R.Abdul Rasheed v. R.Rameejabi

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.01.2017

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)No.39 of 2017 (PD) and CMP(MD).No.161 of 2017 R.Abdul Rasheed ... Petitioner/ Petitioner/ Defendant Vs.

1.R.Rameejabi 2.R.Jaibunisha 3.Meharunnisha 4.R.Jeenath Begam 5.R.Sherifa Bi ..Respondents/ Respondents / Plaintiffs PRAYER: Civil Revision Petition is filed, under Article 227 of the Constitution of India, to prefer the above Civil Revision Petition against the Fair and Decreetal order dated 10.11.2016 made in I.A.No.274 of 2016 in O.S.No.32 of 2016 on the file of the I Additional District Judge (PCR), Trichirapalli. For Petitioner :

Mr. T.Antony Arul Raj

ORDER

The petitioner has filed this Civil Revision Petition against the Fair and Decreetal order dated 10.11.2016 made in I.A.No.274 of 2016 in O.S.No.32 of 2016 on the file of the I Additional District Judge (PCR), Trichirapalli.

2. The petitioner is the defendant. The respondents are the plaintiffs. The respondents filed suit in O.S.No.32 of 2016 on the file of the I Additional District Judge (PCR), Trichirapalli for partition. The petitioner filed I.A.No.274 of 2006 to reject the plaint on the ground that no cause of action have arisen, after death of their mother. The respondents filed counter affidavit and stated that they are entitled to relief claimed in the suit and stated that cause of action has arisen and only the averments in the plaint can be considered in the application for rejection of the plaint and prayed for dismissal of the application.

3. The learned Judge considering the averments made in the affidavit and counter affidavit dismissed the application on the

ground that plaint discloses cause of action and only the averments made in the suit alone can be considered while deciding the application under 7 Rule 11 of CPC and the averments made in support of the petition cannot be considered.

4. Against the said order present Civil Revision Petition has been field.

5. The learned counsel appearing for the petitioner submitted that a reading of the plaint would show that no cause of action has arisen. He has also relied on the Judgment reported in 2012

(4) CTC 308 (The Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust), wherein relevant paragraph nos. 7 and 8, read as follows:-

7. ...

It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material9s) to sue, it is the duty of the Trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer, J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.

Cause of Action:

8. While scrutinizing the plaint averments, it is the bounden duty of the Trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them given the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action". A cause action must include some act done by the Defendant since in the absence of such an act no cause of action can possible accrue. While scrutinizing the plaint averments, it is the duty of the trial Court to ascertain the materials for the cause of action. In this case, there is no material available for filing the suit and there is no cause of action arose for filing of the suit.

6. I have heard the learned counsel appearing for the petitioner and perused the materials available on record.

7. The petitioner filed an application for rejection of the plaint on the ground that the plaint does not disclose any cause

of action and the respondents denied the same. The learned Judge considered the averments made in the plaint and held that plaint discloses cause of action and held that averments in the written statement and affidavit in support of the application to reject the plaint, cannot be considered. The learned Judge has exercised his jurisdiction conferred on him in proper perspective and has given valid reason for dismissal of the application.

8. The learned Judge stated that by way of settlement deed executed by their mother, they have also pleaded in the plaint in Para 11 that they have relinquished their claim based on the settlement deed sought for in the earlier suit and now, they are ready to share the suit properties with the defendant as per the Islamic Law. It is further pleaded that the defendant is not ready for partition. The cause of action arose in the month of August 2014, subsequently, the petitioner refused to agree for amicable partition and instead attempted to grab the plaintiff's respective shares in the suit properties and held that reading of the plaint documents along with plaint discloses cause of action for filing the suit for partition.

The Judgment relied on by the counsel for the petitioner and cited above has no application to the present facts of the case. In the circumstances, there is no illegality or irregularity in the order passed by the Court below warranting interference by this Court. 9.In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.

Sd/- Assistant Registrar(AE) /True Copy/ Sub Assistant Registrar To The I Additional District Judge (PCR), Trichirapalli. +1 cc to MR.T.ANTONY ARUL RAJ, Advocate SR.No.2199 C.R.P(MD)No.39 of 2017 (PD) and CMP(MD).No.161 of 2017 10.01.2017 SMA/SKN/10.03.2017:3P/3C