IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2010 CORAM The Hon'ble Mr. Justice R.S.Ramanathan C.R.P.(P.D) Nos.1487 & 1488 of 2010 and M.P.No.1 of 2010 Kanniga ... Petitioner in both the C.R.Ps./ Defendant Vs. S.Shankar ... Respondent inboth the C.R.Ps./ Plaintiff Prayer in C.R.P.No.1487 of 2010: Civil Revision Petition filed under Article 227 of the Constitution of India as against the order dated 12.03.2010 passed in I.A.No.5137 of 2010 in O.S.NO.391 of 2010 on the file of the Learned VIII Assistant Judge, City Civil Court at Chennai. Prayer in C.R.P.No.1487 of 2010: Civil Revision Petition filed under Article 227 of the Constitution of India as against the plaint in O.S.NO.391 of 2010 pending on the file of the Learned VIII Assistant Judge, City Civil Court at Chennai and to strike off the same from the file of the City Civil Court by setting aside the entire proceedings of the Learned Judge in the suit as nullity. For Petitioner : Mr.K.M.Vijayan (Senior Counsel) for Mr.R.Manickavel For Respondent :Mr. T.R.Rajagopalan (Senior Counsel) for Mr. A.Anbarasan COMMON ORDER The defendant in O.S.No.391 of 2010 on the file of the Learned VIIIth Assistant Judge City Civil Court, Chennai, is the revision petitioner in C.R.P.No.1488 of 2010. The defendant/respondent in I.A.No.5137 of 2010 in O.S.No.391 of 2010 on the file of the VIIIth Assistant Judge City Civil Court, Chennai, is the revision petitioner in C.R.P.No.1487 of 2010. https://hcservices.ecourts.gov.in/hcservices/ 2. The revision in C.R.P. No.1488 of 2010 has been filed under Article 227 of the Constitution of India to strike off the plaint in O.S.No.391 of 2010 pending on the file of the Learned VIIIth Assistant Judge, City Civil Court, Chennai and the revision in C.R.P.No.1487 of 2010 has been filed, as against the order passed in I.A.No.5137 of 2010 in O.S.No.391 of 2010, appointing an Advocate Commissioner to inspect the suit property. In the plaint in O.S.No.391 of 2010, the respondent/plaintiff stated that he has purchased the suit property under a registered sale deed dated 29.09.2006 from one Govindasamy, son of Murugan and as there was some correction in the sale deed, a rectification deed was also executed and registered on 10.01.2007 and from the date of the original sale deed, he is in possession of the suit property and he had applied for plan sanction for purpose of putting up construction and the plan was also sanctioned on 29.10.2008 and now, he has taken steps to put up construction in the suit property and the defendant/revision petitioner, who is the owner of the adjacent plot bearing plot No.17 attempts to encroach and trespass into the plaintiff's property and therefore, he filed a suit for injunction, restraining the revision petitioner from interfering with his peaceful possession and enjoyment of the property. The Schedule of property mentioned in the suit is a plot bearing Nos.17-A and 18-A, Sri Nagar Colony, Annex 1st Street, Kolathur, Chennai – 99, comprised in Survey No.58/4 with specific boundaries ad measuring 4,785 sq.ft. This plaint is sought to be strike off by the revision petitioner for the following reasons:- 3. It is submitted by Mr.K.M.Vijayan, the learned Senior Counsel appearing for the revision petitioner that admittedly, the property in Survey No.58/4 in Kolathur, Chennai – 99, was originally belonged to one Duraisamy Naidu, and the total extent of the property was 1 acre 40 cents and under a deed of settlement dated 27.08.1960, the said Duraisamy Naidu, settled the total extent in favour of his grand children, through his son Subramani Naidu and daughter-in-law Jayammal, giving his son and daughter- in-law, life estate over the property to be enjoyed by them for their lifetime, without any power of alienation. Though his son Subramani Naidu, was given only life estate, he has sold an extent of 31 cents out of the total extent of 1 acre 40 cents in favour of Arumaga Naickar and Sundari Ammal, by two different sale deeds dated 11.08.1967 and 12.09.1967. Thereafter, the said Sundari Ammal, has sold 31 cents to one Govindasamy , the vendor of the respondent herein under the sale deed dated 28.05.1981. 4. According to the learned Senior Counsel, the said Govindasamy, was in possession and enjoyment of the suit property and he had also no title to the same as the predecessor in title https://hcservices.ecourts.gov.in/hcservices/ viz., D.Subramania Naidu, was only given life estate and he died on 01.02.1975 leaving behind his children, who are in law are the vested remainders. Therefore, the said Sundari Ammal, who purchased the property from Subramani Naidu, did not get any title to the same and therefore, Govindasamy, the vendor of the respondent herein, will not also get any title and he is in possession and enjoyment of the property. Therefore, the Learned Senior Counsel further submitted that the said Govindasamy, vendor of the respondent herein, on the basis of the sale deed in his favour by Sundari Ammal, has filed a suit in O.S.No.9588 on the file of the 14th Assistant Judge City Civil Court, Chennai, against the wife and children of Subramani Naidu, for an injunction, stating that he is the owner of the property having purchased the same from Sundari Ammal, who in turn purchased the same from Subramani Naidu. The said suit was dismissed by the Learned Judge, holding that the plaintiff viz., Govindasamy, was not in possession of the property and the suit was also not maintainable, as he has not prayed for any declaration, as his title was disputed by the defendant. Thereafter, the said Govindasamy, has filed an appeal suit in A.S.No.178 of 1994 on the file of the Learned IVth Assistant Judge City Civil Court, Chennai, and the said appeal was dismissed and being aggrieved by the same, he has preferred Second Appeal in S.A.No.1022 of 1996 before this Court and the same was also dismissed by this Court, confirming the judgment and decree of the Trial Court. Therefore, the learned Senior Counsel contended that by virtue of the decree passed in O.S.No.9580 of 1988, the said Govindasamy, was not in possession of the suit property and the respondent herein, who purchased the portion of the property, out of the total extent of 31 cents cannot claim to be in possession of the property and therefore, the present suit is a clear abuse of the process of the Court and has to be struck off from the file. The learned Senior Counsel Mr. K.Vijayan, further submitted that the said Govindasamy, also filed a suit in O.S.No.2562 of 2003 on the file of the Learned VIth Assistant Judge City Civil Court, Chennai, against one Mahesh and Chinraj, who are the sons of defendants 8 and 9 in O.S.No.9580 of 1988, suppressing the earlier suit in O.S.No.9580 of 1988 and he obtained an order of injunction and later, that was vacated and the suit was also ultimately dismissed. Therefore, it was submitted by the learned Senior Counsel that having failed in both the attempts, the said Govindasamy, by creating a sale deed in favour of the respondent herein and hence, the respondent also cannot get any title better than that of Govindasamy, and already the Courts have held that the said Govindasamy, was not in possession and enjoyment of the suit property and hence, the present suit for injunction is a clear abuse of the process of the law and is liable to be dismissed. The learned Senior Counsel further submitted that as per the settlement deed dated 27.08.1960 executed by Duraisamy Naidu, https://hcservices.ecourts.gov.in/hcservices/ the children of Subramani Naidu and Jayaamaal, who are the vested remainders, entered into a partition deed dated 29.04.1983, and as per the said partition deed, each of the sharers were given 28 cents and one of the daughters of Subramani Naidu, by name Selvi, sold an extent of 2,400/-sq.ft in plot bearing No.17 to the revision petitioner, through her power agent under a registered sale deed dated 6.07.1983 and from the date of such sale deed, the revision petitioner is in possession and enjoyment of the same. 5. The learned Senior Counsel further submitted that there is no plot bearing Nos.17-A and 18-A, as alleged by the respondent in the plaint in O.S.No.391 of 2010 and such plot numbers have been created only for the purpose of claiming the right over the property and therefore, the present suit filed by the respondent herein amounts to re-litigation, which has to be curtailed at the earliest point of time and therefore, the suit filed by the respondent in O.S.No.391 of 2010 has to be struck of from the file. In support of his contention the learned Senior Counsel relied upon the judgments reported in 1998 (3) SCC 573 in (K.K.Modi Vs. K.N.Modi and others), 1994 (1) SCC 1 in (S.P. Chengalvaraya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by LRS and others), 2003 (3) M.L.J. 566 in (K.K.Swaminathan Vs. Srinivasagam), C.D.J. 2005 MHC 1316 in (The Member Concern Department of Post Vs. Annapoorni & Others), 2009 (2) C.T.C. 57 in (Dindigul Pettai Sathangudi Shatriya Nagar Uravinmurai Vs. Selvaraj) and 2009 (5) C.T.C. 710 in ( Tamil Nadu Handloom Weavers' Co-operative Society Vs. S.R.Ejaz). 6. Mr.T.R.Rajagopalan, the learned Senior Counsel for the respondent raised preliminary objection about the maintainability by the revision petitioner stating that even assuming the contentions raised by the Learned Senior Counsel for the revision petitioner are true, it is a matter of evidence and the revision petitioner could have filed an application under Order 7, Rule 11 CPC and could have rejected the plaint, but, without resorting to alternate remedy which is available under the provisions of CPC, it is not open to the revision petitioner to approach this Court under Article 227 of the Constitution of India and therefore, the revision is not maintainable and in support of his contention, the learned Senior Counsel appearing for the respondent had placed reliance upon the judgment rendered by me reported in 2010 (6) M.L.J. 172, wherein, I have held that where an effective and efficacious alternative remedy of appeal under Order 43, Rule 1 CPC, 1908 is available, the Civil Revision Petition invoking the extraordinary jurisdiction of the High Court under Article 227 of the Constitution of India is not tenable and, therefore, he submitted that the present revision is not maintainable. The learned Senior Counsel has further submitted that it is not correct to state that the very same property, which is the subject matter https://hcservices.ecourts.gov.in/hcservices/ in an earlier two suits is involved in the present suit and according to him Survey No.58/4 is having an extent of 1 acre 40 cents and the respondent/plaintiff has purchased an extent of 4,785/- sq.ft as specified boundaries with specified measurements and in O.S.No.9580 of 1988, the suit property was 16 cents and 15 cents with specific Survey No.58/4 and therefore, the identity of the property is also not the same and all these matters can be agitated only during trial and hence, the revision filed by the revision petitioner is not maintainable. 7. Heard both the Counsel. 8. It is seen from the typed set of papers that Duraisamy Naidu, was the owner of 1 acre 40 cents in Survey No.58/4 and he had son by name Subramani Naidu and daughter-in-law viz., Jayaammal, and the said Duraisamy Naidu, executed a settlement deed dated 27.08.1960, giving life estate to his son Subramani Naidu and daughter-in-law Jayaammal, and vested remainders to the children born to them. Eventhough, life estate was given to Subramani Naidu and his wife, he sold 31 cents in favour of Arumuganaicker and Sudari Ammal, under registered two sale deeds dated 11.08.1967 and 12.09.1967 and thereafter, Sundari Ammal, sold 31 cents to Govindasamy, who is the vendor of the respondent herein. In respect of 31 cents, purchased by Govindasamy, he filed suits in O.S.No.9580 of 1988 and O.S.No.2562 of 2003 referred to above. From the said Govindasamy, the respondent herein has purchased the lesser extent as stated above and on the basis of the same, he has filed the present suit. Therefore, there is no dispute regarding the identity or similarity in respect of the property involved in all the three suits referred to above. Therefore, I am of the opinion that the property involved in O.S.No.9580 of 1988 and O.S.No.2562 of 2003 are one and the same property and out of the total extent of those properties, lesser extent is the subject matter in the suit O.S.No.3391 of 2010. It is also not disputed that the said Govindasamy, filed suit in O.S.No.9580 of 1988 for injunction, in respect of the total extent of 31 cents against the legal representatives of Subramani Naidu, alleging that he is in possession and enjoyment of the said extent and a specific finding was given by the Court that he was not in possession of the property and the suit for injunction was dismissed. Thereafter, the said Govindasamy, also filed a suit in O.S.No.2562 of 2003, against the sons of D-8 and D-9 in O.S.No.9580 of 1988, in respect of the very same extent viz., 31 cents and in that suit also, interim injunction originally granted was vacated and the suit was ultimately dismissed. The dismissal of the suit in O.S.No.9580 of 1988 was also confirmed by this Court in Second Appeal No.1022 of 1996. Therefore, it is proved that by virtue of the decree passed in O.S.No.9580 of 1988 that https://hcservices.ecourts.gov.in/hcservices/ Govindasamy, was not in possession of the total extent of 31 cents of property and hence, the present respondent, who claimed to have purchased the lesser extent, out of the 31 cents, could not be in possession of the property. 9. Further, as contented by Mr.K.M.Vijayan, the learned Senior Counsel appearing for the revision petitoner, the present suit filed by the respondent amounts to re-litigation and it has been condemned by this Court and the Hon'ble Supreme Court in various judgments and the Courts have held that it amounts to abuse of the process of the Court and such activities must be nipped at the bud. In the judgment reported in 1998 (3) SCC 573 in (K.K.Modi Vs. K.N.Modi and others), the Hon'ble Supreme Court has dealt with the abuse of the process of the Court which is as follows:- " Under Order 6, Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Power under Clause ( c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated , it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court, especially, where the proceedings are absolutely groundless. The Court, then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being waster. Undoubtedly, it is a matter of the Court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding. " https://hcservices.ecourts.gov.in/hcservices/ Further, in the judgment reported in 2003 (3) M.L.J. 566 in (K.K.Swaminathan Vs. Srinivasagam), this Court has dealt with re- litigation, which is held as follows:- " One of the example as an abuse of the process of the Court is re-litigation. It is an abuse of the process of the Court contrary to justice and public policy for a party to re-litigater the same issue which has alreddy been tried and decided earlier againt hi,. But if the same issue is sought to be re-agitated , it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court, especially, where the proceedings are absolutely groundless. The Court, then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being waster. Undoubtedly, it is a matter of the Court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding. Be it under Article 227 of the Constitution of India or under Section 115, C.P.C., the High Court has general supervisory jurisdiction. That supervisory revisional jurisdiction of the High Court is the residuary jurisdiction conferred n the High Court. Thus, exercising the supervisory jurisdiction conferred on the High Court under Section 115, C.P.C., it is just and necessary that the pliant in O.S.NO.2473 of 1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to direct the revision petitioner to pay the costs of the suit to the respondent." In the judgment in 2009 (5) C.T.C. 710 in ( Tamil Nadu Handloom Weavers' Co-operative Society Vs. S.R.Ejaz), the Learned Judge of this Court, after quoting various Supreme Court cases, held that the availability of alternative remedy by filing an application under Order 7 Rule 11 is no bar to invoke Article 227 of the Constitution of India, when the abuse of the process of the Court is patent and held as follows:- https://hcservices.ecourts.gov.in/hcservices/ " There is no dispute with respect to the legal position that before approaching the High Court in exercise of jurisdiction under Article 227 of the Constitution of India, the parties should avail the alternative remedy. However, in a given case, if the attempt of a party to the litigation was to take undue advantage and the Suit was a clear abuse of process of law and that too, in a case in which the very Suit itself was filed only to circumvent the order passed the Supreme Court, this Court was not expected to be a mute spectator without taking steps to correct the jurisdictional error. The remedy as provided under Order 7, Rule 11 CPC is an effective remedy to axe the Civil Suit at the threshold in case it satisfied the ingredients of the said provision. The Trial Court was given exclusive jurisdiction to decide the fate of a litigation in its initial stage itself. Therefore, the Trial Court should be apprised of the inherent defects in the Plaint and on such appraisal, the Trial Court was obliged to consider the maintainability of the Suit. It is true that the jurisdiction of the Trial Court cannot be bypassed in a routine manner. Normally, the parties should be directed to pursue the statutory remedy available to them before availing the Constitutional remedy. However, in extraordinary circumstances, when it was demonstrated that there was flagrant violation of the principles of law, or abuse of process of Court or the Lower Court was accused of dereliction of duty of grave nature, the parties would be entitled to invoke the jurisdiction under Article 227 of the Constitution of India. Because of clever drafting, at times, it would be difficult for the Trial Court to find out the inherent defects in the Suit. The provisions as contained in Order 7, Rule 11 CPC was enacted to find out such defects though at a later stage. The Trial Court is within its powers to exercise the jurisdiction under Order 7, Rule 11, CPC at any point of time. Though by-passing the alternative remedy should be in exceptional circumstances only, it cannot be said that the High Court has to maintain silence at all point of time even when it was demonstrated that the Trial Court has committed serious illegality and its order had the effect of flouting the order passed by the Supreme Court. " https://hcservices.ecourts.gov.in/hcservices/ Further, in the judgment reported in 2009 (2) C.T.C. 57 in (Dindigul Pettai Sathangudi Shatriya Nagar Uravinmurai Vs. Selvaraj) the Learned Judge of this Court relied upon the judgment of the Hon'ble Supreme Court rendered in (Maria Soosai and another Vs. Esakkiammal, 1999 (1) LW 727 and also the judgment reported in 2001 (1) LW 202 in the matter of (Senni @ Sundarammal Vs. Ramasamy Poosari and others) and held that if a party has initiated vexatious and frivolous litigation in order to harass the other party, the Court can nip the attempt at the bud itself, irrespective of the stage of such proceedings. Further in the case of (Maria Soosai and another Vs. Esakkiammal, 1999 (1) LW 727 , the Hon'ble Supreme Court has held as follows:- " The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material. ... Frivolous or vexatious proceedings may also amount to an abuse of the process of Court, especially where the proceedings are absolutely groundless. The Court, then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being waster. Undoubtedly, it is a matter of the Courts' discretion whether such proceedings should be stopped or not..." 10. Therefore, from the above judgments, it has been made clear that the Court should not be used to entertain vexatious suit and it amounts to an abuse of process of law and such proceedings must be stopped at the initial stage. As stated supra, in this case, in respect of the larger extent, the respondent's vendor viz., Govindasamy, has filed two suits seeking for injunction and lost in both the suits and therefore, the respondent claiming under him cannot claim to be in possession of the suit property, as he is bound by the judgments rendered in the earlier two suits. Therefore, the suit filed by the respondent is a clear abuse of process of law. 11. It is true that the judgment reported in 2010 (6) M.L.J. 172 (supra) I have held that invocation of extraordinary jurisdiction under Article 226 of the Constitution of India is not https://hcservices.ecourts.gov.in/hcservices/ tenable when a efficacious alternate remedy is available in that case against the order of temporary injunction granted by the Lower Court without filing an appeal under Order 43, Rule 1 CPC, 1908. In that case against the order of temporary injunction, revision was filed under Article 227 of the Constitution of India and in that context, relying upon the various Supreme Court judgments and other judgments, I have held that when an efficacious alternative remedy is available, Article 227 of the Constitution of India cannot be invoked. But the present case is entirely different and as stated supra, having lost in two suits, the respondent's vendor sold the property to the respondent herein and therefore, the respondent cannot claim to be in possession of the property and hence, the suit seeking