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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
K.MURALI SHANKAR, J.
S.Saravanan – Appellant
Versus
M.Dhanalakshmi – Respondent
C.R.P.(PD)(MD)No.721 of 2021 and CMP(MD) No.3909 of 2021 And Caveat No.372 of 2021
Decided on : 25-10-2021
Civil Procedure Code,1908 - Order 7 Rule 11 - Indian Limitation Act,1963 – Article 58,59 and 61 - Specific Relief Act – Section 34 – Property - Relief of declaration - Settlement deed - Consequential permanent injunction - Plaintiffs are the sisters and are daughters of one and that second defendant is wife, first defendant is son and third defendant is daughter of one, who is no more now, power agent said one - It is also not in dispute that said died on and that said one died - Plaintiffs have claimed relief of declaration that plaintiffs are absolute owners of suit properties and for consequential permanent injunction restraining defendants and their men from in any way interfering with plaintiffs' peaceful possession and enjoyment of suit property and for declaration that settlement deed two sale deeds and two sale agreements are null and void and not binding on plaintiffs and for permanent injunction restraining defendants and their men from in any way alienating or encumbering suit property in any manner to any person - Whether suit is barred under one or the other article contained in Schedule appended to Limitation Act – Held, court have noticed hereinbefore that defendant, inter alia, on plea of identification of suit land vis-a-vis deeds of sale, under which plaintiff has claimed his title, claimed possession - Defendant did not accept that plaintiff was in possession - An issue in this behalf is required to be framed and said question is required to be gone into - Limitation would not commence unless there has been a clear and unequivocal threat to right claimed by plaintiff - In a situation of this nature, in court opinion, application under Order 7 Rule 11(d) was not maintainable - Contentions raised by learned counsel for the respondent may have to be gone into at a proper stage - Viewing from any angle, contention of the defendants that suit is barred by limitation and as such, plaint is liable to be rejected cannot be gone into at this stage and is a matter for trial - Hence, this Court concludes that the decision of learned trial Judge in rejecting relief claimed by defendants cannot be found fault with and consequently, revision which is devoid of merits, is liable to be dismissed - In the result, Civil Revision Petition is dismissed - Consequently, connected Miscellaneous Petition is closed.
ORDER :
1. The Civil Revision Petition is directed against the order passed in unnumbered I.A.No..... of 2020 in O.S.No.217 of 2019, dated 05.02.2021 on the file of the I Additional District Court, Madurai, rejecting the petition filed for rejection of plaint, under Order 7 Rule 11 of the code of Civil Procedure.
2. The revision petitioners are the defendants and the respondents/plaintiffs have laid the above suit in O.S.No.217 /2019, claiming the reliefs of declaration and for permanent injunction. The revision petitioners/defendants have filed their written statement and are contesting the suit. Pending trial, the defendants have filed a petition under Order 7 Rule 11(d) CPC to reject the plaint. The learned trial Judge, upon hearing the learned counsel for the revision petitioners/defendants, has passed the impugned order, dated 05.02.2021, rejecting the petition. Aggrieved by the order of rejection, the defendants have come forward with the present revision.
3. It is evident from the records that the learned trial Judge, after filing the above petition under Order 7 Rule 11 CPC, without taking the petition on file and without hearing the plaintiffs side, has rejected the petition. No doubt, the impugned order does not affect the plaintiffs in any way. But this Court is constrained to say that when the parties to the lis are very much before the Court, in an application filed by any party, generally the Court is expected to hear the other side and for that purpose, the Court has to necessarily take the petition on file.
4. No doubt, the above rule or principle cannot be applied universally. In cases, where the petition is being filed abusing the process of the Court or in the petitions filed seeking administrative orders or directions for enforcement or implementing any judicial order, there is no need or necessity to hear the other side and the Court can very well reject the application at the first instance in the first category of cases and the Court can very well allow the applications without hearing the other side in the second category of cases.
5. In the case on hand, as already pointed out, the application was filed under Order 7 Rule 11 CPC and the same does not fall in the above category of cases. But at the same time, simply because, the petition was rejected without hearing the other side, the impugned order cannot be considered as an illegal order and the same can only be termed as improper.
6. Whatever it is, now coming to the merits of the case, admittedly, the plaintiffs are the sisters and are the daughters of one A.Peer Fathima, and that the second defendant is the wife, first defendant is the son and third defendant is the daughter of one K.Selvaraj, who is no more now, power agent of A.Peer Fathima. It is also not in dispute that the said K.Selvaraj died on 26.09.2009 and that the said A.Peer Fathima died on 25.04.2013. The plaintiffs have claimed the relief of declaration that the plaintiffs are the absolute owners of the suit properties and for consequential permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the suit property and for declaration that the settlement deed dated 27.04.2010, two sale deeds dated 08.01.2010 and two sale agreements dated 16.07.2007 and 08.08.2008 are null and void and not binding on the plaintiffs and for permanent injunction restraining the defendants and their men from in any way alienating or encumbering the suit property in any manner to any person.
7. Before entering into further discussion, it is necessary to refer the respective cases put forth by the parties, which are necessary for deciding the present revision:
Plaintiffs' case :
(a) The suit property and other properties were originally belonged to the plaintiffs' mother A.Peer Fathima and she divided the said land into se
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