IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.07.2011 CORAM THE HON'BLE Mr. JUSTICE K.VENKATARAMAN C.R.P. (PD) No.1830 of 2011 and M.P.No.1 of 2011 M.P.Muthu ... Petitioner /5th Defendant Vs. 1 The Winners Education and Charitable Trust Rep. by its Trustees 2 D.Valankumar 3 K.K.Nousheer 4 V.Merlin Nary 5 M.Bavakutty ...1 to 5 Respondents/Plaintiffs 6 M.Somu 7 M.S.Manju selvan 8 O.E.V.Syed Eask 9 M.Mohamed Sadik 10 P.Mathumatha 11 T.Mahadevan Pillai 12 Sakila Banu 13 Vasuki 14 K.Babu 15 E.Mohan 16 Razia Banu 17 B.Salim Baza 18 Dr.Arunkumar 19 S.Muthu 20 S.Baby vilasini 21 T.S.Nathan 22 Sarala Sivakumari 23 Parvathy 24 K.Parimala 25 Dr.S.Sivathanu Pillai 26 P.Rugmani ... Respondents/Defendants 6 to 21 Civil Revision Petition has been filed under Article 227 of the Constitution of India to struck of the plaint in O.S.No.19 of 2011 on the file of Principal District Judge, Erode. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.P.Jayaraman, S.C. for Mr.D.C.Muthu santhan For respondents : Mr.S.Parthasarathy, S.C. for 1 to 5 Mr.S.Nambi Arooran For respondent-8 : Mr.D.Selvaraj Respondents : Given up 7,9 11, 13, 16, 18,20 to 26 RR9 to 12, 14, 15, 17 : No appearance O R D E R The present revision is filed seeking to struck of the plaint in O.S.No.19 of 2011 pending on the file of Principal District Judge, Erode. 2 Three reasons set out by the learned Senior counsel for the petitioner to support the case of the petitioner. (i) The first one is with regard to jurisdiction. It is the case of the learned Senior counsel for the petitioner that the plaintiffs 2 to 4 are not within the jurisdiction of the learned Principal District Judge, Erode and all the defendants are not within the jurisdiction of the said Court and hence the suit is liable to be struck of. (ii) The prayer that has been sought for by the respondents 1 to 5 are for direction to the 5th defendant to pay the first plaintiff a sum of Rs.10 lakhs with interest and the second prayer for restraining the defendants 1, 2, 5, 7, 9, 16 to 22 from in any way interfering with the management of the plaintiffs' Trust, its Polytechnic college named "The Winners Polytechnic College" in Thattaravalasu village of Dharapuram Taluk. When the claim has been made against the petitioner/5th defendant in the said suit, absolutely there is no cause of action made against the petitioner. Hence the claim has to be rejected. (iii) The third ground on which the learned Senior counsel for the petitioner placed reliance is that the documents do not disclose that the petitioner being the 5th defendant has misappropriated the amount warranting decree against him. Not even a single document has been filed to establish that the petitioner is due and liable to pay a sum of Rs.10 lakhs to the plaintiffs as per the claim made in the suit. Thus, the learned Senior counsel for the petitioner submitted that it is a clear case of abuse of process of law warranting this Court to struck of the plaint. He has also https://hcservices.ecourts.gov.in/hcservices/ relied on the decision of this Court reported in (2011)3 MLJ 21 (M.V.Jayavelu vs E.Umapathy) for the said purpose. 3 I have carefully considered the submissions made by the learned Senior counsel for the petitioner and the learned Senior counsel for the respondents 1 to 5. 4 It is an admitted case that the respondents 1 to 5 herein have laid the suit against the petitioner who is 5th defendant in the said suit and few others for the following reliefs: "(a) Directing the 5th defendant to pay the first plaintiff ten lakh rupees with interest at 12% per annum from the date of suit till payment in full. (b) Restraining the defendants 1,2,5,7,9 and 16 to 22, their men, agents, servants or anyone claiming under them by means of a permanent injunction from in any way interfering with the management of the plaintiffs' Trust, its Polytechnic college named "The Winners Polytechnic College" in Thattaavalasu Village of Dharapuram Taluk run by the Trustees, namely the plaintiffs 2 to 5 and defendants 3 and 4 and the suit properties with buildings and all infrastructures therein." 5 To make a claim against the petitioner, 5th defendant in the suit, the following averments made in the plaint: "XI As original and true Trustees plaintiffs 2 to 5 and defendants 1 to 5 constituted the real Board of Trustees. The third defendant is the Secretary of the plaintiff's Board of Trustees. The 5th defendant, who acted as Chairman of the plaintiff Trust, was looking after the day to day administration and was bound to account for the contributions of end of the year 2009, the plaintiffs came to know that the 5th defendant committed acts of fraud and misappropriated huge funds of the Trust. When the 5th defendant was questioned on 19.12.2009 he admitted the guilt and gave an undertaking in writing in his own Trust within ten months from that date. But he failed to pay that the fifth defendant is herewith produced. Hence the plaintiffs 2 to 5 and defendants 3 and 4 asked him to convene the meeting of the Board of Trustees. Further, it is https://hcservices.ecourts.gov.in/hcservices/ also learnt that the 5th defendant has raised loans on the security of the fixed deposit of the Trust made to comply the norms of the All India Council of Technical Education without consulting the Board of Trustees. Further, he seems to have forged the signatures of some of the Trustees for serving his ulterior designs. The 5th defendant instead of convening the meeting of the Board of Trustees as requested by the Trustees, all of a sudden sent a resignation letter dated 18.12.2010 to the Board of Trustees of the plaintiff Trust and requested to relieve him from the plaintiffs Trust accepting his mal-administration. The 5th defendant has not maintained proper accounts and has not applied before the Income tax authorities for necessary exemptions. XII The remaining Trustees in the circumstances convened an emergent meeting of the Board of Trustees on 26.12.2010 to discuss about the resignation of the 5th defendant. In the Board of Trustees meeting held on 26.12.2010, the Board unanimously accepted the resignation of the 5th defendant and 4th defendant was elected as Chairman of the plaintiff's Board of Trustees temporarily. The resignation letter dated 18.12.2010 of the 5th defendant received by post, office copy of notice dated 23.12.2010 sent to all Trustees about the Board of Trustees meeting, the minutes book containing the resolution of the Board of Trustees on 26.12.2010 are submitted herewith. The 5th defendant was duly discharged from the Board of Trustees in consonance with section 71 of the Indian Trust Act and since then the Trust is under the administration by the new Board. But the 5th defendant has not handed over the original records and failed to render accounts of the Trust. Hence copies of the relevant document are herewith produced. The plaintiffs reserves their right to take separate action against the fifth defendant for rendition of accounts and return of original documents and other records of the plaintiff Trust." Thus, in the plaint, the respondents/plaintiffs are trying to make out a case against the petitioner/5th defendant. Whether the statement made therein is true or not have to be decided in the full- fledged trial and the same cannot be decided at this juncture which is premature in nature. https://hcservices.ecourts.gov.in/hcservices/ 6 However, the learned Senior counsel for the petitioner, while taking me to cause of action prayer, has emphasized that whatever allegations made in paragraph 11 and 12 in the plaint which contains allegations against the petitioner/5th defendant that he misappropriated the amount has not been set out in the cause of action and hence the plaint has to be rejected. 7 Though cause of action do not set out the averments or allegations made in para 11 of the plaint, there are averments pertaining to the second limb of the prayer that has been sought for in the suit; viz., prayer of permanent injunction. A plaint could be rejected if there is no cause of action as envisaged under Order 7 Rule 11 C.P.C. In the case on hand, it is not an application that has been preferred by the petitioner under Order 7 Rule 11 C.P.C. The petitioner seeks to struck of the plaint by filing the revision petition. That apart, even in application under Order 7 Rule 11 C.P.C. to reject plaint, it can be done if there is no cause of action totally, and the plaint cannot be rejected if there is lack of cause of action. 8 As regards the jurisdiction issue, the same can be tested only at the time of trial or if an application is filed to frame an issue regarding jurisdiction, as "preliminary issue" as contemplated under Order 14 Rule (2) C.P.C. 9 The last ground that has been raised by the learned Senior counsel for the petitioner pertaining to the documents that have been filed by the respondents 2 to 5. Whether with those documents, the respondents 1 to 5 being the plaintiffs in the suit can establish their claim or not, cannot be decided in the present revision to struck of the plaint. The same has to be decided in the full-fledged trial as already stated and the present revision is only premature in nature. 10 The learned Senior counsel for the petitioner relied on the judgment of this Court reported in (2011)3 MLJ 21 (cited supra). It is a case where the revision has been filed against the order made under Order 7 Rule 11 C.P.C. In such circumstances, this Court has held that if the plaint does not disclose any cause of action for filing suit, the plaint is liable to be rejected. 11 There are two reasons to reject the contention raised by the learned Senior counsel for the petitioner in this regard. 12 Firstly, as stated already, the petitioner has not filed any application under Order 7 Rule 11 C.P.C. to reject the plaint. They have straightway approached this Court by filing revision to struck of the plaint. https://hcservices.ecourts.gov.in/hcservices/ 13 The second ground, as stated already, the plaint could be rejected totally if there is no cause of action and not if there is any lack of cause of action. Thus, I am of the considered view that said judgment may not be of any use to the petitioner. 14 In view of the above position, I am of the considered view that all the grounds raised by the learned Senior counsel for the petitioner to struck of the plaint are liable to be rejected. 15 Considering the above discussion made, I am of the considered view that the revision seeking to struck of the plaint does not require interference of this Court. 15 In fine, the Civil revision petition stands dismissed. However no order as to cost. Consequently, connected miscellaneous petition is also dismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar vaan To The Principal District Judge, Erode. 1 cc to Mr. D.Selvaraj, Advocate, Sr.No.45724 1 cc to Mr.D.C.Muthu santhan , Advocate, Sr.No.44567 CRP (PD) No.1830 of 2011 and M.P.No.1 of 2011 rsy(co) pmk.8.8.2011 https://hcservices.ecourts.gov.in/hcservices/