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2025 Supreme(Online)(KER) 11390
HIGH COURT OF KERALA
BASANT BALAJI, J
N.G.MADHAVAN NAIR – Appellant
Versus
UDAYAN – Respondent
OP(C) 2825/2024
LATHEESH SEBASTIAN, J.R.PREM NAVAZ, J.R MUHAMMED SWADIQ(K/1860/2022)
A plaint cannot be rejected for misjoinder of parties unless it leads to an abuse of process; the suit must be adjudicated on merits.
Headnote:(A) Code of Civil Procedure, 1908 - Order 7 Rule 11 - Suit for permanent prohibitory injunction - Respondent filed suit after vacating premises, alleging forceful eviction - Petitioner contended lack of cause of action due to sale of property before suit - Lower court dismissed application to reject plaint, finding merit in plaintiff's claims. (Paras 2, 3, 8, 10, 11)
(B) Misjoinder of Parties - A plaint suffering from misjoinder does not make it liable for rejection, and courts should address matters concerning the rights of parties before them - Application to reject plaint deemed premature as the suit requires adjudication on merits. (Paras 10, 11)
Facts of the case:
The petitioner, having sold the shop room to a third party, claimed the respondent had no cause of action as he vacated the premises. However, the plaintiff asserted he had not vacated and sought police assistance to regain possession.
Findings of Court:
The lower court correctly dismissed the petition to reject the plaint, emphasizing the necessity of adjudication on the merits of the case regarding forceful eviction.
Issues: Whether the suit can be rejected for misjoinder of parties when the actual cause of action exists against the defendant.
Ratio Decidendi: The court held that misjoinder does not warrant rejection of a plaint unless it results in abuse of process, affirming the lower court's decision to allow the suit to proceed.
Result: Original Petition dismissed.
JUDGMENT
(Dated this the 12th day of February 2025)
The petitioner is the defendant and respondent is the plaintiff in O.S. No. 645/2024 on the files of second Additional Munsiff Court, Neyyattinkara. The suit was filed for a decree of permanent prohibitory injunction restraining the petitioner from evicting the respondent from a shop room.
2. The brief facts of the case of the petitioner are as follows: - The respondent, prior to the filing of the suit, vacated the premises and handed over vacant possession of the building. The suit was filed thereafter, raising a false cause of action of attempt of forceful eviction against the petitioner herein. The respondent thereafter filed I.A No. 5/2024, as Ext P3, seeking direction to the petitioner to hand over shop room to the respondent failing which, the Deputy superintendent of Police was directed to break open the room and hand over possession of the building to the respondent. Meanwhile, the respondent filed a writ petition before this court in W.P. (C) No. 30752/2024, wherein the petitioner and the subsequent purchaser of the property as well as her father were made parties, seeking police protection against interference of possession. The said petition was dismissed wherein police protection was denied, but protection to life was granted, if warranted.
3. In the above background, the petitioner filed I.A. No 6/2024, Ext P6, for rejecting the plaint for want of cause of action against the respondent/plaintiff, as he has no title in the plaint schedule property at present after transfer of the property. The learned Munsiff dismissed Ext P6 petition, by Ext P8 order dated 01.10.2024, against which the present original petition stands filed.
4. Heard counsels appearing on either sides.
5. The counsel for the petitioner contends that since the respondent is not the owner in possession of the plaint schedule building, a suit for permanent prohibitory injunction against forceful eviction will not lie. It is the case of the petitioner that he has sold the property to a third party, prior to the institution of the suit.
According to the petitioner, the actual owner is not impleaded in the suit. He further contends that from the pleadings in the Ext.P3 petition itself, it is evident that the respondent is not in possession of the building and the present owner has occupied it. Being aware of this fact, the respondent/plaintiff has neither initiated steps to implead the present owner in the suit nor has sought for proper reliefs. Thus, the intent of the plaintiff is only to harass the petitioner forcing him to conduct the case in the absence of any cause of action as against him. Thus, the lower court ought to have considered the petition to reject the plaint, as the suit is devoid of cause of action against the petitioner/defendant.
6. The defendant, in Ext P6, has stated that the agreement with the plaintiff with respect to the plaint schedule shop room has ended on 11.04.2024 and the agreement has been cancelled due to the default in paying rent by the plaintiff. Subsequently, the plaintiff, by way of notice, was asked to vacate the said premises and he was also made known that the defendant/petitioner was about to dispose the property. Hence, the plaintiff is not having any right over the plaint schedule shop room. It is also affirmed that the said property in the name of the defendant was already sold to a stranger and has also effected mutation in her name. Thus, it is contended that the plaint is liable to be rejected as no cause of action exists as against the defendant, since the property is not in his name when the suit was filed.
7. The counsel for the respondent in their objection to Ext P6 has contended that the defendant himself admitted the fact that though the agreement with the plaintiff has ended on April 2024, the plaintiff had paid the rent till June of 2024. The contention that the plaintiff has vacated the shop room by himself after the receipt of notice, is vehemently oppo
