M. Sundaram Alias Vettukati Sundaram v. R. Thangasamy Nadar

1. Petitioner is the defendant in O.S.No. 191 of 1997 on the file of the Principal District, Munsif, Kuzhithurai. The respondent herein filed the above suit for injunction restraining the petitioner and others from interfering with his possession.

2. According to the respondent/plaintiff he was in possession of the property from 1966 onwards and his possession is not liable to be disturbed by any one including the petitioner. He also filed for an appointment of a Commissioner verified and report about the physical features of the suit property and the building situated therein, and to specifically note the details of the compound wall with the gate surrounding the suit property etc. In the plaint it is stated that there was earlier a suit in between the respondent and his elder brother Arumuga Nadar and his wife Ponnachi in O.S.No. 640 of 1974. The suit was decreed declaring that Arumuga Nadar and his wife are entitled to 3/4th share in the property and the same is allowed to be divided and partitioned. A preliminary decree and a final decree were passed. An Execution Application was also filed and the property was also taken delivery through court. It is submitted in the plaint itself that the very same respondent filed O.S.No. 589 of 1978 for setting aside the decree in O.S.No. 640 of 1974 and the same was dismissed. An appeal was taken in A.S.No. 3 of 1978 which also met the same fate and the Second Appeal No. 1003 of 1988 is also admittedly dismissed.

3. Thereafter, the respondent also filed another suit in O.S.No. 82 of 1993 making the present petitioner as a party. It is at this juncture, Arumuga Nadar and his wife who were not able to take possession as per the decree in O.S.No. 640 of 1974 executing a sale deed in favour of one Sathiya George on 15.5.1980 and the present petitioner is claiming under Sathiya George who is also now dead.

4. O.S.No. 82 of 1993 was also filed by the very same respondent for declaration of the very same title of the property and for consequent injunction restraining the defendant from interfering with the possession. That suit was also dismissed. Of-course, there is an observation in that case that the sale deed in favour of Sathiya George was against the provisions of Registration Act. It was also held in that case that the sale deed ought to have been registered within the area of jurisdiction of the Sub-Registrar where the property is situated. But, since it is registered within the jurisdiction of another Sub-Registrar, it violates the principles of law and therefore invalid.

5. It was also found in that case that the respondent herein has no title or possession and his rights are already adjudicated in earlier litigation. It is also to be taken note that O.S.No. 589 of 1978 was filed for setting aside the decree in O.S. No. 640 of 1974 and for recovery of possession. Therefore, he is also not entitled to get injunction as prayed for. It is after dismissal of O.S.No. 82 of 1993, the present suit is filed.

6. The main reason for filing this revision is that present suit is an abuse of process of court. The respondent has himself filed the earlier litigation and has failed. He cannot collaterally attack the judgment and again repeatedly file suits after suits and thus harass the parties.

7. It is also contended that there is a boundary separating the property which was put up by him after Intervention of court in criminal revisions. It is said that he has put up boundary and the same was demolished and a police complaint was filed which was not taken note of by the authorities and therefore, the petitioner has come to this Court and it is in pursuance to the orders of this Court the boundary was put up with the police aid. When the respondent himself has filed a suit for recovery of possession after setting aside the earlier decree and having failed in his attempt he cannot file the suit as if he is in possession and that too from the year 1966, onwards.

8. Learned Counsel argued that it is a fit case where this Court should strike out the plaint invoking Section 151 read with Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure.

9. At the time of admission, I ordered notice of motion and granted stay.

10. In a recent decision of the Hon'ble Supreme Court in I.T.C. Limited v. Debts Recovery Appellate Tribunal . Their Lordships considered the scope of Order 7, Rule 11 of the Code of Civil Procedure. An argument was taken that it is not permissible to the court to refer to any other materials for the purpose of trying whether there is any cause of action against the parties. It was contended before the Hon'ble Supreme Court that the allegation disclosing the course of action must be taken as true. This contention was not accepted by the Hon'ble Supreme Court. The relevant portions in paras 12 and 13 read thus:

12. The first point here is whether the power to reject the plaint under Order 7, Rule 11, C.P.C. can be exercised even after the framing of issues, and when the matter is posted for evidence. This point has arisen because the Division Bench of the High Court has referred to this aspect while dismissing the appeal.

13. We may state that in the context of Order 7, Rule 11, C.P.C., a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi 1986 S.C.C. (Supp.) 15 at 24 as follows (S.C.C.) para. 12):

In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial...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 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....

The above said judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath 1987 S.C.C. (Supp.) 663. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7, Rule 11, C.P.C.

Thereafter, Their Lordships considered the question whether the cause of action as set out in the plaint alone shall be looked into. It was further held in para 16 of the Judgment thus:

The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7, Rule 11, C.P.C. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint.

14. In this connection, it may also be noted that Order 7, Rule 16 of the Code of Civil Procedure was amended under the act 104 of 1976 where the power is given to court at any stage of the suit to strike of the plaint, "which is otherwise an abuse of process of law". Apart from the same, under inherent powers, under Section 151 of the Code of Civil Procedure, the court is given the poser to strike of the plaint if it comes to the conclusion that there is an abuse of process of law.

15. What is an abuse of process? In a decision in Hunter v. Chief Constable of West Midlands and Anr. 1981 All E.R. 727, it was held thus:

The initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision adverse to the intending plaintiff reached by a court of competent jurisdiction in previous proceedings in which the plaintiff had a full opportunity of contesting the matter was, as a matter of public policy, an abuse of the process of the court.

It is further held by the House of Lordships in that case thus:

My Lords, collateral attack on a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A.L. Smith, L.J. in Stephenson v. Garnett (1898) 1 Q.B. 677 and the speech of Lord Halsbury LC in Reichel v. Magrath (1889) 14 App. Cas. 665 which are cited by Goff L.J., in his judgment in the instant case. I need only repeat an extract from the passage which he cited from the judgment of A.L. Smith, L.J., in Stephenson v. Garnett (1898) 1 Q.B. 677 at 680-681:

...the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court.

The passage from Lord Halsbury LC's speech in Reichel v. Magrath 14 A.C. 665 at 688 deserves repetition here in full:

...I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.

16. As found by the Hon'ble Supreme Court, from a clear drafting alone the court is not debarred from looking into the real contention. The cause of action in the suit is at para 16 of the suit which reeds thus:

The cause of action for this suit arose within the jurisdiction of this Honourable Court when the plaintiff has entered into possession of the plaint schedule property immediately after purchasing the right of equity of redemption by a deed dated 12.10.1960 and after obtaining release deed from the mortgagees dated 25.4.1966 and subsequently when the plaintiff has been in continuous possession and subsequently on 30.1.1997 when the defendant got the sale in his favour and further attempting to take forcible possession:

17. In the entire narration of the facts as stated in the plaint in various paragraphs it is seen that the plaintiff had been in possession from the year 1966. It is also stated in the plaint that his brother has filed a suit O.S.No. 640 of 1974 for partition and recovery of possession, that is after he purchased the property, and obtained the release from mortgages. A preliminary decree was granted in favour of his brother and his wife and he also filed Execution Application for recovery of possession. Even though he says that the delivery has been recorded, it is only a paper delivery.

18. It is also admitted in the plaint itself that he also filed O.S.No. 589 of 1978 for setting aside the very same decree obtained by his brother which was dismissed. The same was confirmed in the appeal and in the second appeal. The suit was one for declaration of his title for setting aside the decree and for recovery of possession. That means he is not in possession and the delivery was effected in O.S.No. 640 of 1974. The decree holder therein also obtained physical possession in execution. It is also admitted in the plaint itself that O.S.No. 82 of 1993 was filed for declaration of title and for prohibitory injunction to restrain the petitioner herein from interfering with his possession. The suit filed by him was also dismissed. He has not preferred any appeal against the judgment in O.S.No. 82 of 1993. The suit was one for permanent prohibitory injunction also claiming possession from 1966 onwards. It is also dismissed as stated in the plaint itself. The question in such cases is whether the plaintiff/respondent be permitted to re-agitate the. matter which is already concluded.

19. Learned Counsel for the respondent submitted that O.S.No. 589 of 1978 was dismissed and in the second appeal interim orders were obtained from this Court and this Court passed orders in his favour and he continues in possession. It is further stated that even if the sale deed in invalid, if he continues in possession, he can prescribe title by adverse possession. He also brought to my notice the order in C.M.P.No. 951 of 1991 in S.A.No. 1003 of 1988. In the second appeal filed by the respondent herein an application was filed for injunction by the petitioner predecessor. The injunction application was dismissed on the ground that in the suit filed by the plaintiff, the defendant cannot get an injunction.

20. The court did not pass any orders on merits nor it found that the respondent is in possession. In fact, the suit in O.S.No. 589 of 1978 is for setting aside the decree and for recovery of possession. That relief was denied to the respondent. It follows that he was not in possession and the order in C.M.P.No. 951 of 1991 has nothing to do with this case, nor will it advance the argument of the respondent in any way.

21. Learned Counsel for the respondent further submitted that in the judgment in O.S.No. 82 of 1993 there is a finding that the sale in favour of Sathiya George is invalid since it violates the provisions of Registration Act. I do not think that the said finding will also help the respondent.

22. It is not disputed by the respondent that O.S.No. 82 of 1993 was dismissed wherein it was found that the respondent has no title or possession over the property. In such cases, whether the defendant has title to the property or whether the sale deed is valid or not is irrelevant passing an observation regarding the sale deed in favour of the petitioner's predecessor also cannot be made use of by the respondent to his advantage.

23. Learned Counsel for the respondent submitted that the orders in the criminal proceedings does not disclose that it was with the help of the police, boundary was put up by the petitioner. Initially, the same was denied. The matter came to this Court and this Court allowed the application of the petitioner and a boundary was also put up. That also strengthens the case of the petitioner that he is in possession, of the property and by virtue of court delivery in earlier proceeding, physical possession was also passed to the decree holder therein.

24. Having failed in all these attempts, can he be permitted again to reagitate the very same issue in another proceeding. In the counter affidavit itself, it is stated in para 22, that the following issues arises for consideration in this case:

(1) Whether the sale deed dated 30.1.1997 is valid and binding on me the respondent?

(2) Whether I have perfected my (respondent) title by adverse possession; and (3) Whether the petitioner (petitioner herein) has any right or interest in the Property

25. If these are the points to be considered I feel that all these are concluded by the earlier decisions. In fact, the validity of the sale deed dated 30.1.1997 does not arise for consideration since the suit is only for injunction claiming possession. Regarding adverse possession, the admission of the plaint itself is sufficient to hold otherwise. On a reading of the plaint, I feel that the respondent has come to this Court only to re-agitate the matter which has already been concluded and which is admitted in the plaint. I find that this is a fit case wherein the powers under Section 151, Order 6, Rule 16; Order 7 Rule 11 of the Code of Civil Procedure read with Article 227 of the Constitution of India will have to be invoked. Since the respondent has abused the process of court, the plaint in O.S.No. 191 of 1997 is to be striked off the file and consequently, all the interim applications filed by him in the case is also to be rejected, and I direct the lower court to do so.

26. In the result, I allow the revision with costs. Advocate fee Rs. 3,000. Consequently, the connected C.M.P. is closed.