C.R.P.No.2251 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date of Reserving Order

07.06.2023

Date of Pronouncing Order

1.09.2023

CORAM

THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

C.R.P.

No.2251 of 2021

and C.M.P.No.17096 of 2021

Kesavan

... Petitioner

-vs-

1.Pushpavathy

2.Boolagammal (Died)

3.Jayalakshmi

4.Selvalatha

5.Jayabal

6.Lakshmanan

... Respondents

(Respondents 4 to 6 brought on record as LRs of the deceased R2 viz.,

Boolagammal vide Court Order dated 23.02.2023 made in C.M.P.Nos.1722,

1729, 1735 of 2023 in C.R.P.No.2251 of 2021 by VBSJ)

PRAYER: Civil Revision Petition filed under Article 227 of the Indian

Constitution, pleased to call for the plaint in O.S.No.128 of 2019 on the file

of the District Judge-II, Kanchipuram and strike - off the same as sheer

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C.R.P.No.2251 of 2021

abuse of process of law, barred by limitation, vexatious, non-joinder of

necessary parties, concealing material facts.

For Petitioner

: Mr.R.Singaravelan, Senior Counsel

for Mr.M.Muruganantham

For Respondent 1 : Ms.Gayatri for Mr.P.B.Ramanujam

For R2

: No Appearance

For R4 to R6

: Notice not ready

**********

ORDER

This Civil Revision Petition is filed to call for the plaint in

O.S.No.128 of 2019 on the file of the District Judge-II, Kanchipuram and

strike - off the same as sheer abuse of process of law, barred by limitation,

vexatious, non-joinder of necessary parties, and concealing material facts.

2. Brief facts which are necessary to decide this petition are as

follows:

The Respondents in this Civil Revision Petition had filed O.S.No.128

of 2019 on the file of the learned District Judge - II, Kanchipuram seeking

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C.R.P.No.2251 of 2021

the relief of partition. The Petitioner was impleaded as second Defendant in

the suit. Since the suit for partition itself is not maintainable, the second

Defendant as Petitioner had approached this Court by filing petition under

Article 227 of Constitution of India seeking to strike out the plaint from the

file of the learned District Judge - II, Kanchipuram as it is an abuse of the

process of the Court.

3. The Learned Senior Counsel Mr.R.Singaravelan appearing for the

Revision Petitioner submitted his arguments stating that usually when the

suit is not maintainable either on the interpretation of any law or when there

is a bar for filing any suit as per any law under Order VII Rule 11 CPC, the

person who is aggrieved by the suit had filed petition challenging the

maintainability of the suit. Here, in this case, the Court had sought

maintainability of this petition without agitating the right of the party under

Order VII Rule 11 CPC and straight away petition having been filed under

Article 227 of the Constitution of India. Therefore, the learned Senior

Counsel Mr.R.Singaravelan submitted that it is a thin line of lineation which

differentiate the filing of a petition straight away before this Court when

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C.R.P.No.2251 of 2021

there is an abuse of the process of the Court. A petition under Order VII

Rule 11 is filed only when there are grounds available as per Order VII Rule

11 based on the pleadings in the plaint.

4. Based on the pleadings in the plaint itself if it is found that it is

nothing but an abuse of the process of the Court, then the aggrieved party

need not be pushed to by the trial Court for filing a petition under Order VII

Rule 11 CPC instead this very same High Court shall exercise the discretion

under Article 227 of the Constitution of India and strike out the plaint

straight away, if the Hon'ble High Court arrives at a conclusion that the

institution of the suit itself is an abuse of the process of the Court. The

learned Senior counsel relied on the plaint averments. The Plaintiff

Pushpavathy, is the sister of this Revision Petiti