MR.JUSTICE PARESH UPADHYAY AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY O.S.A.No.230 of 2022. Child custody case single judge observation setaside

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 23.09.2022
Judgment Pronounced on : 28.09.2022
CORAM :
THE HON’BLE MR.JUSTICE PARESH UPADHYAY
AND
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.230 of 2022
1. E.Dhavamani
2. E.Gunamani
3. E.Jagadeesan
4. E.Lakshmi Sekar
5. B.Saroja
6. E.Jayaseelan
7. E.Rani Ethiraj alias E.Rani
8. E.Amudha
9. E.Bhaskar
10. E.Sridhar
11. E.Arul
12. E.Devatha
13. E.Karnal
14. E.Ebi
15. E.Chandra
16. E.Rajan17. E.Ponmudi
rep. by General Power of Attorney
E.Karnal .. Appellants
Versus
1. G.Sankarabushanam
2. Anbuselvi
3. N.Rajesh Kumar
4. N.Selvakumar
5. Arulbhavani
6. G.Sivaraj
7. Uma
8. Prema .. Respondents
Prayer : Original Side Appeal filed under clause 15 of the Letters Patent read with order XXXVI Rule 9 of the Original Side Rules to set aside the order, dated 23.03.2022 made in Appl.No.4115 of 2021 in C.S.No.326 of 2021 and reject the plaint in C.S.No.326 of 2021 with exemplary cost.
For Appellants : Mr.V.Raghavachari
for Mr.V.Balakrishnan
For Respondents : Mr.P.V.S.Giridhar
for Mr.K.Chandru
JUDGMENT D.BHARATHA CHAKRAVARTHY, J.
This Original Side Appeal is filed by the defendants, aggrieved by
the order of the learned Single Judge, dated 23.03.2022 in Appl.No.4115 of 2021 in C.S.No.326 of 2021, in and by which, the prayer made by the
appellants to reject the plaint is refused on the premise that the matter can
be decided only after a full fledged trial.
2. The subject matter property is an extent of 3600 Sq.ft bearing new Door No.167, old Door Nos.64 & 64/A, Annai Indira Nagar, Konnur High Road, Ayanavaram, Chennai – 600 023, comprised in survey No.71. Claiming ownership of the extent of 3600 Sq.ft and further claiming that of the 3600 Sq.ft, the plaintiff is in possession of an extent of about 1200 Sq.ft which is described as schedule-B in the plaint and claiming that some of the defendants are in possession of the rest of 2400 Sq.ft, which is described as schedule-C in the plaint, the suit in C.S.No.326 of 2021 was filed for the
following reliefs:-
“a) to declare that the 1st Plaintiffs is the absolute owner of Suit B Schedule Property;
b) to declare the Plaintiffs are the absolute owners of Suit C Schedule Property and direct the Defendants 7,9,10,11 & 16 to hand over and deliver vacant possession of the Suit C Schedule
Property to the plaintiffs;
c) to declare the Decree passed in O.S.No.4747 of 1977 on 12.09.2007 by the VI Assistant City Civil Court, Chennai, does not pertain and bind to the Properties comprised in T.S.No.71/1, morefully described in the Schedule A comprised of B & C hereunder;
d) for permanent injunction restraining the defendant/s, their men, agents, servants, representatives or any one claiming through him/her/them or in trust for him/her/them, from in any manner distributing plaintiff’s peaceful possession and enjoyment over the Suit Schedule
B & C Property;
e) for the costs of the suit; and ”
3. Of the said reliefs, it is now submitted across the bar that the
suit is not pressed in respect of the relief ‘c’. A perusal of the plaint states that originally, one Gangammal purchased 7 1/2 grounds of property comprised in T.S.No.71 under sale deed, dated 16.07.1923. She adopted one M.Gurunathan as her son and Nagendiammal as her daughter. The plaint further states that of the 7 1/2 grounds, 3 1/4 grounds were allotted to Nagendiammal and 4 1/4 grounds were allotted to Gurunathan. The plaint further states that the said extent of 3 1/4 grounds was sub-divided as T.S.No.71/2 and 4 1/4 grounds was sub-divided as T.S.No.71/1. It further states that of the 4 1/4 grounds, the legal heirs of the said Gurunathan sold an extent of 6600 Sq.ft and a balance of 3600 Sq.ft is the schedule property in the suit. Thereafter, from paragraph No.9 onwards, the plaint states out in detail as to the litigation between Gurunathan and Ethirajan (who also claimed himself as adopted by Gangammal). It states that the said Gurunathan and Ethirajan had dispute in respect of the joint patta issued to the extent of 3 grounds and 356 Sq.ft in respect of T.S.No.71/2. Thereafter, the plaint states about O.S.No.9003 of 1973, filed by Gurunathan, claiming an extent of 740 Sq.ft and it is also mentioned in the plaint that the said suit
was dismissed and an Appeal Suit filed against the same was also
dismissed. Thereafter, the plaint states about the suit filed by Ethirajan in
O.S.No.4747 of 1977, claiming half share in respect of the lands comprised in T.S.No.71/2 and T.S.No.71/S (71/3) against the said Gurunathan. A preliminary decree was passed on 18.07.1983. An Appeal Suit was filed in
A.S.No.384 of 1984 by the legal heirs of Gurunathan, since the said Gurunathan died, was dismissed. The Second Appeal preferred by the legal heirs of the said Gurunathan (the present plaintiffs) was allowed. However, the legal heirs of the said Ethirajan (the present defendants) filed Civil Appeal No.8720 of 1997 before the Hon’ble Supreme Court of India and the Hon’ble Supreme Court of India set aside the judgment in the Second Appeal and restored the decree passed by the Trial Court.
4. In paragraph No.12, the plaint states that thereafter, a final
decree application was once again filed in the year 1984. Again Appeal Suit in A.S.No.519 of 2008 was preferred by one Venkatesan, one of the purchaser of the plaintiffs. The Appeal Suit was also disposed off with some modifications in the final decree. Aggrieved by the said judgment in Appeal Suit, the defendants in the suit filed S.A.No.714 of 2012. In the said Second Appeal, the plaintiffs filed M.P.No.1 of 2014 for reception of additional documents which was dismissed on 13.11.2014 and the Second Appeal was allowed. Against the said judgment in Second Appeal, the plaintiffs preferred in S.L.P (C).No.13018 of 2015 and the same was dismissed as withdrawn with liberty to file Review Applications. Thereafter, Review Applications were also filed and the same was also
dismissed.
5. The plaint then proceeds to state about the Execution Petition in E.P.No.1247 of 2015 and the plaintiffs filed a petition under Section 47 of the Code of Civil Procedure before the Execution Court and the same was dismissed. Thereafter, the plaintiffs, once again, filed E.A.No.2491 of 2017 for appointment of a fresh Advocate Commissioner to locate the property and file a report as there is no property in T.S.No.71/S and further, the property in T.S.No.71/1 was sub-divided and since there is no decree against T.S.No.71/1, the said E.A.No.2491 of 2017 was also dismissed on
20.09.2017. The plaintiffs had, once again, filed an application in E.A.SR.No.36796 of 2021 which was rejected at the SR stage as the earlier petition for similar prayer has been dismissed. Therefore, the plaintiffs would state that the suit property is not at all covered in the earlier decree and therefore, filed the present suit. The cause of action in paragraph No.24 clearly mentions the above detail.
6. In the said background, the defendants in the suit filed the
present application under Order VII Rule 11 of the Code of Civil Procedure stating that all along the self-same contentions raised by the plaintiffs in the final decree proceedings in the earlier suit and the issue was specifically raised in the Second Appeal and was answered. The judgment in the Second Appeal was confirmed by the Hon’ble Supreme Court of India. Thereafter, the issue has been raised three times in the execution proceedings and while the defendants/plaintiffs are suffering in the Execution Petition in respect of the suit which is filed in the year 1977, once again, for the same issue, the present suit is filed and therefore, the suit is expressly barred as hit by Section 11 of the Code of Civil Procedure as res
judicata and the plaintiffs does not have the cause of action at all.
7. The application was resisted only on the ground that neither the
survey No.71/1 is expressly mentioned in the schedule to the earlier
proceedings nor the extent is mentioned. Therefore, it is contended that the
property is not covered by the earlier proceedings.
8. The learned Single Judge, after considering the said
submissions, had dismissed the application on the finding that as far as the application under Order VII Rule 11 of the Code of Civil Procedure is concerned, the Court has to look into only the averments of the plaint and in view of the long drawn dispute, the suit can be disposed only after full fledged trial. The reasonings of the learned Single Judge are contained in
the paragraph Nos.11 and 12 of the judgment under appeal.
9. The learned Counsel appearing on either side reiterated the self-
same submissions made by them before the learned Single Judge. We have considered the submissions made on either side and perused the material records of the case. At the outset, there can be no two opinions about the proposition of law stated by the learned Single Judge in paragraph No.12 that while deciding the application under Order VII Rule 11 of the Code of Civil Procedure, the Court has to look into the averments in the plaint only. Upon looking into the averments of the plaint, it is clear that the property in the suit was claimed to be dealt with in the earlier decree and therefore, in the final decree proceedings, the plaintiffs herein claimed that they are in possession and enjoyment of another extent which should not be covered by the decree. The same was negatived by this Court in S.A.No.714 of 2012. The Hon’ble Supreme Court of India confirmed the judgment in the said
Second Appeal. As a matter of fact, the final decree proceedings, the very first paragraph of the objections filed by the plaintiffs herein reads as
follows:-
” 1. The report of the Advocate-
Commissioner did not locate the extent of T.S.No.71/2 measuring 3 Grounds and 536 sq.ft., the suit property. Instead of doing so, the Advocate-Commissioner has taken into consideration of the buildings put up by the proposed parties in T.S.No.71/1 measuring 1 ground 180 sq.ft.”
10. As a matter of fact, the proceedings of the earlier suit are filed
as plaint document Nos.4, 5, 8 to 11, 13, 20 to 22, 26 to 31 which clearly adumbrate the stand being repeatedly taken by the plaintiffs that the suit schedule property was not covered within the decree as it has a different survey No.71/1 and the same being repeatedly rejected by this Court, the Trial Court and the findings being confirmed by the Hon’ble Supreme Court of India. In that view of the matter, when the issue was between the same parties and decided by the competent Court already, the suit cannot be once again filed in respect of the self-same reliefs as the same is expressly barred by the principles of res judicata and hence expressly barred in law. The very entertainment of this plaint would only be an entertainment of a super appeal over the earlier orders in final decree proceedings, review proceedings and the execution proceedings. Therefore, the present suit is hopelessly barred and the plaintiffs do not have any cause of action whatsoever and the one which is mentioned is only that of the execution proceedings which cannot be a fresh or independent cause of action to file the present suit. Therefore, we are unable to agree with the learned Single Judge that once again a detailed trial has to be conducted to ascertain these facts which are mentioned in the plaint itself. To be more specific, paragraph Nos.17 to 19 of the plaint clearly admits the dismissal of applications under Section 47 of the Code of Civil Procedure, E.A.No.2491 of 2017, E.A.SR.No.36796 of 2021. Therefore, there is absolutely nothing in this case to relegate the parties to trial, which would only to prolong the agony of a decree holder of the suit of the year 1977. In this context, it is relevant to quote paragraph Nos.11.1 to 11.3 in the latest judgment of the Hon’ble Supreme Court of India in Sree Surya Developers and Promoters
Vs. N.Sailesh Prasad and Ors. , which reads as hereunder:-
” 11.1. As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
11.2. In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] , it is observed and held as under : (SCC p. 470, para 5)
“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High
Court, it is perfectly plain that the suit now pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to
irresponsible law suits.”
11.3. In Ram Singh v. Gram Panchayat Mehal Kalan [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364] , this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.” (emphasis supplied)
11. In the result,
(i) This Original Side Appeal in O.S.A.No.230 of 2022 stands
allowed;
(ii) The order of the learned Single Judge, dated 23.03.2022 in A.No.4115 of 2021 in C.S.No.326 of 2021 is set aside and said application on the file of this Court in A.No.4115 of 2021 in C.S.No.326 of 2021 stands
allowed. The plaint in C.S.No.326 of 2021 stands rejected;
(iii) The appellants shall be entitled for a sum of Rs.30,000/- as
costs.
(iv) Consequently, C.M.P.Nos.16049 and 13845 of 2022 are
closed.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 23.09.2022
Judgment Pronounced on : 28.09.2022
CORAM :
THE HON’BLE MR.JUSTICE PARESH UPADHYAY
AND
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.230 of 2022
1. E.Dhavamani
2. E.Gunamani
3. E.Jagadeesan
4. E.Lakshmi Sekar
5. B.Saroja
6. E.Jayaseelan
7. E.Rani Ethiraj alias E.Rani
8. E.Amudha
9. E.Bhaskar
10. E.Sridhar
11. E.Arul
12. E.Devatha
13. E.Karnal
14. E.Ebi
15. E.Chandra
16. E.Rajan17. E.Ponmudi
rep. by General Power of Attorney
E.Karnal .. Appellants
Versus
1. G.Sankarabushanam
2. Anbuselvi
3. N.Rajesh Kumar
4. N.Selvakumar
5. Arulbhavani
6. G.Sivaraj
7. Uma
8. Prema .. Respondents
Prayer : Original Side Appeal filed under clause 15 of the Letters Patent read with order XXXVI Rule 9 of the Original Side Rules to set aside the order, dated 23.03.2022 made in Appl.No.4115 of 2021 in C.S.No.326 of 2021 and reject the plaint in C.S.No.326 of 2021 with exemplary cost.
For Appellants : Mr.V.Raghavachari
for Mr.V.Balakrishnan
For Respondents : Mr.P.V.S.Giridhar
for Mr.K.Chandru
JUDGMENT D.BHARATHA CHAKRAVARTHY, J.
This Original Side Appeal is filed by the defendants, aggrieved by
the order of the learned Single Judge, dated 23.03.2022 in Appl.No.4115 of 2021 in C.S.No.326 of 2021, in and by which, the prayer made by the
appellants to reject the plaint is refused on the premise that the matter can
be decided only after a full fledged trial.
2. The subject matter property is an extent of 3600 Sq.ft bearing new Door No.167, old Door Nos.64 & 64/A, Annai Indira Nagar, Konnur High Road, Ayanavaram, Chennai – 600 023, comprised in survey No.71. Claiming ownership of the extent of 3600 Sq.ft and further claiming that of the 3600 Sq.ft, the plaintiff is in possession of an extent of about 1200 Sq.ft which is described as schedule-B in the plaint and claiming that some of the defendants are in possession of the rest of 2400 Sq.ft, which is described as schedule-C in the plaint, the suit in C.S.No.326 of 2021 was filed for the
following reliefs:-
“a) to declare that the 1st Plaintiffs is the absolute owner of Suit B Schedule Property;
b) to declare the Plaintiffs are the absolute owners of Suit C Schedule Property and direct the Defendants 7,9,10,11 & 16 to hand over and deliver vacant possession of the Suit C Schedule
Property to the plaintiffs;
c) to declare the Decree passed in O.S.No.4747 of 1977 on 12.09.2007 by the VI Assistant City Civil Court, Chennai, does not pertain and bind to the Properties comprised in T.S.No.71/1, morefully described in the Schedule A comprised of B & C hereunder;
d) for permanent injunction restraining the defendant/s, their men, agents, servants, representatives or any one claiming through him/her/them or in trust for him/her/them, from in any manner distributing plaintiff’s peaceful possession and enjoyment over the Suit Schedule
B & C Property;
e) for the costs of the suit; and ”
3. Of the said reliefs, it is now submitted across the bar that the
suit is not pressed in respect of the relief ‘c’. A perusal of the plaint states that originally, one Gangammal purchased 7 1/2 grounds of property comprised in T.S.No.71 under sale deed, dated 16.07.1923. She adopted one M.Gurunathan as her son and Nagendiammal as her daughter. The plaint further states that of the 7 1/2 grounds, 3 1/4 grounds were allotted to Nagendiammal and 4 1/4 grounds were allotted to Gurunathan. The plaint further states that the said extent of 3 1/4 grounds was sub-divided as T.S.No.71/2 and 4 1/4 grounds was sub-divided as T.S.No.71/1. It further states that of the 4 1/4 grounds, the legal heirs of the said Gurunathan sold an extent of 6600 Sq.ft and a balance of 3600 Sq.ft is the schedule property in the suit. Thereafter, from paragraph No.9 onwards, the plaint states out in detail as to the litigation between Gurunathan and Ethirajan (who also claimed himself as adopted by Gangammal). It states that the said Gurunathan and Ethirajan had dispute in respect of the joint patta issued to the extent of 3 grounds and 356 Sq.ft in respect of T.S.No.71/2. Thereafter, the plaint states about O.S.No.9003 of 1973, filed by Gurunathan, claiming an extent of 740 Sq.ft and it is also mentioned in the plaint that the said suit
was dismissed and an Appeal Suit filed against the same was also
dismissed. Thereafter, the plaint states about the suit filed by Ethirajan in
O.S.No.4747 of 1977, claiming half share in respect of the lands comprised in T.S.No.71/2 and T.S.No.71/S (71/3) against the said Gurunathan. A preliminary decree was passed on 18.07.1983. An Appeal Suit was filed in
A.S.No.384 of 1984 by the legal heirs of Gurunathan, since the said Gurunathan died, was dismissed. The Second Appeal preferred by the legal heirs of the said Gurunathan (the present plaintiffs) was allowed. However, the legal heirs of the said Ethirajan (the present defendants) filed Civil Appeal No.8720 of 1997 before the Hon’ble Supreme Court of India and the Hon’ble Supreme Court of India set aside the judgment in the Second Appeal and restored the decree passed by the Trial Court.
4. In paragraph No.12, the plaint states that thereafter, a final
decree application was once again filed in the year 1984. Again Appeal Suit in A.S.No.519 of 2008 was preferred by one Venkatesan, one of the purchaser of the plaintiffs. The Appeal Suit was also disposed off with some modifications in the final decree. Aggrieved by the said judgment in Appeal Suit, the defendants in the suit filed S.A.No.714 of 2012. In the said Second Appeal, the plaintiffs filed M.P.No.1 of 2014 for reception of additional documents which was dismissed on 13.11.2014 and the Second Appeal was allowed. Against the said judgment in Second Appeal, the plaintiffs preferred in S.L.P (C).No.13018 of 2015 and the same was dismissed as withdrawn with liberty to file Review Applications. Thereafter, Review Applications were also filed and the same was also
dismissed.
5. The plaint then proceeds to state about the Execution Petition in E.P.No.1247 of 2015 and the plaintiffs filed a petition under Section 47 of the Code of Civil Procedure before the Execution Court and the same was dismissed. Thereafter, the plaintiffs, once again, filed E.A.No.2491 of 2017 for appointment of a fresh Advocate Commissioner to locate the property and file a report as there is no property in T.S.No.71/S and further, the property in T.S.No.71/1 was sub-divided and since there is no decree against T.S.No.71/1, the said E.A.No.2491 of 2017 was also dismissed on
20.09.2017. The plaintiffs had, once again, filed an application in E.A.SR.No.36796 of 2021 which was rejected at the SR stage as the earlier petition for similar prayer has been dismissed. Therefore, the plaintiffs would state that the suit property is not at all covered in the earlier decree and therefore, filed the present suit. The cause of action in paragraph No.24 clearly mentions the above detail.
6. In the said background, the defendants in the suit filed the
present application under Order VII Rule 11 of the Code of Civil Procedure stating that all along the self-same contentions raised by the plaintiffs in the final decree proceedings in the earlier suit and the issue was specifically raised in the Second Appeal and was answered. The judgment in the Second Appeal was confirmed by the Hon’ble Supreme Court of India. Thereafter, the issue has been raised three times in the execution proceedings and while the defendants/plaintiffs are suffering in the Execution Petition in respect of the suit which is filed in the year 1977, once again, for the same issue, the present suit is filed and therefore, the suit is expressly barred as hit by Section 11 of the Code of Civil Procedure as res
judicata and the plaintiffs does not have the cause of action at all.
7. The application was resisted only on the ground that neither the
survey No.71/1 is expressly mentioned in the schedule to the earlier
proceedings nor the extent is mentioned. Therefore, it is contended that the
property is not covered by the earlier proceedings.
8. The learned Single Judge, after considering the said
submissions, had dismissed the application on the finding that as far as the application under Order VII Rule 11 of the Code of Civil Procedure is concerned, the Court has to look into only the averments of the plaint and in view of the long drawn dispute, the suit can be disposed only after full fledged trial. The reasonings of the learned Single Judge are contained in
the paragraph Nos.11 and 12 of the judgment under appeal.
9. The learned Counsel appearing on either side reiterated the self-
same submissions made by them before the learned Single Judge. We have considered the submissions made on either side and perused the material records of the case. At the outset, there can be no two opinions about the proposition of law stated by the learned Single Judge in paragraph No.12 that while deciding the application under Order VII Rule 11 of the Code of Civil Procedure, the Court has to look into the averments in the plaint only. Upon looking into the averments of the plaint, it is clear that the property in the suit was claimed to be dealt with in the earlier decree and therefore, in the final decree proceedings, the plaintiffs herein claimed that they are in possession and enjoyment of another extent which should not be covered by the decree. The same was negatived by this Court in S.A.No.714 of 2012. The Hon’ble Supreme Court of India confirmed the judgment in the said
Second Appeal. As a matter of fact, the final decree proceedings, the very first paragraph of the objections filed by the plaintiffs herein reads as
follows:-
” 1. The report of the Advocate-
Commissioner did not locate the extent of T.S.No.71/2 measuring 3 Grounds and 536 sq.ft., the suit property. Instead of doing so, the Advocate-Commissioner has taken into consideration of the buildings put up by the proposed parties in T.S.No.71/1 measuring 1 ground 180 sq.ft.”
10. As a matter of fact, the proceedings of the earlier suit are filed
as plaint document Nos.4, 5, 8 to 11, 13, 20 to 22, 26 to 31 which clearly adumbrate the stand being repeatedly taken by the plaintiffs that the suit schedule property was not covered within the decree as it has a different survey No.71/1 and the same being repeatedly rejected by this Court, the Trial Court and the findings being confirmed by the Hon’ble Supreme Court of India. In that view of the matter, when the issue was between the same parties and decided by the competent Court already, the suit cannot be once again filed in respect of the self-same reliefs as the same is expressly barred by the principles of res judicata and hence expressly barred in law. The very entertainment of this plaint would only be an entertainment of a super appeal over the earlier orders in final decree proceedings, review proceedings and the execution proceedings. Therefore, the present suit is hopelessly barred and the plaintiffs do not have any cause of action whatsoever and the one which is mentioned is only that of the execution proceedings which cannot be a fresh or independent cause of action to file the present suit. Therefore, we are unable to agree with the learned Single Judge that once again a detailed trial has to be conducted to ascertain these facts which are mentioned in the plaint itself. To be more specific, paragraph Nos.17 to 19 of the plaint clearly admits the dismissal of applications under Section 47 of the Code of Civil Procedure, E.A.No.2491 of 2017, E.A.SR.No.36796 of 2021. Therefore, there is absolutely nothing in this case to relegate the parties to trial, which would only to prolong the agony of a decree holder of the suit of the year 1977. In this context, it is relevant to quote paragraph Nos.11.1 to 11.3 in the latest judgment of the Hon’ble Supreme Court of India in Sree Surya Developers and Promoters
Vs. N.Sailesh Prasad and Ors. , which reads as hereunder:-
” 11.1. As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
11.2. In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] , it is observed and held as under : (SCC p. 470, para 5)
“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High
Court, it is perfectly plain that the suit now pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to
irresponsible law suits.”
11.3. In Ram Singh v. Gram Panchayat Mehal Kalan [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364] , this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.” (emphasis supplied)
11. In the result,
(i) This Original Side Appeal in O.S.A.No.230 of 2022 stands
allowed;
(ii) The order of the learned Single Judge, dated 23.03.2022 in A.No.4115 of 2021 in C.S.No.326 of 2021 is set aside and said application on the file of this Court in A.No.4115 of 2021 in C.S.No.326 of 2021 stands
allowed. The plaint in C.S.No.326 of 2021 stands rejected;
(iii) The appellants shall be entitled for a sum of Rs.30,000/- as
costs.
(iv) Consequently, C.M.P.Nos.16049 and 13845 of 2022 are
closed.
(P.U., J.) (D.B.C., J.)
28.09.2022
Index : yes
Speaking order
grs
PARESH UPADHYAY, J. and D.BHARATHA CHAKRAVARTHY, J.
grs

Pre-Delivery Judgment in
O.S.A.No.230 of 2022
28.09.2022
(P.U., J.) (D.B.C., J.)
28.09.2022
Index : yes
Speaking order
grs
PARESH UPADHYAY, J. and D.BHARATHA CHAKRAVARTHY, J.
grs

Pre-Delivery Judgment in
O.S.A.No.230 of 2022
28.09.2022

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