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Madras High CourtCRP/504/2022dismissed

A.Kalimuthu v. K.Ponnusamy

2022-03-02Honourable Mr Justice N. Seshasayee4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.03.2022

CORAM:

THE HONOURABLE MR.JUSTICE N.SESHASAYEE C.R.P(PD)NO.504 OF 2022 AND C.M.P.NO.2754 OF 2022 A.Kalimuthu S/o.Arunachalam Valayan

...Petitioner

Versus

1.K.Ponnusamy S/o.M.Kuppanda Gounder 2.K.Maruthachalam S/o.M.Kuppanda Gounder 3.Vikki @ Vikkinraj S/o.Rangasamy Valayar

...Respondents

PRAYER : The Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the fair and decreetal order dated 10.01.2022 in I.A.No.1 of 2021 in O.S.No.1807 of 2015 on the file of IV Additional Subordinate Judge, Coimbatore.

For Petitioner :

Mr.K.Prabhakaran

O R D E R

The Revision is preferred by the 1st defendant in O.S.No.1807 of 2015 on the file of the IV Additional Subordinate Court, Coimbatore, challenging an order of the learned IV Additional Subordinate Judge dismissing his application in I.A.No.1 of 2021, for rejection of the plaint under Order VII Rule 11 C.P.C.

2. A short note on the facts is now made with reference to three suits:

(a)The first of the suit is O.S.No.487 of 1991 on the file of Principal Sub Court, Coimbatore. This suit is laid for partition, in which Ponnusamy, Marudhachalam along

with another are the defendants. This suit was compromised, and both Ponnusamy and Marudhachalam referred to above have been allotted separate plots vide compromise decree dated 24.01.1992.

(b)The second suit is O.S.No.282 of 2011 on the file of Sub Court, Coimbatore. This suit is between one Kalimuthu and Vikki alias Vikkinaraj. They claim title to 2.0 acres in S.No.369 in Kaduvampalaya Village in Coimbatore North Taluk, which incidentally is the subject matter in the earlier mentioned O.S.No.487/1991. In this suit, the plaintiff claim that the Survey No.369 originally had an extent of 3.76 acres, that it belonged to his greatgrandfather Azhagan Valayan, that subsequent to his death, his descendants have sold 1.76 acres, and that the defendant belongs to another branch of Azhagan Valayan and seeks partition of this 2.0 acres. It appears that a preliminary decree has been passed, following which necessary application for passing a final decree has been taken out, in which, a Commission too has been appointed, and the Commissioner is also stated to have visited the property.

(c)The third suit is O.S.No.1807 of 2015 on the file of Sub Court, Coimbatore. This suit is laid by the aforesaid Ponnusamy and Marudhachalam against the parties to the second mentioned suit in O..No.282 of 2011 viz., Kalimuthu and Vikki, and were arrayed as defendants. The plaintiffs herein allege that they have been allotted separate plots in S.No.369, in the partition decree in O.S.No.487/1991, that the decree passed in the second mentioned suit in O.S.No.282 of 2011 is a collusive decree, and has sought for declaration of their title. The plaintiffs in this suit got themselves impleaded in O.S.No.282 of 2011 ( second suit).

3.1 It is in this setting, the first defendant in O.S.No.1807/2015, the revision petitioner herein, took out an application in I.A.No.1 of 2021, for rejection of plaint, on the ground that inasmuch as the first plaintiff Ponnusamy has got impleaded in O.S.No.282/2011, vide order of the trial Court dated 03.01.2014 in I.A.No.580/2013, there is no cause of action to sustain O.S.No.1807/2015, without seeking a prayer to set aside the preliminary decree passed in O.S.No.282/2011. Secondly, the plaintiffs in O.S.No.1807/2015 have under-valued the suit property, wherein they have stated that the market value of the suit property is at Rs.1,50,000/-, whereas the guideline value of the property from 01.04.2012 to 08.06.2017 is at Rs.7,535/- per sq.ft., and if calculated for 2 acres, the total market value would be at Rs.6,57,052/-. Thirdly, they

have not produced shred of papers to show how they are entitled to the property, and that the decree obtained is a collusive decree.

3.2 The plaintiffs in the present suit filed necessary counter. After carefully evaluating the rival contentions, the trial Court chose to dismiss I.A.No.1 of 2021, filed for rejection of plaint vide its order dated 10.01.2022, and the same is under challenge.

4.Heard Mr.K.Prabhakaran, the learned counsel appearing for the Revision Petitioner. With his meticulous presentation of facts, he explained to the Court elaborately how the plaintiffs in O.S.No.1807 of 2015 are attempting to hoodwink the judicial process. Having heard the counsel, this Court may have to record that it does not find itself in the same page which the learned counsel for the Revision Petitioner may want it to be.

5. If the facts are analysed, while the plaintiffs in O.S.1807 of 2015 claim title to the suit property as per a compromise decree passed in O.S.487 of 1991, the defendants/the revision-petitioner claim right based on a preliminary decree in O.S.282/2011. And, neither side or their predecessors-in-title were made parties to the suit filed by the other side. In other words, both the side have excluded the other in their respective suit. And today, both sides claim that the decree obtained by the other either in O.S.487 of 1991 or in O.S.282 of 2011, as the case may be, is collusive. This can be ascertained only after a due and proper trial, and cannot be decided preemptively. The learned counsel submitted that the plaintiffs in O.S.1807 of 2015, the respondents herein have no semblance of document except the final decree in O.S.487 of 1991. The adequacy of proof of the claims of the respondents 1 & 2 herein is also a matter that has to be tested.

6.1 A plaint can be rejected under Order VII Rule 11 C.P.C. only if the facts as pleaded by the plaintiff does not disclose a cause for an action, and not otherwise. Given the nature of facts pleaded by the plaintiffs in O.S.1807 of 2015, this Court cannot hold that the plaint deserves to be rejected. 6.2 Turning to the plea of under-valuation is concerned, this is also a matter which the trial Court can consider and take up the matter even as a preliminary issue and decide it.

7. In the result, this Court does not find that the order of the trial Court is either illegal or irregular or improper as to warrant an interference by this Court under Article 227 of

the Constitution, and accordingly this Civil Revision Petition stands dismissed at the admission stage itself. Consequently, the connected C.M.P.No.2754 of 2022 is also dismissed. No costs. Sd/- Assistant Registrar(CS-III) // True Copy // Sub Assistant Registrar kas To The IV Additional Subordinate Judge Coimbatore.

+1cc to Mr.K.Prabhakaran, Advocate Sr.No.14007 C.R.P(PD)No.504 of 2022 and C.M.P.No.2754 of 2022 SKM(CO) RVM(13/06/2022)