The court can strike off a suit under Article 227 of the Constitution of India when it is a clear abuse of process and the facts are not controverted and admitted by the plaintiff.

JUDGMENT

(Prayer: Civil Revision Petition under Article 227 of the Constitution of India, to call for the records in O.S.No.87 of 2020 on the file of the learned Subordinate Judge, Kuzhithurai, strike the said O.S.No.87 of 2020.)

1. This Civil Revision Petition has been filed to strike off the plaint in O.S.No.87 of 2020 on the file of the learned Subordinate Judge, Kuzhithurai.

2. The parties are referred to as per the rank mentioned before the Court below.

3. The 1st respondent herein/plaintiff has filed a suit in O.S.No.87 of 2020 on the file of the learned Subordinate Judge, Kuzhithurai, seeking a decree for metes and bounds partition and separate possession of plaintiff's 1/2 + 1/5 + of 1/2 share in the plaint 'A' schedule property and declaring his title and possession over the plaint 'B' schedule property and consequently the defendants 5 to 10, their men, servants and agents be restrained by a decree of permanent injunction from trespassing into the schedule property and from disturbing the peaceful possession and enjoyment of the plaintiff over the same and from creating any documents in respect of the same.

4. Heard on either side. Perused the material documents available on record.

5. Initially, 1st respondent herein/plaintiff has filed a suit in O.S.No.87 of 2020 for partition against the defendant Nos.1 to 10.

6. The revision petitioners herein/D-5 to D-10 have filed this Civil Revision Petition to strike off the plaint on the following three grounds:

(i) an abuse of process of Court – Since the right of the suit property was already decided in O.S.No.357 of 1996. In E.P.No.50 of 2010 in O.S.No.357 of 1996 the rights of the parties were decided and settled which was confirmed by this Court in C.R.P.(MD)No.976 of 2013.

(ii). In O.S.No.300 of 1985, the title is decided in favour of one Gopi (Husband of the 1st respondent/plaintiff) against this plaintiff. So, the suit in O.S.No.87 of 2020 is a re-litigation and the same is not maintainable.

(iii). Willful suppression of suits in O.S. Nos.357 of 1996 and 300 of 1985 and also E.P. Proceedings.

7. The suit in O.S.No.300 of 1985 was filed by Gopi against this 1st respondent/plaintiff and one Soman for declaration and permanent injunction for the properties in S.Nos.74/2 & 74/10. In this case, the present plaintiff was not appeared before the Court below and set exparte. So, exparte decree was passed. Since she has not preferred any appeal against the exparte order the decree became final.

8. The 1st respondent/plaintiff has stated that no summon was served to her in O.S.No.300 of 1985. So, she has no knowledge about the decree. But, she was examined as P.W.1 and stated in her evidence that in I.O.P.No.9 of 1992(which later on allowed and suit was numbered as O.S.No.357 of 1996) admitted that her husband had filed the suit in O.S.No.300 of 1985 and she has not conducted the said suit in O.S.No.300 of 1985. The evidence was recorded in the year 1994. Even, then she has not taken any steps to enquire the stage of the suit and decree. It is purely laches on the part of plaintiff.

9. Further, she had filed the suit in O.S.No.357 of 1996 for maintenance as guardian for her four children against her husband Gopi. The suit was decreed and in decree, the maintenance amount has to be realised from the assets of her husband.

10. As per the decree, E.P. was filed to sell the property. The property contained in the E.P. petition and the present suit are same. That property also attached in I.A.No.1094 of 1992 in I.O.P.No.8 of 1992.

11. If, really the plaintiff has any right in the properties, she can claim in O.S.No.357 of 1996. As the properties of her husband Gopi, the attachment was made with the knowledge of present plaintiff. But, subsequently, suit was dismissed for default.

12. In E.P.No.50 of 2010 the present Revision petitioner and another have filed an application in E.A.No.215 of 2010 for declaring the E.P. properties were already sold and there was no existing attachment in