1. The petitioners put in issue the order of the Trial Court non-suiting the petitioners for the relief sought for in I.A No. 18151 of 2004 which was filed with a prayer to reject the plaint in O.S No. 2345/2003 on the file of XVI Assistant Judge, City Civil Court, Chennai.

2. The respondent herein filed the Suit for a declaration that the sale deeds executed by him are non-est and unenforceable and were obtained by the playing fraud by the petitioners and also for permanent injunction restraining the petitioners from alienating the suit property till the disposal of the Suit.

3. The respondent has entered into an agreement with the first defendant Shanmugam during January 2000 for development of the property, the sale price of which was fixed at Rs. 22,00,000 and the first defendant paid an advance of Rs. 3,00,000. According to the respondent, he executed a power of attorney in favour of the said Shanmugam so as to enable him to promote the land by constructing flats for sale. The respondent handed over possession of the property. Though the said Shanmugam obtained permission for putting up multi-storeyed building of residential apartments, he was not able to stick on to his payment schedule which is as per the agreement within six months from the date of signing the agreement. When the respondent informed the first defendant that he would cancel the power of attorney, the first defendant assured him that the revision petitioners are intending purchasers and if sale deeds are executed in favour of them in respect of the undivided share, the first defendant would be in a position to pay the amount of the revision petitioners. While that being so, the petitioners who were intending purchasers of the apartments in the building, approached the respondent and assured that if the sale deeds are executed in their favour, they would pay the amount directly to the respondent and on that basis, the respondent executed sale deeds for 93 percentage of the undivided share, but the petitioners did not pay the amount as assured. On the date of filing of the Suit, a sum of Rs. 10,13,000 was due. In addition to this, the said Shanmugam, the first defendant encumbered the balance undivided share of 7% on the land by executing an agreement with one R. Lakshmanan, who is the 8th defendant in that Suit. The promoter, the defendant Shanmugam and the petitioners herein colluded with each other and defrauded the respondent and are in possession of the property without payment of any consideration. On the above said grounds, the respondent filed a Suit for declaration that the sale agreements executed on the 29th June 2000 in favour of Shanmugam stands terminated due to non-performance and also a further declaration that the sale deeds executed by the respondent in favour of the petitioners on various dates are void ab initio, non-est and unenforceable and obtained by playing fraud. In the said Suit, the petitioners are defendants 2 to 7. They filed an Application in I.A No. 18151 of 2004 under Order 7, Rule 11 of the Code of Civil Procedure to reject the plaint, since the same does not disclose a valid cause of action. The Trial Court, upon hearing the arguments of the learned counsel on either side and based on the materials available before it, rejected the Interlocutory Application. Hence, this Revision.

4. Learned counsel for the petitioners very vehemently contended that the Trial Court has committed grave error in not allowing the Application filed under Order 7, Rule 11 of the Civil Procedure Code, as the plaint did not disclose any cause of action, much less a valid cause of action. He further submitted that the valuation of the Suit and the Court fee paid thereon are not in accordance with law and on that ground, the plaint has to be rejected. The other ground contended by the petitioner is that if the value of the sale deeds executed by the respondents are taken together, the Trial Court would not have jurisdiction and on that ground the plaint ought to have been rejected. The respondent having executed the sale deeds in favour of the respective petitioners for considerations stated herein, ought to have framed the Suit for setting aside the sale deeds and on the contrary moulted the prayer praying for a declaration that the sale deeds are non-est in law and vitiated by fraud, whereas the learned counsel for the respondent argued for sustaining the order.

5. Heard the learned counsel on either side and perused the materials available on record.

6. Admittedly, the petitioners put in issue the order of the Trial Court rejecting the Application filed by the petitioners under Order 7, Rule 11 of the Code of Civil Procedure for rejection of plaint on the above said grounds.

7. Rule 11 of the Order 7 of the Code of Civil Procedure provided that a plaint could be rejected—

(1) if the plaint did not disclose a cause of action;

(2) where the relief claimed was undervalued and the plaintiff, on being required by the Court to correct the valuation within the time to be fixed by the Court, failed to do so;

(3) where the relief claimed was properly valued, but the plaint was written upon a paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court failed to do so;

(4) where the Suit appeared from the statement in the plaint to be barred by any law;

(5) where the plaint was not filed in duplicate; and where the plaintiff failed to comply with the provisions of Rule 9.

The Proviso appended to the above provision provided for extension of time for complying with the corrections pointed out by the Court, on reason being recorded.

8. It could be seen from the plaint averments that the agreement holder Shanmugam being not able to perform his part of the contract and the petitioners being the intending purchasers of the property, offered to pay the balance sale consideration directly to the respondent on the respondent executing sale deeds in their favour in respect of their respective undivided shares, and believing the same, the respondent executed sale deeds. But neither the first defendant has complied with the terms of the agreement nor the petitioners paid the amount as assured by them to the respondent/plaintiff. On the above averments, the Suit has been filed to declare that the agreement executed with the first defendant Shanmugam stands terminated as the terms of the agreement has not been complied with by the said Shanmugam and the sale deeds executed, which are an outcome of fraud played by the petitioners herein, in the sense, not for consideration to be non- est, unenforceable and void ab initio. On the above said facts, the first contention of the petitioners that the plaint did not disclose cause of action cannot be accepted and has to be rejected. The bundle of facts averred in the plaint disclose vital and valid cause of action in the plaint for the relief sought for. The other ingredients of Rule 11 of Order 7 are not available in this case for rejection of plaint.

9. The other contentions raised on behalf of the petitioners are that the Court fee paid is not in accordance with law and if the Suit is valued as per the sale consideration shown in the documents, the Court has no jurisdiction, are also raised only for rejection, for the reason that in the plaint averments, the sale deeds itself are disputed as an outcome of the fraud played by the petitioners herein, in the sense, no consideration has been passed, as stated in the sale deeds, because of the collusion of the petitioner and the first defendant-Shanmugam. The same, being a disputed question of fact, cannot be taken as a point for rejection of the plaint at the threshold.

10. The other contention that the respondent having executed the sale deeds in favour of the respective petitioners for considerations stated therein ought to have prayed for setting aside the sale deeds also cannot be countenanced, as the very factum of payment of consideration is disputed in the plaint.

11. The observation of the Trial Court that the Suit has been listed for trial and P.W.1 has been examined in the impugned order has been taken as a ground by the petitioners and contended that the Suit can be rejected at any stage by placing reliance on the judgment of the Supreme Court in the case of Saleem Bhai v. State of Maharashtra, 2003 (1) SCC 557. There cannot be any second opinion about the ratio decidendi. At the same time, the observation of the Trial Court that the Suit has reached the stage of trial in this case cannot be regarded as a finding to non-suit the petitioners for the relief, neither the order impugned is solely rested on that ground. The reading of the Trial Court judgment would make it manifestly clear that the filing of the Application at the belated stage after examination of P.W.1, the Trial Court only expressed its apprehension that the Application could have been filed to protract the proceedings and nothing more than that the Trial Court has relied upon the stage of the Suit.

12. In the same judgment of Saleem Bhai, referred to supra, the Supreme Court has held that for the purpose of deciding the Application filed under Rule 11 of Order 7 of the Code of Civil Procedure, the averments in the plaint are germane and the plea taken by the defendant in the written statement would be wholly irrelevant at that stage. The said decision was rendered, as in that case, the Application filed under Order 7, Rule 11 of the Code of Civil Procedure has not been disposed off on the ground that the written statement has not been filed and directed the defendant in the Suit to file his written statement. That order was confirmed by the High Court and while deciding an Appeal against that orders, the Supreme Court observed that the Application can be filed at any stage of the Suit and non-filing of the written statement would not preclude the Trial Court from considering the Application under Order 7, Rule 11 of the Code of Civil Procedure, particularly, in that case, the Application has been filed under sub-clauses (a) and (d) of Rule 11 of Order 7, C.P.C That is not the facts of the present case.

13. The other decision relied on is the case of Kamaleshwar Kishore Singh v. Paras Nath Singh, 2001 (4) CTC 764. That was a case which arose out of the Suit for partition. The Suit was valued at Rs. 16.00 lakhs for the purpose of jurisdiction and being a simple Suit for partition the Court fee was fixed at Rs. 29.25 and that was affixed on the plaint. The 20th defendant in the Suit moved an Application submitting that the property exclusively belonging to her being her self-acquired property as evidenced by the document filed by her and the written statement have been included in the Suit for partition. So, either the 20th defendant be deleted from the array of parties or in the alternative, the plaintiff be directed to pay ad valorem Court fee on the market value of the properties standing in the name of this defendant amounting to Rs. 30,50,000. The Trial Court allowed the Objection Petition filed by the 20th defendant and directed the plaintiff therein to first pay ad valorem Court fee over the properties standing in the name of the 20th defendant which were included in the suit property on the value of 10% above, as given in the sale deeds of these properties, the photocopy of which has been filed on behalf of the 20th defendant put up on 9.1.1997 Thereupon the order was modified and the ad valorem Court fee over the value of Rs. 29,39,760 was directed to be paid on or before 5.10.1997 The correctness of the said order was carried on to the High Court and to the Supreme Court. In the circumstances of the case, the Supreme Court has rendered a finding of arbitrary valuation of the suit property to evade payment of Court fees and fixed, for the purpose of conferring jurisdiction on some Court which it does not have, or depriving the Court of jurisdiction which it would otherwise have, can also be interfered with by the Court. That was not a fact in the present case. This is an Application filed under Order 7, Rule 11 of the Code of Civil Procedure for rejecting the plaint, which is a drastic relief sought against the plaintiff, who knocked the doors of the Court for justice. However, in the very same decision, the Supreme Court has held that the Court fee has to be paid based on the plaint, as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint.

14. The other decision relied on by the petitioners is in the case of Chellakannu v. Kolanji, 2005 (3) MLJ 389. That was a case in which the plaint allegation was that the sale deeds are not binding on the plaintiff and the Court has come to the conclusion that the plaintiff being a party to the suit and substance of the suit is one for cancellation of the sale deed. In that case, the Revision was as against the order passed in an Interlocutory Application filed to direct the plaintiff to pay a Court fee under Section 40 of the Act or in the alternative, to reject the plaint. In that case, the Trial Court has considered the point whether the Court fee paid was correct or not and rendered a finding that the plaint ought to have been valued and the Court fee ought to have been paid under Section 40 of the Act and not under Section 25(d) of the Act. That finding was carried in Revision. Here again, this is not a Revision against such a finding rendered by the Trial Court.

15. None of the circumstances, which have been provided as reasons for rejecting the plaint in Order 7, Rule 11 has been established in the present case. This is not as if the Suit is filed without any cause of action. Cause of action has been stated to have arisen on the date of execution of the agreement and subsequent execution of the sale deeds which according to the respondent/plaintiff is an outcome of fraud. Under-valuation under Clause (b) of Rule 11 of Order 7, C.P.C, has not been determined by the Trial Court and no direction directing the plaintiff to correct the valuation has been given. No direction to the plaintiff to supply the requisite stamp paper as provided for under Clause (d) has also been issued. This is not also the case of the petitioners that the Suit is barred by limitation. So is the other requirement stated in Clauses (e) and (f). The plaint cannot be rejected on the ground that the plaintiff has no cause of action. There is a distinction between the plea that there was no cause of action and the plea that the plaint does not disclose cause of action. The question to be decided is whether the plaintiff has a cause of action to file a Suit or whether the relief sought for is to be determined on the basis of the materials other than the plaint which may be produced by the parties at appropriate stages in the Suit. For the limited purpose of determining the question as to whether the Suit has to be wiped off under Order 7, Rule 11 of the Code of Civil Procedure or not, the averment in the plaint are only to be looked into. So long as the plaint discloses some cause of action or raises some question fit to be decided by the Court, mere fact that the plaint is framed in a different manner and such framing of the plaint would make the case weak and not likely to succeed could never be a ground for striking a plaint. Further, the order passed by the Trial Court does not decide the rights of the parties finally. It is very well established legal principle that the amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Article 227 of the Constitution of India. At the same time, it is also equally well established that the supervisory jurisdiction under Article 227 of the Constitution of India has to be exercised for keeping the subordinate Courts within the bounds of their jurisdiction, when a subordinate Court has assumed jurisdiction, which it does not have or has failed to exercise the jurisdiction which it does have, or the jurisdiction though available being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise the supervisory jurisdiction. In the statutory revisional jurisdiction under Section 115 of the Code of Civil Procedure, the stress is on the question whether the order in favour of the party applying for revision would have given finality to the Suit or to other proceedings ? If the answer is ‘yes’, then the revision is maintainable. On the contrary if the answer is ‘no’, then the revision is not maintainable. Therefore, if the order impugned is of interim nature or does not finally decide the lis, the revision will not be maintainable and those orders cannot be the subject matter of revision. Presumably, finding it difficult to maintain a Revision against the order impugned under the amended provisions of Section 115 of the Code of Civil Procedure, the present Revision is filed invoking Article 227 of the Constitution of India.

16. The scope and amplitude of Article 227 of the Constitution of India has been considered by a catena of decisions of the Apex Court and the Apex Court has held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction, vide Surya Dev Rai v. Ram Chander Rai, 2003 (6) SCC 675. Article 227 confers a right of superintendence over all Courts and Tribunals to the High Court, but no corresponding right is conferred upon the litigant to invoke the jurisdiction under Article 227 as a matter of right. In fact, power under this Article casts a duty upon the High Court to keep the inferior Courts and Tribunals within the limits of its authority and that they do not cross the limit ensuring the performance of their duties in accordance with law conferring power within the ambit of the enactment treating such Court and Tribunals, vide Ousepth Mathai v. Abdul Khadir, 2002 (1) SCC 319. The power under Article 227 of the Constitution has to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when the supervisory jurisdiction is sought to be invoked during the pendency of any Suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an Appeal or Revision preferred there against and entertaining a Petition invoking of supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the Suit or proceedings. The High Court may feel inclined to intervene where the error is such, as if not corrected at that every moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. The High Court, in exercise of supervisory jurisdiction will not convert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character, vide Yeshwant Sakhalkar v. Hirabat Kamat Mhamai, 2004 (6) SCC 71.

17. Thus, in my considered view, none of the ingredients of Order 7, Rule 11 of the Code of Civil Procedure is made out in this case on facts, as stated supra, and even none of the expositions of law by the Supreme Court is made applicable to the facts of the present case. Hence, I am of the view that the petitioner has not made out any case for interference under Article 227 of the Constitution of India.

18. For the reasons stated in the foregoing paragraphs, the Revision is dismissed. No costs. The connected Miscellaneous Petition is consequently dismissed.