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High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
Kolli Venkata Mohan Rao & Another
Versus
J.M. Patricia & Others
C.R.P.(PD).No. 16 of 2014 & M.P. No. 1 of 2014
Decided on: 27-11-2014
Limitation Act - Section 14 - Tamil Nadu Courts Fees and Suits Valuation Act - Section 7 – Civil Procedure Code - Order 7 - Rule 11 - Possession of schedule mentioned property - Consequential mandatory injunction - Power of Attorney - Respondents as plaintiffs filed said suit for declaration to declare alleged Power of Attorney executed by one Andrew of first defendant as null and void to declare sale deeds executed by first defendant in favor of second defendant as null and void to declare sale deeds executed by second defendant favor of defendants as null and void and for consequential mandatory injunction to direct defendants to vacate and handover possession of schedule mentioned property to plaintiff – Held, Above all in this case a thorough reading of plaint would show that plaintiffs have pleaded that impugned transactions were made by committing act of forgery and impersonation - According to them original owned namely Andrew died intestate and therefore alleged Power of Attorney said to have been executed by such dead person was a rank forgery and by impersonation - This allegation is certainly a very serious one and if same is proved all impugned transactions cannot be sustained and they become - Therefore plaintiffs who made such allegation should be given sufficient opportunity to prove same by conducting trial - Unless it is found that such allegation is baseless or false and without supporting evidence person against whom such serious allegation is made cannot be permitted to raise certain technical objections to escape from clutches of trial - It is well settled that if technicalities and substantial justice are pitted against each other only latter should be preferred - At this juncture observations made by Honorable Supreme Court in the case reported particular are relevant to be quoted - When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred and courts may in larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to parties and pass orders which will serve interest of justice best - These technical objections raised by defendants their application for rejection of plaint cannot be sustained at this stage especially when those objections are matters for trial - This Court is not to be mistaken as if it holds that no such technical objections can be raised application under Order 7 Rule 11 CPC - What it wants to emphasize is as to who can raise such technical objections - As stated supra a person against whom forgery and impersonation are pleaded is not certainly a person entitled to speak about technicalities and seek for a decision on such technical objections first at threshold without submitting himself to trial to disprove such serious allegations - Civil Revision Petition is dismissed
The defendants 3 and 4 in O.S.No.65 of 2012 on the file of the Principal District Court, Chengalpattu, are the petitioners herein. The respondents 1 and 2 herein are the plaintiffs and the respondents 3 and 4 herein are the defendants 1 and 2 therein. The petitioners are aggrieved by the order dated 27.11.2013 made in I.A.No.691 of 2012 in O.S.No.65 of 2012, in dismissing their application filed under Order 7 Rule 11 CPC for rejection of the plaint.
2. The respondents 1 and 2 as plaintiffs, filed the said suit in O.S.No.65 of 2012 for declaration to declare the alleged Power of Attorney, dated 18.8.2000 executed by one Andrew Xavir Packiam in favour of the first defendant as null and void; to declare the sale deeds, dated 15.9.2000 executed by the first defendant in favour of the second defendant as null and void; to declare the sale deeds dated 9.6.2003 executed by the second defendant in favour of the defendants 3 and 4 as null and void and for consequential mandatory injunction to direct the defendants to vacate and handover possession of the schedule mentioned property to the plaintiff.
3. Originally, the said suit was filed before this Court in C.S.No.215 of 2005, after obtaining leave granted on 3.3.2005 in Application No.1085 of 2005. The defendants 3 and 4, who are the petitioners herein, filed Application No.3531 of 2005 before this Court, for revocation of the leave, mainly on the ground that this Court is not having Ordinary Original Territorial Civil Jurisdiction over the suit property. The plaintiffs 2 and 3 also filed Application No.5370 of 2011 seeking permission to withdraw the plaint, with liberty to file separate suit before the competent Court. Both the said applications were heard together and by common order, dated 9.4.2012, this Court revoked the leave and directed the Registry to return the plaint under Order 7 Rule 10 CPC, so as to be presented in proper Court with proper Court fee applicable for suits to be filed in the said Court. The plaintiffs were also granted four weeks' time for presentation of the plaint before proper Court. The application filed in A.No.5370 of 2011 was however dismissed. Consequent upon such order passed by this Court, the respondents 1 and 2 herein presented the plaint before the Principal District Court, Chengalpattu on 24.4.2012 and the same was numbered as O.S.No.65 of 2012.
4. The case of the plaintiffs, as stated in their plaint, in nut-shell, is as follows:
The first plaintiff was married to one Maria Christina and the plaintiffs 2 and 3 are the daughters born to them. One Andrew Xavier Packiam was the brother of the said Maria Christina and was a bachelor, living with the plaintiffs. The said Andrew Xavier Packiam purchased Plot Nos.41, 42, 44 and 46 in S.Nos.220/5 and 220/87-A, measuring six grounds 948 Sq.Ft. in Madipakkam Village from one E.Adikesava Pillai, by sale deed dated 4.5.1975, registered as Document No.1965. The said Andrew Xavier Packiam died intestate on 22.8.1978, leaving behind his sister Maria Christina as his sole surviving legal heir, since his parents pre-deceased him. The said Maria Christina also fell ill and expired on 14.7.1987. During her lifetime, she, by virtue of being the only legal heir of the said Packiam, succeeded to all the properties left behind him. She died intestate, leaving the plaintiffs as the surviving legal heirs. Therefore, the plaintiffs succeeded to all the properties of Maria Christina. The second plaintiff, after her marriage, had been staying in Malaysia and the third plaintiff was staying in Ooty, after her marriage. Their respective husbands died on 3.3.2002 and 7.4.1998, and consequently, they returned to Madras and are staying with their father, namely the first plaintiff. The plaintiffs applied for Letters of Administration in respect of the property of the said Andrew Xavier Packiam. This Court, by order dated 15.7.2004 in O.P.No.269 of 2004, granted Letters of Administration in favour of the plaintiffs in res
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