BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 19.09.2024 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.R.P.(MD)No.2014 of 2024 and C.M.P.(MD)No.11469 of 2024 M.Murugan ... Petitioner / Defendant Vs.

M.Premavathi (died)

1.Mariammal 2.M.Senthivel

3.Mariselvi

4.M.Pavunu ... Respondents 1 to 4 / Plaintiffs 2 to 5 Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to strike off the plaint in O.S.No.40 of 2015 on the file of the District Munsif Court, Madurai Taluk, Madurai by allowing the civil revision petition.

For Petitioner : Mr.V.Meenakshi Sundaram for Mr.R.Velmurugan For Respondents : no appearance

O R D E R

Heard the learned counsel appearing for the revision petitioner. The respondents have been served and their names are printed in the cause list. But they have not chosen to enter appearance.

2. This civil revision petition has been filed under Article 227 of the Constitution of India to strike off the plaint in O.S.No.40 of 2015 on the file of the District Munsif Court, Madurai Taluk. The respondents herein filed the said suit for permanent injunction to restrain the revision petitioner herein from interfering with their possession and enjoyment of the suit property. The petitioner herein had earlier filed I.A.No.459 of 2015 under Order 7 Rule 11 of C.P.C to reject the plaint in O.S.No.40 of 2015. The said IA was dismissed on 12.07.2016. The petitioner failed to question the same by filing any civil revision petition before this Court. The first question that calls for consideration is whether dismissal of interlocutory application under Order 7 Rule 11 of C.P.C will operate as a bar for entertaining the revision petition under Article 227 of Constitution of India for striking off the plaint.

3. The Hon'ble Supreme Court in the decision reported in (2019) 9 SCC

538 (Virudhunagar Hindu Nadargal dharma Paribalana Sabai vs. Tuticorin Educational Society) had held that wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Therefore, the petitioner rightly invoked the remedy under Order 7 Rule 11 of C.P.C. It suffered dismissal. Merely because the said order was left unchallenged, the petitioner is not denuded of his right to independently seek quashing of the proceedings under Article 227 of the Constitution of India. This is because, there is fundamental distinction between the scope of the two remedies. When the defendant invokes remedy under Order 7 Rule 11 of C.P.C, the Court cannot travel outside the scope of the plaint averments and the plaint documents. However, when remedy under Article 227 of the Constitution of India is sought, there is no such restriction. The High Court can take into account the materials other than the plaint and the plaint documents to ascertain whether there is any abuse of legal process which question falls outside the scope and ambit of Order 7 Rule 11 C.P.C.

4. Even if the plaint is rejected, the plaintiff is not precluded from instituting a fresh suit on the same cause of action. But when the plaint is struck off under Article 227 of the Constitution of India, the plaintiff cannot file any fresh suit on the same cause of action. In view of such fundamental difference between the scope of two remedies, I hold that failure to challenge the dismissal of IA under Order 7 Rule 11 of C.P.C will not come in the way of the defendant from invoking his remedy under Article 227 of the Constitution of India.

5. Let me come to the merits of the matter. The basic facts which can be delineated from the plaint averments are not in dispute. The suit property belonged to one Muthupillai. He passed away leaving behind the respondents herein as his legal heirs. The respondents herein executed sale