IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.01.2011
THE HONOURABLE MR.JUSTICE S.PALANIVELU
C.R.P PD.No.1411 of 2009
and M.P.No.1 of 2009
V.Krishnamoorthy ... Petitioner / 2nd Defendant
1.Balakrishnan ... Respondent / Plaintiff
2.V.Ramamoorthy ... Respondent / 1st Defendant
Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India against the plaintiff in O.S.No.248 of 2009 before the Vacation Civil Judge (DMC), Coimbatore.
For Petitioner : Mr.K.Kalyanasundaram
For Respondents : Mr.S.Dhanasekaran for R1
No appearance for R2
O R D E R
This Civil Revision Petition is filed against the plaintiff in O.S.No.248 of 2009 before the Vacation Civil Judge (DMC), Coimbatore.
2. The petitioner had filed O.S.No.273 of 2000 on the file of the Principal District Munsif Court, Coimbatore against his brother, the 2nd respondent herein for delivery of possession of the suit properties. In the said suit, Schedule 'D' is the property in dispute in the present proceedings. He got an ex parte decree in the said case on 31.07.200. He levied execution proceedings in E.P.No.133 of 2002 on the file of the above said Court for delivery. In the execution proceedings also, the 2nd respondent did not appear and delivery was ordered by the Court. When the Court Amin came to deliver the property in favour of this petitioner, the 2nd respondent obstructed and thereafter he came with a suit before the Vacation Civil Court, Coimbatore impleading this petitioner and 2nd respondent in a suit which was subsequently transferred to the Trial Court in O.S.No.248 of 2009 for permanent injunction. After filing of the suit, the petitioner has preferred this revision before this Court under Article 227 of the Constitution praying this Court to strike off the plaint in O.S.No.248 of 2009.
3. In O.S.No.248 of 2009, the 1st respondent has alleged that the suit property originally belonged to one Venkatesh Naidu who is the father of the 1st respondent, that on 07.05.1993 Venkatesh Naidu executed an unregistered declaration deed (Urudhi Mozhi Paththiram) in favour of 2nd respondent, that this 1st respondent purchased the property from the 2nd respondent on 17.09.2008, that the properties in O.S.No.273 of 2000 and O.S.No.248 of 2009 are different, that on 28.04.2009, this petitioner came with Court Amin, police personnel and rowdy elements to vacate the plaintiff from the suit property and hence he had to file the suit and the same is pending.
4. The learned counsel for the petitioner Mr.Kalyanasundaram would submit that the very facts existing in this case would clearly show that the attempt on the part of the 1st respondent is abuse of process of the Court and hence under Article 227, the Court has got every power to strike off the case in O.S.No.248 of 2009, that in view of Order 21 Rule 101 CPC, the 1st respondent is procluded from filing a separate suit and he should have approached the executing court under Rule 99 of Order 21 of CPC. In support of his contention, he relied upon various decisions of Supreme Court and this Court.
5. Before entering into the case law, it is profitable to go through the relevant provisions with regard to the proceedings to be taken against the obstructionists in the matter of delivery of possession in execution proceedings. In 1997 (2) L.W 266 [Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr] , Their Lordships had an occasion to deal with Order 21 Rule 97, 98, 99 and 101 CPC. They have observed as follows - A conjoint reading of Order 21 Rules 97,98,99 and 101 CPC., projects the following picture :
(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35, then the decree-holder has to move an application under Order 21, Rule 97, for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudcating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2), read with Order 21, Rule 98. It is obvious that after such adjudcation, if it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf, then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101, and no separate suit would lie against such order meaning thereby, the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. (2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot of account of his absence from the place or for any other valid reason, then his remedy would lie in filing an application under Order 21, Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule(1), CPC the Executing Court can direct the stranger applicant under Order 21, Rule 99, to be put in possession of the property or it his application is found to be substanceless it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order 21, Rule 98, sub-rule(1), would be deemed to be a decree as laid down by Order 21, Rule 103, and would be appelable before appropriate appellate forum. But no separate suti would lie against such orders as clearly enjoined by Order 21, Rule 101.
6. The relevant provisions would indicate that it is for the decree holder to take proceedings against the judgment debtor or any other person claiming right under him who obstructs delivery of immovable property. Rule 97 enables the decree holder to file an application and after adjudication, the Court may allow the application directing him to be put in possession if the obstruction is found unreasonable or dismiss the petition if it turns out to be an unsustainable one. In so far as Rule 99 is concerned, if any person other than this judgment debtor is dispossessed from a immovable property by their decree holder or the property has been sold in execution of a decree, if the dispossession is caused by the Court auction purchaser, then the person dipossessed may prefer a petition to the executing court complaining of such dispossession.
7.When any petition filed by the decree holder under Rule 7 or any person dispossessed as described under Rule 99 of Order 21 of the code, it shall be adjudicated by the executing court and filing of separate suit is specificially barred under Rule 101 of Order 21. Pertinent it is to note that the petitioner being the decree holder has not taken any initiatives before the executing court against the obstructionist, the 1st respondent. The 1st respondent has not been dispossessed. He is not conceededly in possession of the property. Relevant provisions of the code do not prohibit the 1st respondent from filing the suit.
8. The learned counsel for the petitioner draws attention of this Court to the following decisions -
(1)2008 (5) CTC 137 [Kayalvizhi v. S.Parthasarathy]
(2)2009 (4) L.W. 592 [M.S.Mansoor Deen & 3 others v. Fathimuthu Beevi & 7 others]
(3)AIR 2004 CAL 99 [Md.Akhtar Hossain v. Suresh Singh]
(4)2008 (1) CTC 288 [Bannari Amman Sugars Limited v. R.Sakthivel]
9. In Kayalvizhi's case, this Court has dealt with Order 21 Rule 97 CPC under which a petition can be filed by the decree holder against an obstructor. The decision in M.S.Mansoor Deen's case above, this Court has rendered the decision under Order 21 Rule 97. It has been observed by this Court that as per the decision in Md.Akhtar Hussain's case, as held by Calcutta High Court, intervention by a third party in an execution proceeding by bringing a fresh suit is barred by Order 21 Rule 101 of CPC.
10. It is contended on behalf of the 1st respondent that without exhausting alternative remedy of filing application under Order 7, Rule 11 CPC, to reject the plaint before the trial court, the petitioner cannot seek the relief under Article 227 of Constitution before this Court. Repelling the contention, the learned counsel for the petitioner cited a decision reported in R.Sakthivel's case above in which it is held that when the suit is not maintainable and alternative remedy is available, this court can invoke jurisdiction under Article 227 and interfere.
11. The learned counsel for the petitioner also relies upon various decisions of this Court which would indicate that this Court can exercise power under Article 227 of Constitution when a party abuses process of Court. (1)1998 (1) CTC 66 [Ranipet Municipality v. M.Shamsheerkhan]
(2)2003 (4) CTC 347 [Swaminathan K.K. v. Srinivasagam]
(3)2009 (5) L.W. 79 [Tamil Nadu Handloom Weavers Cooperative Society v. S.R.Ejaz]
12. The Court has to see whether the filing of the suit in O.S.No.248 of 2009 by the 1st respondent is abuse of process of Court. It is stated by the petitioner that the suit is not maintainable since the property in dispute was purchased by the 1st respondent from the 2nd respondent during the pendency of the execution petition but it is contended by the 1st respondent that he had no knowledge about the suit and the execution proceedings filed by this petitioner. It is well settled that contentious issues or facts cannot be discussed and dealt in the petition filed under Article 227 of the constitution. When alternative remedy of filing petition under Order 7 Rule 11 of CPC is available to the petitioner, for rejection of plaint before the trial court, when the matter has to be dealt with reference to facts, this Court can refuse to exercise jurisdiction under Article 227.
13. The learned counsel for the 1st respondent S.Dhanasekaran would place much reliance upon following decision for stressing the prepositiion that when an effacacious alternative remedy is available to a party to the proceedings, the High Court can exercise jurisdiction under Article 227 of the Constitution. (1)2000 (4) CTC 358 [Venkatasubbiah Naidu, A. v. S.Challappan]
(2)2005 (2) CTC 365 [Enercon (India) Ltd., Mumbai v. J.T. Micheal Anjalo]
(3)2007 (7) MLJ 13 [Ganapathy Subramanian v. S.Ramalingam]
(4)2009 (5) CTC 627 [The Ootacamund Club v. H .S.Mehta]
(5)2009 (5) CTC 693 [S.Gunaseelan v. C.Valarmathi]
(6)2010 (2) MWN (Civil) 154 [Vaniyar Nala Sangam v. Kumar]
(7)2010 (3) CTC 604 [The Governing Council of American College v. Dr.M.Davamani Christober]
14. Their Lordships in Venkatasubbiah Naidu's case above have held that though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. This Court in Enercon (India) Limited case has held that Article 227 cannot be invoked only for abuse of process of law stares in the face and if circumstances warrant.
15. In Ganapathy Subramanian's case above, it is observed by this Court that mere filing of a suit by the respondents and taking the suit on the file by the trial Court cannot be regarded as an act on the part of the trial Court to transgress its jurisdiction or its bound. Of course, the party who files the suit might have filed it suppressing material facts or made up the suit to his convenience for seeking the relief which he is not otherwise entitled to, but that facto has to be considered by the trial Court during the relevant point of time.
16. In The Ootacamund Club's case, I have held after following the Supreme Court decisions that when an alternative remedy of appeal is available, the party cannot seek indulgence of this Court under Article 227 of the Constitution. In Gunaseelan's case, this Court has held that the falsity of plaint is a matter to be determined at the time of trial and if at all the suit is vexatious and based on false assertion, plaintiff would be liable to pay compensatory costs under Section 35-A of the Code of Civil Procedure.
17. This Court, in Vaniyar Nala Sangam's case has observed that on the basis of averments made in revision, it cannot be concluded that suit is an abuse of process of law and that the petitioners can raise all issues before Trial Court in accordance with law. Eventually, the Civil Revision Petition filed under Article 227 of the Constitution was dismissed by this Court. In Dr.M.Davamani Christober's case, this Court has rendered a finding that the High Court would not embark on any enquiry in exercise of power under Article 227 provided that finding is based on certain materials, that the party invoking Article 227 must show exceptional circumstances for exercise of such jurisdiction and show existence of error apparent on face of record or patent error and when lack of jurisdiction or improper exercise of jurisdiction is not made out, Article 227 could not be invoked.
18. Adverting to the facts of the present case, this Court is of the considered view that the petitioner has to move the executing Court under Order 21 of CPC to remove the obstruction. In so far as the exercise of jurisdiction under Article 227 is concerned, admiteddly the petitioner has got an alternative remedy of fiilng an application under Order 7 Rule 11 of CPC for rejection of plaint before the Court below. If this Court finds that the jurisdiction was not exercised by the trial Court properly or if it has exceeded the jurisdiction or if the suit is not found maintainable, it can exercise such power. It is reiterated that the fact of maintainability of the suit cannot be decided by this Court in this revision which involves dealing with the merits and demerits of the case by the trial Court. Hence, in my opinion, this revision is not maintainable.
19. In the light of the decisions cited above and all the well settled principles, the revision cannot be sustained and is liable to be dismissed.
20. In fine, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
The Vacation Civil Judge (DMC),