BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserved : 27/03/2024 Date of Pronounced : 20/06/2024 CORAM The Hon'ble Mr.Justice G.ILANGOVAN C.R.P(MD)No.2635 of 2023 and CMP(MD)No.13748 of 2023 Annadurai : Petitioner/4^th Defendant Vs.

1.Santhanakrishnan : 1^st Respondent/Plaintiff

2.Senthilkumar

3.viji

4.Amutha

5.Uma Maheswari

6.The Assistant Executive Engineer, Tamil Nadu Electricity Board (TNEB), Maruthupandiar Nagar, Sivagangai Town, Sivagangai District. : Respondents 2 to 6/

Defendants 1,2,3,5 & 6 PRAYER:-Civil Revision Petition has been filed under Article 227 of the Constitution of India, to strike of the impugned plaint in OS No.301 of 2023 on the file of the Sub Court, Sivagangai.

For Petitioner : Mr.P.M.Vishnuvarthanan For 1st Respondent : Mr.K.Navaneetharaja For R2 to R6 : No appearance

O R D E R

This civil revision petition has been filed seeking to strike off the plaint in OS No.301 of 2023 on the file of the Sub Court, Sivagangai.

2.The facts in brief:-

Suit in OS No.301 of 2023 was filed by the first respondent herein as plaintiff seeking the relief of partition, permanent injunction against the 6^th defendant and for costs. The petitioner, who is arrayed as 4^th defendant in the suit, filed a petition under Article 227 of the Constitution of India to strike off the plaint, so far as the 3^rd defendant is concerned.

3.The facts narrated in the plaint:-

The plaintiff and the defendants 1 to 5 are brothers and sisters. The suit property originally belonged to their father namely Ramachandran. It is a joint family property. He died in the year 2018. So, the property devolved jointly upon the plaintiff and the defendants 1 and 2. Now they are in joint possession. In the 1^st item, which measuring about 5-3/4 cents, the plaintiff put up a house and residing there. The 1^st item of the property is a vacant site. The plaintiff's wife is running a Oil Mill in the 1^st item. Now the plaintiff understand that the defendants without his knowledge taking steps to encumber the property. Hence, the suit.

4.The suit is posted before the trial court. At that time, this petition has been filed directly seeking rejection of the plaint with the following grounds:- The revision petition filed a suit in OS No.66 of

2012 on the file of the Sub Court, Sivagangai against the plaintiff and others seeking the relief declaration and permanent injunction in respect of the 1^st item of the property. In that suit, the settlement deed executed in favour of this petitioner was upheld. The suit was decreed by the Sub Court, Sivagangai, by decree and judgment, dated 26/08/2015. Against which, AS No.24 of 2015 was filed before the Appellate Court namely District Court, Sivagangai. That also came to be dismissed by judgment and decree, dated 22/12/2016. Against which, SA(MD)No.200 of 2017 was filed. That also came to be dismissed by judgment and decree, dated 24/04/2017. Suppressing all those earlier litigations and finality or conclusion, the suit is filed. On that account, the suit is liable to struck off.

5.Heard both sides.

6.A preliminary objection was raised by the learned counsel appearing for the first respondent as to the maintainability of the revision without approaching the trial court by filing proper application under Order 7 Rule 11 CPC. In support of his contention, he would rely upon the judgment of the Hon'ble Supreme Court reported in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and others [(2021)9 SCC 99] on the point that plaint cannot be rejected on the plea of res-judicata. Only the plaint averments must be taken into consideration while considering the rejection of plea, but not the defence to be taken by other side.

7.Per contra, the learned counsel appearing for the petitioner would submit that it is a clear case of abuse of process of court; when exceptional ground is available, he is well within his right to approach this court directly under Article 227 of the Constitution of India.

8.No doubt that the point of re-judicata cannot be