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2016 Supreme(Mad) 1564

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.R.SHIVAKUMAR, J.
B.S.Garg - Appellant
Vs.
Mrs.R.Meena Sundar - Respondent
C.R.P.(PD) Nos.3528 and 3529 of 2015 and M.P.Nos.1 of 2015
Decided on : 11-05-2016

Advocates Appeared:
For the Petitioner: Mr. S.R.Raghunathan in both CRPs
For the Respondents: Mr. V.Lakshminarayanan, Mr.P.Vasanthakumar

Headnote:

Tamil Nadu Court Fees and Suits Valuation Act, 1955 - Section 25(d) - Constitution of India,1950 -Article 227 - Civil Procedure Code, 1908 - Order VII Rule 11(b) - Relief of declaration that a sale deed - Respondent in civil revision petitions by name filed above said suit O.S. against revision petitioner and respondents 2 to 5 for a declaration declaring sale deed registered as document on file of Sub Registrar in respect of a vacant site bearing plot No.12(part), 13(part) and 14(part) bearing old door which was changed into door and new door High Road measuring an extent of sq.ft. to be sham and nominal and null and void and not binding on him and for a consequential permanent injunction restraining respondents from alienating or encumbering the same to third parties or putting up any construction over same - Held, Suit for declaration that sale deed executed by revision petitioner/first defendant in favor of respondents 2 to 5/defendants 2 to 5 is sham and nominal null and void and not binding on her and for a permanent injunction restraining defendants 2 to 5 from alienating or encumbering suit property and from putting up any construction in suit property without filing a suit for specific performance and after having failed to obtain leave under Order II Rule 2 CPC in the previous suit will show that it is a glaring example of abuse of process of court besides attracting the bar provided under Order II Rule 2 CPC bringing plaint within the purview of Order VII Rule 11(d) of Civil Procedure Code - Hence this court comes to conclusion that learned trial Judge committed an error in exercise of jurisdiction by holding that plaint could not be rejected - Miscellaneous Petitions are Closed

ORDER :

C.R.P.(PD) No.3528/2015 and C.R.P.(PD) No.3529/2015 have been filed by B.S.Garg, the first defendant in O.S.No.9417/2011 on the file of the XVI Assistant Judge, City Civil Court, Chennai challenging the common order and final orders of the said court dated 16.06.2015 made in I.A.Nos.12876/2012 and 12877/2012 in the said suit.

2. Notice before admission was issued and the respondents have entered appearance through counsel. The arguments advanced by Mr.S.R.Raghunathan, learned counsel for the petitioner in both the revisions, by Mr.V.Lakshminarayanan, learned counsel for the first respondent and by Mr.P.Vasanthakumar, learned counsel for the respondents 2 to 5 in both the civil revision petitions were heard. The certified copy of the common order and certified copies of the final orders passed in I.A.No.12876/2012 and 12877/2012 in O.S.No.9417/2011 on the file of the XVI Assistant Judge, City Civil Court, Chennai and copies of the other documents produced in the form of typed set of papers and also the grounds of revision were perused.

3. The first respondent in the civil revision petitions by name Mrs. R.Meena Sundar filed the above said suit O.S.No.9417/2011 against the revision petitioner and respondents 2 to 5 for a declaration declaring the sale deed dated 01.07.2011 registered as document No.2286/2011 on the file of the Sub Registrar, Royapuram in respect of a vacant site bearing plot No.12(part), 13(part) and 14(part) bearing old door No.349, which was changed into door No.118 and new door No.385, Tiruvottiyur High Road, Tondiarpet, Chennai 600 081 measuring an extent of 4713 sq.ft. to be sham and nominal and null and void and not binding on him, and for a consequential permanent injunction restraining the respondents 2 to 5 from alienating or encumbering the same to third parties or putting up any construction over the same.

4. The revision petitioner (first defendant in the said suit) filed two applications, namely I.A.No.12876/2012 and 12877/2012, the first one under Section 5 and 12 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and Order VII Rule 11(b) of the Code of Civil Procedure, 1908 for determining the correct court fee payable, keeping in mind the valuation of the sale deed dated 01.07.2011 bearing document No.2286/2011 and the second one for rejection of the plaint under Order VII Rule 11 CPC, 1908. The said applications were resisted by the first respondent/plaintiff by filing a common counter. The learned trial Judge, after hearing both sides, by a common order dated 16.06.2015 dismissed both the applications without cost. The said common order and the final orders passed in the above said interlocutory applications are challenged in the present civil revision petitions preferred under Article 227 of the Constitution of India.

5. The first respondent/plaintiff has filed the above said suit O.S.No.9417/2011 for the relief of declaration that a sale deed dated 01.07.2011 executed by the revision petitioner/first defendant and registered as Document No.2286/2011 on the file of SRO, Royapuram in respect of old door No.118, new door No.285, Tiruvottiyur High Road, Tondiarpet, Chennai 600 081, to be sham and nominal, null and void and not binding on the plaintiff and for a consequential permanent injunction restraining the respondents 2 to 5/defendants 2 to 5 from alienating and encumbering the said property to a third party and from putting up any construction over the same. The said prayer was made based on her contention that in March 2010, the revision petitioner/first defendant entered into an oral agreement with her for the sale of Plot Nos.6 to 14 along with a 20' common passage comprised in S.Nos.4310/36, 4310/1(part), C.A.No.394/97, R.S.No.4310/100 bearing door No.118, Tiruvottiyur High Road, Chennai -600 081 totally measuring 11 grounds 2123 sq.ft. for a sale consideration at the rate of Rs.50,00,000/-per ground; that the understanding was that sale deeds should be executed either in fav












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