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V. Jacob Nixon v/s Vijayakumari

    C.R.P (PD). No. 2047 of 2022 & C.M.P. No. 10526 of 2022

    Decided On, 28 July 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE R.N. MANJULA

    For the Petitioner: D. Murthy, Advocate. For the Respondent: S. Mayilnathan, Advocate.



Judgment Text

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair decreetal order passed in I.A.No.215 of 2019 in O.S.No.114 of 2018 dated 21.04.2022 by the District Judge – II, Kanchipuram.)

1. This Civil Revision Petition has been preferred challenging the order of the learned District and Sessions Judge, Kanchipuram dated 21.04.2022, made in I.A.No.215 of 2019 in O.S.No.114 of 2018.

2. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent and perused the materials available on record.

3. The revision petitioner is the defendant in the suit filed by the respondent / plaintiff for the relief of recovery of possession. The petitioner / defendant has filed a petition to reject the plaint under Order VII Rule 11 of C.P.C and the said petition was dismissed. Aggrieved over that, this Civil Revision Petition has been preferred.

4. The learned counsel for the petitioner submitted that the respondent / plaintiff has no locus standi to file a suit against him, since the revision petitioner has already filed a suit in O.S.No.170 of 2005, for the relief of specific performance in respect of the same suit property, in view of the sale agreement executed between the petitioner and one Selvanayagam on 15.04.2005; the defendants in O.S.No.170 of 2005, namely Varadarajan and Nirmala have executed a power of attorney in favour of one Selvanayagam; the said Selvanayagam had executed a sale agreement dated 15.04.2005, in favour of the revision petitioner for himself and as a power agent for the defendants viz., Varadarajan and Nirmala; since Selvanayagam did not execute the sale deed as agreed, the revision petitioner filed the suit in O.S.No.170 of 2005, for seeking the relief of specific performance; the said Selvanayagam died in the year 2005; after the death of Selvanayagam, the defendants in O.S.No.170 of 2005, sold the suit property to the respondent; So, the respondent is a person who has purchased the property during the pendency of the earlier suit in O.S.No.170 of 2005.

5. According to the revision petitioner, since an exparte decree was passed in O.S.No.170 of 2005 and the same is pending, the respondent / plaintiff is not entitled to maintain this suit for recovery of possession. The further contention of the revision petitioner is that the learned Trial Judge did not notice the decree has already been passed in O.S.No.170 of 2005, in favour of the revision petitioner; and respondent has suppressed all the said facts and filed the suit without any cause of action and hence the suit is not maintainable.

6. The learned counsel for the respondent / plaintiff submitted that the vendors of the respondent / plaintiff has not executed any power of attorney in favour of one Selvanayagam as alleged by the revision petitioner; therefore, the respondent / plaintiff is a bonafide purchaser; since, the revision petitioner / defendant is a trespasser of the suit property, the respondent has filed a suit in O.S.No.114 of 2018, for recovery of possession; since there are triable issues, the learned Trial Judge has rightly dismissed the petition to reject the plaint.

7. Point for consideration :

Whether the order of the learned Trial Judge in dismissing the petition filed by the revision petitioner under Order VII Rule 11 to reject the plaint in O.S.No.114 of 2018, is fair and proper?

8. The contention of the revision petitioner is that he is an agreement holder for the suit property. It is alleged that the property was owned jointly by Selvanayagam and the vendors of the respondent / plaintiff viz., Varadarajan and Nirmala. The petitioner has stated that the said Varadarajan and Nirmala had executed a power of attorney in favour of Selvanayagam and Selvanayagam as power agent and for himself executed a sale agreement dated 15.04.2005, in favour of the revision petitioner. It is true that the revision petitioner has filed a suit in O.S.No.170 of 2005, for seeking the relief of specific performance against the vendors of the respondent / plaintiff and in the said suit he has got an exparte decree. The vendors of the respondent / plaintiff viz., Varadarajan and Nirmala had subsequently filed a petition to set aside the exparte decree and that was dismissed by the learned Trial Court. However, the said Varadarajan and Nirmala challenging the above said order of dismissal, by filing a Civil Miscellaneous Petition before the District Judge, Kanchipuram in C.M.A.No.3 of 2012. The said petition was allowed vide order dated 21.11.2016. In view of the same, the suit in O.S.No.170 of 2005, got revived and now pending for disposal.

9. The learned counsel for the respondent / plaintiff submitted that the vendors of the respondent / plaintiff were seriously contesting the above said suit. Since the suit property was sold in favour of the respondent / plaintiff, the respondent / plaintiff has filed a suit for recovery of possession. So far as the respondent / plaintiff is concerned, she claims herself as a rightful purchaser from lawful owners and acquired lawful ownership for the suit property. By making such averments, she has filed the suit for recovery of possession. In the said suit, it might be the defence of the revision petitioner / defendant that he is the agreement holder of the suit property and also got the relief of specific performance in his favour against the vendors of the respondent / plaintiff.

10. It is to be noted from the averments of the plaint that the respondent / plaintiff claims her right over the suit property through her purchase from the original owners. While taking the plaint on file, the Court cannot make an exhaustive enquiry into the pleadings. The respondent / plaintiff did not deny about the pendency of the earlier suit in O.S.No.170 of 2005. But according to her, it is a dispute between her vendors and the revision petitioner. Even if the revision petitioner contends that the respondent / plaintiff had purchased the property even after knowing about the sale agreement in his favour, that has to be stated by way of filing his written statement.

11. The respondent / plaintiff pleads the cause of action basing on purchase she made from the original owners. If in the earlier suit in O.S.No.170 of 2005 the Court holds that the agreement dated 15.04.2005, is binding on the vendors of the respondent, the plaintiff will have a bad case. Just because the judgment of the earlier case will determine the quality of the subsequent suit or might have impact on the entitlement of the plaintiff in the subsequent suit, it cannot be said that the subsequent suit is not maintainable. Obviously, the respondent / plaintiff is not a party to the suit pending in O.S.No.170 of 2005. In fact, the respondent / plaintiff has got the knowledge about the pendency of the earlier suit, but, she had chosen to ignore it by calling it as a fraudulent suit and filed the present suit. In view of the pleadings so made by the respondent / plaintiff in the present suit and the revision petitioner claims himself as the agreement holder and filed a suit, there are triable issues in both cases.

12. If the revision petitioner / defendant could successfully establish his entitlement for the relief of specific performance in the suit filed by him, the suit filed the respondent / plaintiff will fail. If the revision petitioner could not succeed in the suit filed for specific performance, then the respondent / plaintiff will be entitled to get the relief of recovery of possession as prayed by her in this suit. At the best, the revision petitioner could have got the subsequent suit i.e., O.S.No.114 of 2018, stayed till the disposal of earlier suit in O.S.No.117 of 2005, by way of filing a petition under Section 10 of C.P.C. But, he cannot claim that there is no cause of action for the present suit. The revision petitioner derives his cause of title from the alleged sale agreement dated 15.04.2005. Whereas, the respondent / plaintiff derives her cause of action from the date when she got the sale deed executed in her favour from the owners of the property viz., Varadarajan and Nirmala on 20.12.2006.

13. While taking the suit on file, the learned Trial Judge cannot make an exhaustive enquiry into the merits of the pleadings. It can only be seen whether the averments of the plaint makes out a prima facie case basing on the cause of the action pleaded by the plaintiff and it is barred by limitation or under any law. The learned Trial Judge has rightly observed that there are certain triable issues have arisen in the present suit and hence it cannot be rejected. Only when the plaintiff does not disclose any right or files a suit with presumptive cause of action, the Court needs to be vigilant about its maintainability. Since the revision petitioner and the respondent have filed their suits on the basis on the

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ir respective claim for entitlement and basing on their respective cause of action, both the suits should be tried in order to find out who is entitled to get the remedy and why. 14. As stated earlier, the judgment of the earlier suit in O.S.No.170 of 2005, cannot have any bearing on the subsequent suit in O.S.No.114 of 2018 and hence, the parties can take steps either to try both suits jointly or to stay the subsequent suit until the disposal of the earlier suit, if so advised. Since, the learned Trial Judge has rightly dealt the issue and found that the respondent / plaintiff is entitled to maintain the suit on the basis of the averments made in the plaint, I find no reason for interference. 15. Hence, this Civil Revision Petition stands dismissed and the order passed by the learned District and Sessions Judge, Kanchipuram dated 21.04.2022, made in I.A.No.215 of 2019 in O.S.No.114 of 2018, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
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