IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 OP(C).No. 945 of 2010(O) ------------------------------ AGAINST THE ORDER DATED 18/10/2010 IN IA.3742/2010 IN OS.488/2010 of I ADDL. MUNSIFF COURT,ERNAKULAM .................... PETITIONER/1ST DEFENDANT ----------------------------------- XAVIER BIJU K.A., AGED 37 YEARS, S/O. ANTONY, KANIYAMPURAM HOUSE, PONJIKKARA DESOM, MULAVUKAD VILLAGE, ERNAKULAM-682 504. BY ADV. SRI.A.DINESH RAO RESPONDENT(S): PLAINTIFFS ----------------------------------- 1. PAUL, AGED 42 YEARS, S/O. ANTONY, KADAMPARAMBIL HOUSE, CHERANALLOOR VILLAGE, ERNAKULAM-682 033. 2. GRACY PAIL, AGED 39 YEARS, W/O. PAUL, KADAMPARAMBIL HOUSE, CHERANALLOOR VILLAGE, ERNAKULAM-682 023. 3. PRADEEP, AGED 38 YEARS, PANDARAPARAMBIL HOUSE, THEVARA, KOCHI-682 013. R2 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 945/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED EXECUTED BY RESPONDENTS 1 & 2 IN FAVOUR OF THE PETITIONER AND DATED 06/01/2010. P2: COPY OF THE PLAINT IN O.S. NO.488/2010 ON THE FILE OF THE 1ST ADDL. MUNSIFF COURT, ERNAKULAM. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER AND DATED 18/06/2006. P4: COPY OF THE AGREEMENT FOR SALE DATED 10/07/2009 ENTERED INTO BY RESPONDENTS 1 & 2 AND THE PETITIONER. P5: COPY OF I.A. NO.3742/2010 IN O.S. NO.488/2010. P6: COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 & 2 IN I.A. NO.3742/2010 IN O.S. NO.488/2010. P7: COPY OF THE ORDER DATED 18/10/2010 IN I.A. NO.3742/2010 IN O.S. NO.488/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.945 of 2010 --------------------------------------- Dated this 18th day of July, 2011 JUDGMENT Ext.P7, order dated October 18, 2010 on I.A.No.3742 of 2010 in O.S.No.488 of 2010 of the Court of learned First Additional Munsiff, Ernakulam is under challenge. Petitioner filed that application to reject the plaint under Order VII of Rule 11(d) of the Code of Civil Procedure (for short, "the Code”) contending that respondents 1 and 2 have an equally efficacious remedy of filing a suit for specific performance of the alleged agreement for re-conveyance and hence respondents 1 and 2 cannot claim injunction alone in view of Sec.41(h) of the Specific Relief Act (for short, "the Act”). Learned Munsiff rejected that contention and dismissed I.A.No.3742 of 2010. That order is under challenge. Learned counsel has contended that the suit is vexatious and frivolous and in such situation it is the responsibility of an Activist Judge to nip the suit in the bud by going through the averments in the plaint and if necessary by examining respondents 1 and 2 under Order X of the Code. Learned counsel has placed reliance on the decisions in Jasmer Singh& Ors. Vs. Kanwaljit Singh and Anr. (AIR 1991 Punjab & Haryana 194), N.V.Srinivasa O.P(C).No.945 of 2010 -: 2 :- Murthy and Ors. Vs. Mariyamma by proposed Lrs. And Ors. (AIR 2005 SC 2807) Sopan Sukhideo Sable & Ors. Vs. Assistant Charity Commissioner and Ors. (2004(3) SCC 137), Saleem Bhai and Ors. Vs. State of Maharashtra and Ors. (AIR 2003 SC 759), Rajendra Kumar Vs. Mahendra Kumar Mittal and Ors. (AIR 1992 Allahabad 35) and T.Arivandandam Vs. T.V.Satyapal and Anr. ((1977)4 SCC 467). Learned counsel contended that attempt of respondents 1 and 2 is to obtain a relief which otherwise could not be granted to them by a circuitous method of filing a suit for injunction while refraining from filing a suit for specific performance of the alleged agreement for re-conveyance. Learned counsel for respondents 1 and 2 submitted that the ultimate relief prayed for in the suit is only a decree for prohibitory injunction against eviction of respondents 1 and 2 otherwise than under due process of law. If respondents 1 and 2 are found to be in possession of the suit property, it is open to the Court to grant that relief if they have a colour of right even against the true owner notwithstanding the contentions regarding agreement for re-conveyance of the property. It is submitted by learned counsel that petitioner has already filed a suit of recovery of possession of O.P(C).No.945 of 2010 -: 3 :- the suit property and that it is the policy of law the person in possession shall not be disturbed otherwise than by due process of law. 2. Respondents 1 and 2 came with the allegation that the suit property belonged to them and that while so, they had a loan transaction with the third respondent/defendant No.2 who is a money lender and as desired by the third respondent and petitioner, they happened to give signed blank cheques, stamp papers etc. Ultimately, it is alleged, petitioner and the third respondent compelled them to execute a sale deed regarding 2.100 cents and a newly constructed building thereon as security for repayment of the loan. There was also agreement between the parties that on the loan being repaid and the account being closed, petitioner would re-convey the property to respondents 1 and 2. It was agreed that following the execution of the sale deed the agreement for re-conveyance also will be executed on the same day. But immediately after execution of the sale deed petitioner left the place without executing the agreement of re- conveyance though for the said purpose a stamp paper for `.50/- also was purchased. Respondents 1 and 2 contended in the plaint that the sale deed did not transfer title to the petitioner O.P(C).No.945 of 2010 -: 4 :- but, it was executed merely as a security. The relief prayed for in the plaint (Ext.P2) is a decree for prohibitory injunction restraining petitioner and his men from forcibly evicting respondents 1 and 2 and their family members from the suit property without resorting to the due process of law. 3. So far as rejection of plaint under Order VII, Rule 11 of the Code is concerned various authorities on the point say that what is relevant for consideration is only the averments in the plaint and the documents produced along with it. 4. Recourse is made to Rule 11(d) of Order VII of the Code which states that if the plaint appears to be barred by any law for the time being in force, the plaint is liable to be rejected. Learned counsel has placed reliance on Sec.41(h) of the Act which states that when equally efficacious remedy is available to the plaintiff, no order of injunction is to be granted. 5. I must bear in mind that so far as rejection of plaint under Order VII of Rule 11(d) of the Code is concerned, binding authorities say that a Court is not required to go into intricate questions of law and fact at depth and that only if it appears from the plaint that the suit is barred by any law the plaint could be rejected. Here, respondents 1 and 2 seek a prohibitory O.P(C).No.945 of 2010 -: 5 :- injunction that they may not be evicted otherwise than under due process of law. 6. Jasmer Singh& Ors. Vs. Kanwaljit Singh and Anr. and Rajendra Kumar Vs. Mahendra Kumar Mittal and Ors. (supra) relied by the learned counsel are cases where suit for injunction restraining the opposite parties from alienating property was requested for. There, it was held that the person who had offered to purchase the property having had an equally efficacious remedy of filing a suit for specific performance, a decree for prohibitory injunction as above stated should not be granted. Yet another decision that learned counsel has placed reliance is N.V.Srinivasa Murthy and Ors. Vs. Mariyamma by proposed Lrs. And Ors.(supra). There, it came out that the document in question was executed as early as on 05.05.1953 and was filed some time in the year 1996. The apex court held that as per the allegations in the plaint, even the cause of action to sue for specific performance arose in the year 1987 and by the time the suit was filed in the year 1996, even a suit for specific performance was hopelessly barred by limitation. That was one of the reasons for holding that the plaint is liable to be rejected at the threshold. Learned counsel for petitioner contends that in O.P(C).No.945 of 2010 -: 6 :- that case on the factual situation also, the plaint was rejected. But, I must understand the decision on the background of that case that the impugned document was dated 05.05.1953, the cause of action to sue for specific performance arose in the year 1987 and the suit (for other reliefs) was filed in the year 1996 by which time the suit for specific performance become barred by limitation. Other decisions relied by the learned counsel related to the scope of Order VII, Rule 11 of the Code. 7. As I stated, in the present case plaint averments is that respondents 1 and 2 are in possession and enjoyment of the property, they apprehend a forcible eviction on the strength of the document they executed which according to them is merely a security and does not confer title and hence they prayed for a decree of prohibitory injunction against forcible eviction, otherwise than under due process of law. In that situation, I am not inclined to say that the plaint does not disclose any cause of action or that the relief of injunction could not be granted. The Court has to consider whether respondents 1 and 2 are in possession of any colour of title and is entitled to the injunction. If so, the contention that the plaint ought to be rejected under Order VII Rule 11(d) of the Code cannot be accepted. O.P(C).No.945 of 2010 -: 7 :- 8. Learned counsel for petitioner requested that respondents 1 and 2 may be directed to amend the plaint if they wished to seek specific performance of the alleged agreement for re-conveyance. I am afraid, it is not necessary for this Court to issue any such direction. Respondents 1 and 2 have to act as they are advised in the matter. 9. Certainly, it is open to the petitioner to request learned Additional Munsiff-I, Ernakulam to expedite trial and disposal of the case. If necessary, it is open to the parties to get the present suit and the suit for recovery of possession filed by petitioner consolidated in the same Court for an effective adjudication of the dispute involved. With the above observations this original petition is dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-