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MADRAS HIGH COURT
P.R. Shivakumar, J.
G. Subramani —Petitioner
versus
I.V. Rajasekaran —Respondent
C.R.P. (PD) (MD) No. 945 of 2013 and M.P. (MD) No. 1 of 2013
Decided on 20.6.2013
Counsel for the Parties:
For the Petitioner:K.S. Sankhar Murali, Advocate.
For the Respondent No.1:A. Edwin Prabakar, Advocate.
IMPORTANT POINT
Plaint cannot be rejected based on defence statement of defendant made in written statement.
Headnote:(i) Civil Procedure Code, 1908—Order 7 Rule 11—Rejection of plaint—Suit for dissolution of partnership , rendition of accounts and equal distribution of assets of partnership—A plaint can be rejected based on pleadings made in plaint and documents produced along with plaint—A plaint cannot be rejected based on defence statement of defendant made in written statement or any averment made in affidavit filed in support of application filed under Order 7 Rule 11 of CPC—Question of bar of res judicata shall not be ground on which a plaint can be rejected—Civil Revision Petition dismissed. (Paras 11 and 12)
(ii) Civil Procedure Code, 1908—Order 7 Rule 11 read with Section 11—Rejection of plaint—Bar of res judicata—A question which has been substantially and directly raised as an issue in a previously decided suit, shall not be tried by Court dealing with subsequent suit—Said provision can be interpreted to mean that such suit can be dismissed on the ground of bar of res judicata and it cannot be stretched too much to say that bar of res judicata shall be ground for rejection of plaint—Question of res judicata shall be a mixed question of law and fact. (Para 11)
Result: Civil Revision Petition dismissed.
P.R. Shivakumar, J.—The arguments advanced by Mr. K.S. Sankhar Murali, learned counsel for the petitioner and by Mr. A. Edwin Prabakar, learned counsel for the first respondent are heard.
2. The first defendant in the original suit in O.S. No. 81 of 2011 is the petitioner in the Civil Revision Petition. The suit was filed by the first respondent herein for the following relief’s
“(a) Dissolution of partnership;
(b) Rendition of accounts; and
(c) Equal distribution of the assets of the partnership.”
All those prayers have been made based on another prayer that a deed of retirement from partnership dated 19.5.2010 was null and void and that the said document should be declared null and void of course, while framing the suit, the prayer for the other relief’s had been placed above the prayer for the relief of declaration of the deed of retirement to be null and void. Such a defect shall be only in the form and it cannot be stated to be a material defect to assume that the earlier prayers were not based on the subsequent prayer.
3. The first defendant, viz., the petitioner in the Civil Revision.
Petition, after entering appearance and filing a written statement in the suit in O.S.No.81 of 2011, chose to file an Interlocutory Application in I.A.No.l05 of 2012 under Order 7 Rule 11 of the Code of Civil Procedure for the rejection of the plaint on the following grounds:
“(a) The plaint does not disclose a cause of action;
(b) The suit is barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988;
(c) The plaint is liable to be rejected on the ground of suppression of material fact and abuse of process of Court insofar as the first respondent/plaintiff had chosen to deny the execution of a document executed by him and receipt of a huge amount viz., Rs. 2,30,00,000 (Rupees Two Crores and Thirty Lakhs only) for his retirement from the partnership.”
4. The learned trial Judge, after hearing, opined that a plea made in the plaint to the effect that some of the properties purchased in the name of one Meenakshi, who was not a partner at the relevant point of time, were purchased out of the partnership assets and hence, the property should also be construed to be a property of the partnership firm, was hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988. However, taking into account the fact that the said plea of the first respondent/plaintiff was not the ground on which the main relief’s in the suit had been sought for and the said claim was only incidental to the main relief’s, the learned trial Judge chose to stop with the observation that such a plea would be barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988.
5. So far as the contention of the revision petitioner that the plaint did not disclose a cause of action is concerned, the learned Trial Judge considered in proper perspective the averments made in the plaint and came to a conclusion that the plaint disclosed a cause of action and hence, the prayer for rejection of the plaint on the ground that the plaint does not disclose a cause of action was bound to be discountenanced.
6. So far as the other ground alleged by the revision petitioner is concerned, the learned Trial Judge disagreed with the contention of the revision petitioner, which resulted in the dismissal of the Interlocutory Application in I.A.No.105 of 2012 by order dated 17.4.2013, which is impugned in the present Civil Revision Petition.
7. The matter stands listed today for admission. Mr. K.S. Sankhar Murali, learned counsel for the revision petitioner put forward the very same arguments, which were advanced before the lower Court, in the Civil Revision Petition also. The main submission of the learned counsel for the revision petitioner is that the first respondent/plaintiff, having admitted the receipt of Rs.2,30,00,000 (Rupees Two Crores and Thirty Lakhs only) by executing a document of undertaking and thereafter, confirming the same by executing a document
