(Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the fair and decreetal order dated 16.06.2016 in I.A.No.9 of 2016 in O.S.No.55 of 2015 on the file of III Additional District Court, Tirunelveli.)
1. This civil revision petition has been filed by the petitioner/defendant, to set aside the fair and decreetal order dated 16.06.2016 in I.A.No.9 of 2016 in O.S.No.55 of 2015 on the file of III Additional District Court, Tirunelveli.
2. The respondent herein, as plaintiff, filed a suit in O.S.No.409 of 2012 before the learned II Additional District Judge, Tirunelveli, praying for the relief of permanent injunction against the revision petitioner/defendant. The aforesaid suit was dismissed on 26.03.2015, wherein, the II Additional District Munsif has observed that the respondent herein is not in possession of the suit property. After the dismissal of the aforesaid suit, the respondent herein filed another suit in O.S.No.55 of 2015 before the III Additional District Munsif, Tirunelveli, praying to declare the suit property belongs to the respondent and also for recovery of possession and mandatory injunction for demolition of the compound wall constructed by the petitioner/defendant.
3. During the pendency of the aforesaid suit, the petitioner/defendant filed an application in I.A.No.9 of 2016 under Order 2 Rule 2 and Order 7 Rule 11 and Section 151 of C.P.C., to reject the plaint filed by the respondent/plaintiff in O.S.No.55 of 2015, contending that the suit is also barred by limitation. The Court below has considered the objection made by the respondent and dismissed the said application stating that the earlier suit filed by the respondent in O.S.No.409 of 2012 was for permanent injunction and the present suit has been filed for declaration, recovery of possession and for mandatory injunction and hence, the petition filed under Order 2 Rule 2 and Order 7 Rule 11 of C.P.C. will not attract the present case to reject the plaint. Further, the Court below has observed that when the suit in O.S.No.409 of 2012 was pending before the Court below, the petitioner/defendant has constructed the compound wall.
4. According to the learned counsel for the petitioner, the cause of action arisen in the earlier suit and the present suit are one and the same. Therefore, the issue raised in the earlier suit by the respondent/plaintiff was already decided by this Court and hence, for the very same cause of action, the respondent herein filed the present suit which is a bar on the plaintiff to file the present suit under Order 2 Rule 2 and Order 7 Rule 11 of C.P.C. and hence, aggrieved against the said order in I.A.No.9 of 2016, the petitioner has come forward with this present civil revision petition.
5. The learned counsel for the petitioner would rely upon the decision in Kongunadu Arts and Science College V. Gnanambigai Mills Ltd., reported in 2014(1) CTC 43 and submit that the aforesaid decision will squarely applies to the fact of the present case and hence, the impugned dismissal order passed in the application to reject the plaint is liable to be set aside and to pray for allowing the civil revision petition.
6. Heard the learned counsel for the revision petitioner and perused the materials available on record.
7. The respondent/plaintiff has filed a suit in O.s.No.409 of 2012 before the II Additional District Munsif, Tirunelveli for permanent injunction against the petitioner/defendant herein. The cause of action arose in the said suit was on 01.09.2012. The petitioner/defendant attempted to take possession of the property illegally. The trial Court, in its judgment dated 26.03.2014 made in O.S.No.409 of 2012, in para 2, has observed as follows:
TAMIL Perusal of the above said observation, I am of the view that the Court below has decided only the possession of the property and hence, the suit was dismissed stating that the respondent/plaintiff was not in possession of the property.
8. It is useful to extract the cause of action portion stated in para 7 of the plaint filed by the respondent/plaintiff in O.S.No.55 of 2015, which reads as follows:
Perusal of the said cause of action, I am of the view that the cause of action raised in the earlier suit and the present suit are not one and the same as contended by the learned counsel for the petitioner and the suit was decided only in respect of possession of the property. The learned trial Judge has not gone into the title of the property and hence, in the absence of any discussion by the Court below in respect of title of the suit property, the petitioner cannot now raise the issue order 2 Rule 2 of C.P.C., at the preliminary stage itself. Those are all disputed facts and the same can be decided only at the time of trial.
9. Considering the decision relied in by the petitioner in Kongunadu Arts and Science College V. Gnanambigai Mills Ltd., reported in 2014(1) CTC 43, this Court has held that the suit filed for injunction against construction at first instance followed by second suit for removal of such construction, the second suit is barred. The aforesaid decision will not apply to the facts of the present case, since the petitioner has filed the present suit for declaration, recovery of possession and for mandatory injunction. The title of the property has to be decided only at the time of trial.
10. In the decision of the Apex Court in Rathnavathi and another V. Kavita Ganashamdas reported in 2014(6) CTC 33(SC), the Apex Court has held in paras 26, 27, 29 and 30 as follows:
26.Coming first to the legal question as to whether bar contained in Order 2 Rule 2 of C.P.C., is attracted so as to non-suit the plaintiff from filing the suit for specific performance of the agreement, in our considered opinion, the bar is not attracted.
27. At the outset, we consider in opposite to take note of law laid down by the Constitution Bench of this Court in Gurbus Singh V. Bhooralal, AIR 1964 SC 1810, laid down in the parameters as to how and in what circumstances, a plea should be invoked against the plaintiff. .............
29. In the instance case when we apply the aforementioned principle, we find that bar contained I Order 2, Rule 2, is not attracted because of the distinction in the cause of action for fling the two suits. So far as the Suit for permanent injunction is concerned, it was based on a threat given to the plaintiff by the defendants to dispossess her from the suit house on 2.1.2000 and 9.1.2000. This would be clear from reading para 17 of the plaint. So far as cause of action to file suit for specific performance of agreement is concerned, the same was based on on-performance of Agreement dated 15.2.1989 by Defendant No.2 in plaintiff's favour despite giving Legal notice dated 6.3.2000 to Defendant No.2 to perform her part.
30. In our considered opinion, both the Suits were, therefore, founded on different causes of action and hence, could be filed simultaneously. Indeed even the ingredients to file the suit for permanent injunction are different than that of the suit for specific performance of agreement.
11. On a careful reading of para 20 of the the judgment in O.S.No.409 of 2012, I am of the view that the suit was decided only on the basis of the materials produced by the parties to establish the possession of the property. The suit was filed only for permanent injunction. Therefore, the Court below has answered only for the issue of possession of the property. Perusal of the above cause of action in both the suits and the circumstances under which they are filed and the reliefs sought for therein would go to show without any doubt that both the suits were not filed on the same cause of action even though part of such cause of action. It is also well settled that grounds of rejection of the plaintiff as contemplated under Order 7 Rule 11 of C.P.C must be evident apparent on the fact of the plaint and not to be culled out from the case of the defendant. The contention of the petitioner is that the said suit is barred by limitation. It is a mixed question of law and those are disputed facts. Therefore, at this stage, this Court cannot decide the issue of limitation. The said issue has to be decided by the Court below only at the time of trial. Therefore, the order passed by the Court below dated 16.06.2016 in I.A.No.9 of 2016 in O.S.No.55 of 2015 on the file of III Additional District Court, Tirunelveli does not warrant any interference by this Court and the civil revision petition fails and the same is liable to be dismissed.
12. In view of the reasons stated above, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.