Sankilidurai Minor v. Rajeswari

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.03.2021 CORAM :

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY CRP(PD).No.3864 of 2018 and CMP.No.21517 of 2018 1.Sankilidurai 2.Dharmaraj ... Petitioners

Versus

1.Rajeswari 2.G.Dhanushkodi 3.R.Kavitha ... Respondents Civil Revision is filed under filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 09.10.2018 made in I.A.No.910 of 2018 in O.S.No.408 of 2016 on the file of the District Munsif, Dharapuram by allowing this Civil Revision Petition. For Petitioners : Mr.Ponraj N.

For Respondents : No appearance * * * *

O R D E R

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This Civil Revision Petition is filed to set aside the fair and decreetal order dated 09.10.2018 made in I.A.No.910 of 2018 in O.S.No.408 of 2016 on the file of the District Munsif, Dharapuram by allowing this Civil Revision Petition.

2.The revision petitioner filed the Interlocutory Application in I.A.No.910 of 2018 under Order VII Rule 11(d) and Section 151 of the Civil Procedure Code to reject the plaint.

3.This Civil Revision Petition was filed in the year 2018. Originally, it came up for hearing on 04.12.2018 and 01.03.2021 and it was directed to be listed today i.e. on 16.03.2021, the learned counsel appearing for the petitioners seeks time. Though notice was ordered, served and none appeared for the respondents. However, the court is not inclined to provide any further time as sought. Heard the counsel for the peititoners. 4.The case of the revision petitioners is that the first and second petitioners are minor children and represented by their mother as Guardian. The suit was filed by the respondents/plaintiffs for declaration to declare that the first respondent is the wife and the second and third respondents are the children of Late Gopalakrishan.

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5.The petitioners are the children of Late Gopalakrishnan and the petitioners mothr is the wife of the said Late Gopalakrishnan, who died in a road accident on 24.03.2016. The respondents by misusing the name of the said Gopalakrishnan attempting to get illegal enrichment. The respondents have no connection with the petitioner's father Gopalakrishnan. The Death Certificate filed by the respondents shows that the name is Gopalakrishnan. The memo issued by the fourth respondent also shows that the name is Gopalakrishnan.

The respondents have stated in their plaint that the age of the first plaintiff is 41 and the age of the second and third plaintiffs are 28 and 29, which shows that the plaintiffs have filed the suit fraudulently and the same is barred by law and the plaintiffs did not stated about when the marriage between the 1st plaintiff and the said Gopal @ Gopalakrishnan was happended. Since the plaintiffs have filed the suit fraudulently, the plaint has to be rejected. 6.

''10.On considering the rival submissions made by the counsel on both side, it is found that the issue is relating 3/9

to tbe name of the person who died in a road accident on 24.03.2016 and his legal heirs. According to the respondents/plaintiff, the name of the person is Gopal @ Gopalakrishnan and the 1st respondent is his wife and the 2nd and 3rd respondents are his children. On the other hand, it is the case of the petitioners that the name of the person died in a road accident on 24.03.2016 is Gopal and not Gopal @ Gopalakrishnan. It is also the further stand of the petitioners that the 1st and 2nd petitioners are the children of the late.Gopal and the petitioners' mother Lakshmi is the wife of the said late Gopal. But the respondents taking advantage of his name trying to get a illegal enrichment. The counsel for the petitioners relied on the following judgments in support of his contention.

i.Judgment of the Hon'ble Supreme Court of India reported in AIR 1994 Supreme Court 853 (S.P.Chengalvaraya Naidu (Dead) by LRs Vs Jegannath (Dead) by LRs and another) ii. Judgment of the Hon'ble High Court of Delhi in RFA (OS)No.115/2014 dated 07.11.2014 (TMuralidhar Vs P.V.R.Murthy) 11.The ground raised by the Petitioners for rejecting the plaint is that the suit has been filed fraudulently. But the respondents claimed that they and the petitioners are the legal heirs of late.Goapl @ Gopalakrishnan for which they are ready to produce the evidence. The petitioners 4/9

though have stated that the respondents have filed the suit fraudulently, the same could be decided only after the trial on production of evidence on either side. At this stage, this court could not conduct a mini trial to come to a conclusion that the sult has been filed fraudulently. It is a šettled position of law that for deciding the question of rejecting the plaint the court has to consider only the pleadings made in the plaint and not the averments made in the petition or written statement. In this context, it is useful to refer the judgment of the Hon'ble High Court of Madras (Madurai Bench) reported in 2015-2 MWN (Civil) 641 (V.Bragan Nayagi Vs R.R.Jeyaprakasam and another) which held as follows, "39.

From the submissions made by both sides, this court is of the considered opinion that the allegations made in the plaint cannot be gone into at the threshold as it is a matter to be tried in suit. The allegation of suppression of fact, misrepresentation or even fraud cannot be a ground for rejection of plaint. Even if the cause of action pleaded is false or deliberate falsehood, the same cannot be gone into in an application under Order 7 Rule 11 of the Code of Civil Procedure."

12.Hence it is to be seen that the merits of the pleadings in the plaint could not be gone into in the petition for rejection of plaint. The pleading as stated in the plaint must exfacie show that the plaint is liable to be rejected. But this court on mere reading of the plaint found that there is a 5/9

sufficient cause of action to maintain the suit. Normentioning of the details of marriage and the discrepencies in age of the pla te would not by itself disentitle the plaintiffs from prosecuting the suit. In an event, it is for the plaintiffs to prove their case through their evidence. But without giving opportunity to the plaintiff, to produce evidence in supportiof the pleadings, this court could not reject the plaint at the threshold itself. No doubt, this court has ample power to reject the plaint when the suit is barred by law. But in the present case, this court does not find any reason to reject the plaint on the ground that the suit is barred by law. Hence the judgments relied on by the counsel for the petitioners is not applicable facts and circumstances of the present petition. Hence this court is of the considered view that the grounds raised by the petitioners for rejecting the plaint is not acceptable and the same could be decided only in the trial. Hence on considering all the above, this court is not inclined to allow the petition.''

7.The learned counsel appearing for the petitioners further submitted that the marriage as well as the birth of the children to Late Mr.Gopalakrishnan is seriously disputed. The petitioners mother alone is the first wife and the first respondent is the second wife. Therefore, he submitted that there is no chance of child birth at the first respondent age of 12. At the time of filing of the suit, 6/9

the age of the petitioners mother/first plaintiff has been mentioned as 41 and the age of the second and third plaintiffs as 28 and 29 respectively. Therefore, there is no probability of birth at the age of 12 years of the first respondent/plaintiff.

8.Bestowing my thoughtful consideration to this aspect, I am of the view that based on the age of the children, the paternity of the children, without trial, it would be unwise to take any decision on this aspect at this stage and any decision in the pre-trial would amounts to rendering injustice to the respondents/plaintiffs.

9.On perusal of the order passed by the Court below, it appears that it has disposed of the I.A. for rejection of plaint leaving open to decide all the issues latter the trial. As such, this Court does not find any infirmity in the order passed by the court below in I.A.No.910 of 2018. Therefore all the issues raised by the petitioners can be decided after conducting the proper trial. 10.In view of the above, there is no merit and substance in the present Civil Revision Petition and this Court is not inclined to interfere with the order passed by the court below in I.A.No.910 of 2018. Hence, the civil revision 7/9

petition is liable to be dismissed. The trial Court is directed to dispose of the O.S.No.408 of 2016, within a period of six months, from the date of receipt of a copy of this order, since the matter is pending from the year 2016. 11.Accordingly, this Civil Revision Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. 16.03.2021 Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order ah To The District Munsif, Dharapuram.

KRISHNAN RAMASAMY, J., 8/9

ah CRP(PD).No.3864 of 2018 and CMP.No.21517 of 2018 16.03.2021 9/9