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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
M. Jaffer Khan - Petitioner
Versus
Bharathi Makkal Nala Sangam, Rep. by its Secretary C. Parthasarathy, Kolathur, Chennai & Others - Respondents
C.R.P. (NPD) No. 1263 of 2012 & M.P. No. 1 of 2012
Decided On : 07-09-2017
Civil Procedure Code,1908 - Order 1,7 - Rule 8 and 11 - Suit for permanent injunction - Sale deed - Defendant filed under Order 7 Rule 11 of CPC seeking to reject plaint alleging that he was absolute owner of property bearing Door Jambulingam Main Road Annai Anjugam Nagar Chennai having purchased same under a registered sale deed and he was in possession and enjoyment of same - Defendant originally was running mechanic shop at Jambulingam Main Road under one - Since there was dispute between said and defendant defendant had shifted his workshop to suit property by paying rent to one E.P Roosevelt - It is further alleged that when was trying to interfere with peaceful possession and enjoyment of suit property defendant and E.P Roosevelt filed before Assistant Judge City Civil Court Chennai for permanent injunction restraining defendant therein from interfering with peaceful possession and enjoyment of suit property by defendant - After contest suit was decreed - Since no appeal was filed decree and judgment has become final - Thereafter exercised their influence and caused defendant to interfere with defendants rights in enjoying suit property - Immediately defendant and E.P Roosevelt filed on file of Assistant Judge City Civil Court Chennai for permanent injunction restraining defendant from interfering with peaceful possession and enjoyment of suit property and said suit was decreed ex parte - Subsequently defendant filed application to set aside ex parte decree but no stay was sought by defendant and decree was in full force - Whether power to reject plaint under Order 7 Rule 11 C.P.C - Can be exercised even after framing of issues and when matter is posted for evidence - Whether it is a registered association - Whether cause of action alleged in plaint was true or incorrect and that petition of defendant was devoid of merits - Whether trial Court was right in dismissing filed by defendant - Whether any such permission was obtained - Whether cause of action alleged in plaint was true or incorrect - Held, Plaintiff has not placed on record any resolution passed by company authorising to institute suit - Did not come forward to make a statement that he was in a position to depose to facts of case - In plaint signed by him he claims to be a principal officer and director but there is no evidence on record to indicate that he had authority to institute suit - Memorandum and articles of association of plaintiff company are also not placed on record - Even after suit was instituted by no resolution was passed by company ratifying this action - No such decision of board of directors is placed on record in present case - Plaintiff has examined - He has placed on record exhibit which is resolution of board of directors reappointing as director but this resolution does not empower as a director to institute present suit - Has stated that he was handling day-to-day management of plaintiff company including insurance part of it - He however does not state that was handling day-to-day management or was in charge of insurance claim - Court may stated that in context of Order 7 Rule 11 C.P.C a contention that once issues have been framed matter has necessarily to go to trial has been clearly rejected by this Court in v. Rajiv Gandhi as follows In substance argument is that Court must proceed with trial record evidence and only after trial - Is concluded that powers under Code of Civil Procedure for dealing with a defective petition which does not disclose cause of action should be exercised - With respect to counsel it is an argument which it is difficult to comprehend - Whole purpose of conferment of such powers is to be ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy time of Court - No prohibition on part of defendant to file petition under Order 7 Rule 11 of CPC - According to defendant plaintiff who is not a party to suit in has no locus stand to question validity of decree passed in suit - There is some force in submission of defendant - Hence on that ground also plaint is liable to be rejected - As stated supra suit in plaintiff is not a party and relief was sought against defendant only - If plaintiff wants to question decree passed in it ought to have obtained leave first and then file suit - In case on hand without there being any leave granted to plaintiff by Court plaintiff has filed suit - Aforesaid observation of trial Court is not correct - It cannot be termed as a person and as such suit by a non-legal entity is not maintainable in law - Civil Revision Petition Allowed
JUDGMENT :
1. This Civil Revision Petition has been filed by the petitioner against the order dated 12.11.2011 passed in I.A.No.6129 of 2011 in O.S.No.4794 of 2010 on the file of the learned VIII Assistant Judge, City Civil Court, Chennai, dismissing the petition filed by the petitioner under Order 7, Rule 11 of CPC.
2. The 2nd defendant is the petitioner, 1st respondent is the plaintiff, 2nd respondent is the 1st defendant and the 3rd respondent is the 3rd defendant in the suit.
3. Reference to parties in this order will be according to their rank in the suit.
4. The plaintiff has filed the suit for declaration that the decree and judgment passed in O.S.No.1596 of 2008 by the learned V Assistant Judge, City Civil Court, Chennai dated 22.08.2008 as null and void and for permanent injunction restraining the 2nd defendant from executing E.P.No.991 of 2009 in O.S.No.1596 of 2008 and for costs.
5. The 2nd defendant filed I.A.No.6129 of 2011 under Order 7, Rule 11 of CPC seeking to reject the plaint alleging that he was the absolute owner of the property bearing Door No.13-A, Plot No.161-A, Jambulingam Main Road, Annai Anjugam Nagar, Chennai-82 having purchased the same under a registered sale deed dated 19.04.1995 and he was in possession and enjoyment of the same. The 2nd defendant originally was running mechanic shop at No.13, Plot No.161, Jambulingam Main Road under one Ayyanar. Since there was dispute between the said Ayyanar and the 2nd defendant, the 2nd defendant had shifted his workshop to the suit property by paying rent to one E.P. Roosevelt.
6. It is further alleged that when Ayyanar and Sanjivi Naidu was trying to interfere with the peaceful possession and enjoyment of the suit property, the 2nd defendant and E.P. Roosevelt filed O.S.No.1209 of 1990 before the learned III Assistant Judge, City Civil Court, Chennai for permanent injunction restraining defendant therein from interfering with the peaceful possession and enjoyment of the suit property by the 2nd defendant. After contest, the suit was decreed on 30.03.1992. Since no appeal was filed, the decree and judgment has become final. Thereafter, Ayyanar and Sanjivi Naidu exercised their influence and caused the 3rd defendant to interfere with the 2nd defendant's rights in enjoying the suit property. Immediately, the 2nd defendant and E.P. Roosevelt filed O.S.No.8095 of 1990 on the file of the learned IV Assistant Judge, City Civil Court, Chennai for permanent injunction restraining the 3rd defendant from interfering with the peaceful possession and enjoyment of the suit property and the said suit was decreed ex parte on 27.02.1991. Subsequently, 3rd defendant filed application to set aside the ex parte decree, but no stay was sought by the 3rd defendant and the decree was in full force.
7. Subsequently, the 3rd defendant was trying to interfere with the 2nd defendant's possession and the 2nd defendant immediately issued a telegram to the 3rd defendant stating that their action would amount to contempt of Court. Thereafter, the 3rd defendant laid a road in part of the suit property and the 2nd defendant filed contempt application against the 3rd defendant. Thereafter, the application filed by the 3rd defendant to set aside the ex parte decree was allowed and the 3rd defendant also filed the written statement, but did not participate in the proceedings and ultimately the suit was decreed on 04.07.2000.
8. It is alleged that the action of the 3rd defendant in laying road in part of the suit property despite orders of the Court was highly illegal. The suit property was the absolute property of the 2nd defendant. Even assuming for moment without admitting that the suit property forms part of unapproved layout, the 3rd defendant has no power under any Act to take possession of the property without resorting to legal procedure established under law and especially when the layout was formed long ago and the plots were sold immediately. If the 3rd defendant was having power to take
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