2018 Supreme(Mad) 4380

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.V. MURALIDARAN, J.
M. Meiyappan & Others - Petitioners
Versus
C. Mariappan & Others - Respondents
C.R.P. (MD)(PD) Nos. 2482, 2485 & 2486 of 2017 & C.M.P. (MD) Nos. 11719 to 11721 of 2017
Decided On : 21-08-2018

Headnote:

Civil Procedure Code,1908 - Orders 2,7 and 10 - Rules 11 and 2 - Transfer of Property Act,1881 - Section 53-A - Limitation Act, 1963 - Article 54 - Constitution Of India,1950 - Articles113,226 and 227 – Suit for partition – Suit for possession - Sale deed - Civil Revision Petitions encompass same Sale Agreement and relief sought, grounds of Revision and Defense are identical and that revision petitioners and suit properties involved are one and same this Court heard all above Civil Revision Petitions together and are hereby disposed by a Common Order as following defendants on file of learned Principal District Munsif Thanjavur are petitioners herein and by way of these Civil Revision Petitions seeking to struck down above suits filed by respondents/plaintiffs in as an abuse of process of court and law and barred by law - On perusal of case records it is seen that it is case of Respondents/ Plaintiffs that suit property belong to defendants by way of a partition deed through which suit property came to be allotted to defendants share during their minority represented through defendants mother Achi as Guardian - When Revision petitioners were minors suit property was leased out by their mother on behalf of Revision petitioners and later on behalf and representing Revision petitioners said agreed to sell suit property by an unregistered sale agreement fixing sale consideration at rate of per and totaling for towards suit property - Thereupon revision petitioners continues to be in possession and enjoyment of suit property till date - Whether above suits for specific performance based on an agreement of year is barred by limitation whether respondents have real Cause of action to their suits - Whether a real cause of action has been set out in plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC - Held, Question is whether a real cause of action has been set out in plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC - Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in plaint - It is settled law that in cases involving illusionary cause of action role of Court is to nip it in bud - It is not case of respondents that they have extended or renewed their agreement of sale in so far as maintainability of suit on ground of limitation - It would be useful to refer to a decision of Hon’ble Apex Court made in matter of Ores Pvt Ltd vs M/S Hede And Company reported in holding as following that Court are of view that respondent is right in contending that enforcement of negative covenants presupposes existence of a subsisting agreement - As noticed earlier law is well settled that renewal of an agreement or lease requires execution of a document in accordance with law evidencing renewal - Grant of renewal is also a fresh grant - In instant case appellant-plaintiff did exercise their option and claimed renewal - Respondents denied their right to claim renewal in express terms and also unequivocally stated that agreement did not stand renewed as contended by appellants - Having regard to these facts it must be that a cause of action accrued to appellant-plaintiff when their right of renewal was denied by respondents - This happened in December and therefore within three years from that date they ought to have taken appropriate proceedings to get their right of renewal declared and enforced by a court of law and/or to get a declaration that agreement stood renewed for a further period of years upon appellants exercising their option to claim renewal under original agreement - Appellants-plaintiffs have failed to do so - However plaint proceeds on assumption that original agreement stood renewed including negative covenants contained in clauses of original agreement which authorised only appellants to extract ore from mine with an obligation cast on respondents-defendants not to interfere with enjoyment of their rights under agreement - In facts of this case in suit prayer for injunction based on negative covenants could not be asked for unless it was first established that agreement continued to subsist - Use of words During subsistence of this agreement in clause and during pendency of this indenture in clause of agreement is significant - Court are therefore satisfied that Trial Court as well as High Court were justified in holding that plaint deserved to be rejected under Order VII Rule 11 CPC since suit appeared from statements in plaint to be barred by law of limitation - Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in plaint - Civil Revision Petitions Allowed