the plaintiffs failed to perform
the function as directed by the Court with reference to the supply of deficit
stamp or if it is barred by law, then only the Court can exercise its powers to
venture to reject the plaint and in the absence of the above said factors, the
Court is left with no other option, except to dismiss the application filed by
the defendants for
rejection of the plaint.
11. The other side contends that inconsistent pleas are available in the
plaint and it may constitute a good ground for them to agitate the same at the
time of trial and it will not form basis for the court to reject the plaint. In
his view, in the present suit O.S.No.59 of 2007, the necessary causes of action
have been incorporated and the very reading of the plaint would show the same.
It transpires that on filing of suit in O.S.No.26 of 2007, the court below
appointed an Advocate Commissioner to take inventory in Rajan Vessels Rental
Shop, he inspected and took inventory of the account books and the vessels as
well, found therein and he filed the Inventory Report before the Court.
12. The learned counsel for the respondents would show that the very
filing of the Inventry Report has become the cause of action for his filing the
subsequent suit in O.S.No.59 of 2007 which is evident from the list of documents
annexed to O.S.No.59 of 2007, which shows that a copy of the inventory was also
produced along with the plaint. This Court sees considerable force in his
arguments. Even though, there is no specific mention about the appointment of
a Commission in the earlier suit and he has taken inventory as pleaded in the
plaint as well the annexure of the copy of the Commissioner’s Inventory Report
would make it clear that it also forms part of cause of action.
13. In general, a conscious reading of the pleading in O.S.No.59 of 2007
would candidly show that relevant particulars are there which duly constitute
the cause of action for filing of the suit. If the suit is weak enough or if
the plaintiff is taking any inconsistent pleas, it is for the defendants, these
petitioners to agitate the same before the trial court at the time of the final
hearing of the case.
14. The learned counsel for the respondent in support of his contention
has placed reliance upon a decision of this Court in Metson Education and
Development Association(P) Limited, represented by its President .vs. The Church
of South India Trust Association, through its Power of Attorneys, The
Rt.Rev.Dr.V.Devasagayam, 226, Cathedral Road, Chennai-86 and another reported
in 2008(1) CTC 521, wherein the learned Judge has observed that:
“…non-filing of document on which cause of action rests and missing of
Court records are only detrimental to plaintiff’s case and will only benefit
Defendant and do not warrant rejection of the Plaint”.
15. He also gained support from another decision of this Court in J. Lili
Jabakani and others .vs. T.A.Chandrasekhar reported in 2006(5) CTC 848 in which
the learned Judge after referring to a catalogue of decisions on this subject
pronounced by the Supreme Court, reached a conclusion that a cause of action
means bundle of facts averred in plaint that disclose right to sue and if
plaint does not disclose vital and valid cause of action, plaint can be rejected
under Order 7 Rule 11 of Civil Procedure Code and that disputed questions of
fact cannot be taken as ground for rejection of plaint and that difference
exists between pleas that there exists no cause of action and that plaint does
not disclose cause of action–Issue to be determined at stage of consideration
of Application for rejection of Plaint is whether plaintiff has cause of action
to file a suit and this should be done by looking into averments contained in
Plaint.
16. In Prema Lala Nahata and Another .vs. Chandi Prasad Sikaria reported
in (2007)2 MLJ 1177(SC), the Honourable Apex Court has laid down the law as
follows:
” On the Scheme of the Code, there is no such prohibition or a prevention
at the entry of a suit defective for misjoinder of parties or of causes of
action. The Court is still competent to try and decide the suit, though the
Court may also be competent to tell the plaintiffs either to elect to proceed at
the instance of one of the plaintiffs or to proceed with one of the causes of
action. On the Scheme of the Code of Civil Procedure, it cannot therefore be
held that a suit barred for misjoinder of parties or of causes of action is
barred by law, here the code.”
17. Following illuminating judicial pronouncements of the Honourable
Supreme Court of India as well as the decisions rendered by this Court, this
Court is of the considered view that on the basis of a study of the materials
available before this Court that the order passed by the Court below does not
suffer from any infirmity. If the petitioners are aggrieved by the filing of
the subsequent suit by the plaintiffs, they can very well agitate the same
before the Court below and on the grounds set out in the petition filed under
Order 7 Rule 11 of Civil Procedure Code, the plaint cannot be rejected and this
Court does not countenance the claim of these petitions and the Civil Revision
Petition deserves to be dismissed.
18. In fine, the Civil Revision Petition is
dismissed. It is made clear that the court below will not get influenced by any
of the observations made by this Court in this order. Consequently, connected
Miscellaneous Petition is also dismissed. No costs.
vsn
To
The Subordinate Judge,
Devakkottai.