R.Ravichandran. Vs. the Corporation of Chennai, and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/927250
SubjectCivil
CourtChennai High Court
Decided OnApr-04-2012
Case NumberC.R.P.(NPD) No.1395 of 2012 and M.P.No.1 of 2012
JudgeG.RAJASURIA, J.
ActsCode Of Civil Procedure (CPC), 1908 - Order 7 Rule 11, Sections 2(2), 100, 7(4)(c); Madras City Municipal Corporation Act, 1919 - Sections 56, 57
AppellantR.Ravichandran.
RespondentThe Corporation of Chennai, and anr.
Advocates:Mr.R.Thiagarajan, Adv.
Excerpt:
[g.rajasuria, j.] - code of civil procedure (cpc), 1908 - order 7 rule 11 -- animadverting upon the order of rejection of the plaint dated 22.03.2012 passed by the learned assistant judge, city civil court, chennai in o.s.sr.no.11595 of 2012, this civil revision petition has been on the main ground that the notice dated 05.01.2012 was issued by the second defendant calling upon the plaintiff to stop the construction despite the building have been assessed to property tax and the. the maintainability of the suit could be decided after issuing summons to the defendants and after hearing both sides, as a preliminary issue.  in that case this court observed that whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the state and that the defendants who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint.this civil revision petition is preferred as against the  order dated 22.03.2012 passed by the learned i assistant judge, city civil court, chennai in o.s.sr.no.11595 of 2012.g.rajasuria, j.order1. animadverting upon the order of rejection of the plaint dated 22.03.2012 passed by the learned i assistant judge, city civil court, chennai in o.s.sr.no.11595 of 2012, this civil revision petition has been focussed.2.  heard the learned counsel for the petitioner.3. the revision petitioner/plaintiff filed the suit seeking the following reliefs:- for a judgment and decree as against the defendants 1 and 2 as under:- for a declaration that the impugned notice issued by the 2nd defendant dated 05.01.2012 is illegal, invalid and non-est in the eyes of law.- for a permanent injunction restraining the defendants 1 and 2 or their men, agents, servants or any one claiming through them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule mentioned property or effecting any demolition of the structures erected by the plaintiff at plot no.10, door no.2, karunanidhi 2nd street, west mambalam, chennai 600 033 comprised in s.no.1/2, t.s.no.56, block no.2 of saidapet village, mambalam guindy taluk, chennai district more fully described in the plaint schedule except in accordance with law and for costs.(extracted as such)on the main ground that the notice dated 05.01.2012 was issued by the second defendant calling upon the plaintiff to stop the construction despite the building have been assessed to property tax and the revised plan is pending with the second defendant. 4.  the learned counsel for the revision petitioner/plaintiff would submit that there were some deviations, for which a revised plan was given and it is under consideration.  while so, the impugned notice was given.  there is no statutory remedy available for the petitioner to air the grievance as against the said notice.  since according to him, the respondents acted in violation of principles of natural justice, the plaintiff is constrained to approach the court for remedy.  however, the court without numbering the suit and issuing summons to the defendants, simply, passed an order suo motu as though the suit was not maintainable.5.  the maintainability of the suit could be decided after issuing summons to the defendants and after hearing both sides, as a preliminary issue.  but the trial court has not chosen to do so.  hence, the learned counsel prays for setting aside the order passed by the lower court and for giving direction to the trial court to number the suit and issue summons to the defendants.6.  i would like to fumigate my mind with the following decisions:(i)  air 1973 sc 2384 [shamsher singh vs. rajinder prashad and others].  certain excerpts from it would run thus:"3. ................before us a preliminary objection was raised based on the observations of this court in rathnavarmaraja v. smt.vimala, air 1961 sc 1299 that the present appeal is not competent.  in that case this court observed that whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the state and that the defendants who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. ............................................................................................................................in the present case the plaint was rejected under order 7 rule 11 of the cpc.  such an order amounts to a decree under section 2 (2) and there is a right of appeal open to the plaintiff.  furthermore, in a case in which this court has granted special leave the question whether an appeal lies or not does not arise.  even otherwise a second appeal would lie under section 100 of the cpc on the ground that the decision of the 1st appellate court on the interpretation of section 7 (iv) (c ) is a question of law.  there is thus no merit in the preliminary objection. "(ii)  (2002)1 mlj 684 [ hindustan petroleum corporation limited represented by its senior regional manager-retail, coimbatore retail region, a.p. arcade (singapore plaza), coimbatore vs. c.m.hariraj and another].  certain excerpts from it would run thus:"18. ...............normally, the rejection of the plaint amounts to a decree and an appeal has to be filed; but in this case, without any notice and without hearing of the other side, the order was passed by the court below and, as such, the inherent jurisdiction of this court can be exercised and hence, the points are answered accordingly." (emphasis supplied)the learned counsel for the revision petitioner would cite the decision of this court reported in 2005(1) ctc 573 [madras metropolitan development authority rep.by its member secretary vs p.muthukrishnan and others].the aforesaid decisions are relating to the power of the court under order 7 rule 11 of the code of civil procedure relating to rejection of plaint.7.  no doubt, the power of the court is wide; even then that has to be exercised cautiously and justly.  here, the submissions on the side of the plaintiff are to the effect that the controversy and dispute involved is a mixed question of law and facts andt before numbering the suit itself, the plaint should not have been rejected as aforesaid.  as such, the learned counsel for the revision petitioner/plaintiff wants opportunity to put forth his case before the lower court after numbering of the suit and that too after securing the presence of the defendants before the court.8.  order xiv of the code of civil procedure contemplates preliminary issue to be framed and heard.  no doubt, the court suo motu, in this case had the doubt whether the suit itself was  maintainable or not and hence it proceeded to decide it.  but a mere poring over and perusal of the order as well as the records would reveal that the dispute involved in this case is a mixed question of law and fact and there are complicate points to be considered.9.  para nos.8 and 9 of the plaint are extracted here under for ready reference:"8. as a matter of fact, none of the neighbours of the plaintiff or adjacent owners have raised any objection with regard to the construction put up by the plaintiff.  since the actions of the 2nd defendant is tainted with illegalities and immoralities which does not have the sanction of law, the plaintiff is obliged to invoke the equitable jurisdiction of this hon'ble court to protect and preserve his property and his possession and enjoyment of the property.  since the purported notice dated 05.01.2012 issued by the 2nd defendant is illegal, invalid and non-est in the eyes of law the same is liable to be set aside as illegal in as much as before resorting to such a notice the defendants have not chosen to issue any show cause notice calling upon the plaintiff to furnish the particulars.  even after the issuance of the notice the plaintiff produced all the relevant records and sanctioned plan and building permission and permit but however, for reasons best known to the 2nd defendant is bent upon taking proceedings with the further consequential proceedings pursuant to the notice dated 05.01.2012.  since there is a threat and strong apprehension in the mind of the plaintiff that the building may be demolished without following due process of law or without issuing show cause notice as contemplated in law.  hence, the plaintiff is obliged to file the present suit.9.  that the cause of action for the above suit arose at chennai within the jurisdiction of this hon'ble court when the plaintiff  purchased the property situate at plot no.10, door no.2, karunanidhi 2nd street, west mambalam, chennai 600 033 comprised in s.no.1/2, t.s.no.56, block no.2 of saidapet village, mambalam guindy taluk, chennai district on 29.03.2010 for valuable consideration and subsequently when the plaintiff applied for demolition of the existing structure and secured planning permission and permit and sanctioned plan on 04.08.2011 and subsequently when the plaintiff submitted a revised plan in accordance with the site condition and lastly on 05.01.2012 purported to be a notice under section 56 and 57 read with section 85 of the madras city municipal corporation act, 1919 and tamil nadu town and country planning act, 1971 and lastly when there is a threat of wrongful interference and invasion and threat of wrongful demolition of the property pursuant to the notice dated 05.01.2012 continues de-die-in diam."(extracted as such from the plaint)it appears the lower court has not considered those averments relating to apprehension of demolition and interference otherwise than as per law. 10.   this is not a case where the plaintiff filed the suit so as to protect his encroachment on a street or public place or canal etc. , but he wants to protect his premises from being disturbed pending virtually finalisation of the revised plan and the proceedings in that connection.   hence, i am of the considered view that the lower court should not have simply rejected the plaint at that stage.11.  in such view of the matter, the order of the court below is set aside and the matter is remitted back to the lower court with a direction to number the suit, if it is otherwise than in order and process it as per law.12. accordingly, this civil revision petition is disposed of.  no costs.  consequently, the connected miscellaneous petition is closed.
Judgment:

This civil revision petition is preferred as against the  order dated 22.03.2012 passed by the learned I Assistant Judge, City Civil Court, Chennai in O.S.Sr.No.11595 of 2012.

G.RAJASURIA, J.

ORDER

1. Animadverting upon the order of rejection of the plaint dated 22.03.2012 passed by the learned I Assistant Judge, City Civil Court, Chennai in O.S.SR.No.11595 of 2012, this civil revision petition has been focussed.

2.  Heard the learned counsel for the petitioner.

3. The revision petitioner/plaintiff filed the suit seeking the following reliefs:

- For a judgment and decree as against the defendants 1 and 2 as under:

- for a declaration that the impugned notice issued by the 2nd defendant dated 05.01.2012 is illegal, invalid and non-est in the eyes of law.

- for a permanent injunction restraining the defendants 1 and 2 or their men, agents, servants or any one claiming through them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule mentioned property or effecting any demolition of the structures erected by the plaintiff at Plot No.10, Door No.2, Karunanidhi 2nd Street, West Mambalam, Chennai 600 033 comprised in S.No.1/2, T.S.No.56, Block No.2 of Saidapet Village, Mambalam Guindy Taluk, Chennai District more fully described in the plaint schedule except in accordance with law and for costs.

(Extracted as such)

on the main ground that the notice dated 05.01.2012 was issued by the second defendant calling upon the plaintiff to stop the construction despite the building have been assessed to property tax and the revised plan is pending with the second defendant. 

4.  The learned counsel for the revision petitioner/plaintiff would submit that there were some deviations, for which a revised plan was given and it is under consideration.  While so, the impugned notice was given.  There is no statutory remedy available for the petitioner to air the grievance as against the said notice.  Since according to him, the respondents acted in violation of principles of natural justice, the plaintiff is constrained to approach the court for remedy.  However, the court without numbering the suit and issuing summons to the defendants, simply, passed an order suo motu as though the suit was not maintainable.

5.  The maintainability of the suit could be decided after issuing summons to the defendants and after hearing both sides, as a preliminary issue.  But the trial court has not chosen to do so.  Hence, the learned counsel prays for setting aside the order passed by the lower court and for giving direction to the trial court to number the suit and issue summons to the defendants.

6.  I would like to fumigate my mind with the following decisions:

(i)  AIR 1973 SC 2384 [Shamsher Singh vs. Rajinder Prashad and others].  Certain excerpts from it would run thus:

"3. ................Before us a preliminary objection was raised based on the observations of this court in Rathnavarmaraja v. Smt.Vimala, AIR 1961 SC 1299 that the present appeal is not competent.  In that case this court observed that whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State and that the defendants who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. ............................................................................................................................In the present case the plaint was rejected under Order 7 Rule 11 of the CPC.  Such an order amounts to a decree under Section 2 (2) and there is a right of appeal open to the plaintiff.  Furthermore, in a case in which this court has granted special leave the question whether an appeal lies or not does not arise.  Even otherwise a second appeal would lie under Section 100 of the CPC on the ground that the decision of the 1st appellate court on the interpretation of Section 7 (iv) (c ) is a question of law.  There is thus no merit in the preliminary objection. "

(ii)  (2002)1 MLJ 684 [ Hindustan Petroleum Corporation Limited represented by its Senior Regional Manager-Retail, Coimbatore Retail Region, A.P. Arcade (Singapore Plaza), Coimbatore vs. C.M.Hariraj and another].  Certain excerpts from it would run thus:

"18. ...............Normally, the rejection of the plaint amounts to a decree and an appeal has to be filed; but in this case, without any notice and without hearing of the other side, the order was passed by the court below and, as such, the inherent jurisdiction of this court can be exercised and hence, the points are answered accordingly." 

(Emphasis supplied)

The learned counsel for the revision petitioner would cite the decision of this court reported in 2005(1) CTC 573 [Madras Metropolitan Development Authority rep.by its Member Secretary vs P.Muthukrishnan and others].

The aforesaid decisions are relating to the power of the court under Order 7 Rule 11 of the Code of Civil Procedure relating to rejection of plaint.

7.  No doubt, the power of the court is wide; even then that has to be exercised cautiously and justly.  Here, the submissions on the side of the plaintiff are to the effect that the controversy and dispute involved is a mixed question of law and facts andt before numbering the suit itself, the plaint should not have been rejected as aforesaid.  As such, the learned counsel for the revision petitioner/plaintiff wants opportunity to put forth his case before the lower court after numbering of the suit and that too after securing the presence of the defendants before the court.

8.  Order XIV of the Code of Civil Procedure contemplates preliminary issue to be framed and heard.  No doubt, the court suo motu, in this case had the doubt whether the suit itself was  maintainable or not and hence it proceeded to decide it.  But a mere poring over and perusal of the order as well as the records would reveal that the dispute involved in this case is a mixed question of law and fact and there are complicate points to be considered.

9.  Para Nos.8 and 9 of the plaint are extracted here under for ready reference:

"8. As a matter of fact, none of the neighbours of the plaintiff or adjacent owners have raised any objection with regard to the construction put up by the plaintiff.  Since the actions of the 2nd defendant is tainted with illegalities and immoralities which does not have the sanction of law, the plaintiff is obliged to invoke the equitable jurisdiction of this Hon'ble Court to protect and preserve his property and his possession and enjoyment of the property.  Since the purported notice dated 05.01.2012 issued by the 2nd defendant is illegal, invalid and non-est in the eyes of law the same is liable to be set aside as illegal in as much as before resorting to such a notice the defendants have not chosen to issue any show cause notice calling upon the plaintiff to furnish the particulars.  Even after the issuance of the notice the plaintiff produced all the relevant records and sanctioned plan and building permission and permit but however, for reasons best known to the 2nd defendant is bent upon taking proceedings with the further consequential proceedings pursuant to the notice dated 05.01.2012.  Since there is a threat and strong apprehension in the mind of the plaintiff that the building may be demolished without following due process of law or without issuing show cause notice as contemplated in law.  Hence, the plaintiff is obliged to file the present suit.

9.  That the cause of action for the above suit arose at Chennai within the jurisdiction of this Hon'ble Court when the plaintiff  purchased the property situate at Plot No.10, Door No.2, Karunanidhi 2nd Street, West Mambalam, Chennai 600 033 comprised in S.No.1/2, T.S.No.56, Block No.2 of Saidapet Village, Mambalam Guindy Taluk, Chennai District on 29.03.2010 for valuable consideration and subsequently when the plaintiff applied for demolition of the existing structure and secured planning permission and permit and sanctioned plan on 04.08.2011 and subsequently when the plaintiff submitted a revised plan in accordance with the site condition and lastly on 05.01.2012 purported to be a notice under Section 56 and 57 read with Section 85 of the Madras City Municipal Corporation Act, 1919 and Tamil Nadu Town and Country Planning Act, 1971 and lastly when there is a threat of wrongful interference and invasion and threat of wrongful demolition of the property pursuant to the notice dated 05.01.2012 continues De-Die-in Diam."

(Extracted as such from the plaint)

It appears the lower court has not considered those averments relating to apprehension of demolition and interference otherwise than as per law. 

10.   This is not a case where the plaintiff filed the suit so as to protect his encroachment on a street or public place or canal etc. , but he wants to protect his premises from being disturbed pending virtually finalisation of the revised plan and the proceedings in that connection.   Hence, I am of the considered view that the lower court should not have simply rejected the plaint at that stage.

11.  In such view of the matter, the order of the court below is set aside and the matter is remitted back to the lower court with a direction to number the suit, if it is otherwise than in order and process it as per law.

12. Accordingly, this civil revision petition is disposed of.  No costs.  Consequently, the connected miscellaneous petition is closed.