M/s. Savorit Limited vs M/s. J.K.R. Cargo Handling

T. Mathivanan, J.—Invoking the provisions of Article 227 of the Constitution of India, this memorandum of civil revision is preferred by the

petitioner, who is the defendant in the suit in O.S. No. 3462 of 2013 on the file of the learned VII Assistant Judge, City Civil Court, Chennai,

seeking the relief of striking down the plaint in O.S. No. 3462 of 2013. It is manifested from the records that the revision petitioner herein is the

landlord in respect of the property specified in the plaint schedule. The respondent herein is the tenant.

A lease agreement was entered to between the revision petitioner/landlord and the respondent/tenant in respect of the demised portion and the

duration of lease was determined as three years reckoning from 1.8.2009 to 31.7.2012. The monthly rent was fixed at Rs. 39,063/- and besides

this, a sum of Rs. 25000/- was agreed to be paid by the respondent/tenant towards the maintenance charges.

When the demised portion was required for the own use and occupation of the revision petitioner/company, he had at the first instance issued a

notice on 17.3.2013 to the respondent herein and thereby the respondent was put on notice to deliver the vacant possession.

Soon after the receipt of the said notice, the respondent had filed a suit in O.S. No. 3616 of 2011 seeking the relief of bare injunction not to

evict him excepting by due process of law.

During the pendency of the said suit, the revision petitioner had filed a petition in R.C.O.P. No. 1319 of 2011 on the file of the learned Rent

Controller (XIII Judge), Court of Small Causes, Chennai. When the revision petition was pending, the respondent had entered into a compromise

with the revision petitioner/landlord on 17.11.2011 and thereby the respondent had undertaken and assured to vacate the demised portion on or

before 30.6.2013.

The said memorandum of compromise was recorded in the petition in R.C.O.P. No. 1319 of 2011 and in consequence thereof, that petition

was closed with liberty to the revision petitioner/landlord to proceed further, in case, the respondent/tenant fails to comply with the terms of the

memorandum of compromise.

When the matter stood thus, the respondent/tenant had issued a notice in the month of June 2013 to the revision petitioner/landlord and thereby,

he had refused to vacate the premises and proceeded to file another suit in O.S. No. 3462 of 2013 on the file of the VII Assistant Judge, City Civil

Court, Chennai, for the very same relief as he had claimed in the previous suit in O.S. No. 3616 of 2011.

According to Mr. Lakshmi Narayanan, learned counsel appearing for the revision petitioner, the tactics adopted by the respondent/tenant is

nothing but a gross abuse of process of law in order to defeat the justice.

He has also maintained that the suit in O.S. No. 3616 of 2011 which was filed by the revision petitioner/tenant prior to the filing of the R.C.O.P.

No. 1319 of 2011 is still pending.

However, without obtaining any permission from the court as contemplated under the provisions of Order 23 Rule 1 of C.P.C. to withdraw the

previous suit, viz., O.S. No. 3616 of 2011 with liberty to file a fresh suit for the very same cause of action, the respondent/tenant had abused the

process of law and thereby deliberately proceeded to file another suit in O.S. No. 3462 of 2013 as against the revision petitioner/landlord for the

very same relief, i.e. bare injunction as he had sought for in the previous suit in O.S. No. 3616 of 2011 and therefore, he has submitted that the

petitioner was constrained to file this revision petition under the provision of Article 227 of the Constitution of India to exercise the supervising

power of this Court to strike down the plaint in O.S. No. 3616 of 2011, which is now pending on the file of the VII Assistant Judge, City Civil

Court, Chennai.

In support of his contention, he has placed reliance upon the following two decisions:--

a. RM. Subbiah Vs. S. Ramakrishnan, S. Ratnam and The Commissioner, Corporation of Chennai, Chennai - 600003, .

b. N. Babu Vs. S. Shanmugam and Others, .

In A.M. Subbiah''s case, first cited supra, the petitioner therein had filed a revision petition under Article 227 of the Constitution of India for

striking off the suits. The suit was filed for specific performance of contract of sale by the revision petitioner therein. That was decreed. The appeal

preferred by the respondent against the said decree was dismissed. The second appeal as well as the Special Leave Petitions were also dismissed.

Simultaneously, a separate suit was filed by the respondent claiming injunction restraining the petitioner from interfering with his possession.

That suit was also dismissed and the findings of the dismissal were confirmed by the Apex Court. Then execution petition was filed and during the

pendency of the execution proceedings, the respondent had taken out several applications which were all dismissed and the appeals thereon also

came to be dismissed. Eventually, the respondent had filed a separate suit for permanent injunction against the revision petitioner from alienating the

suit property and another suit was also filed for declaration.

Under these circumstances, the above said revision petition came to be filed and after hearing both sides, the learned Single Judge of this Court

has held that normally a Plaint cannot be rejected exercising the power under Article 227 of the Constitution. However, if a party comes to the

Court with unclean hands and re-agitate the matter again and again, the Courts are not powerless to exercise its discretion in putting a full stop to

the same. The suits that have been filed by the First Respondent is a glaring example where the Courts have to exercise its power to stop the First

Respondent from proceeding with the matter endlessly. There is no rhyme or reason to allow the First Respondent to proceed with the suit in spite

of the fact that in various proceedings initiated at his instance he has lost in all the forums and ultimately, the learned Judge has found that all the

suits are liable to be struck off. Accordingly, the said petition was allowed.

In the decision, second cited supra, viz., N. Babu''s case, another learned Single Judge of this Court has held that the plaint in subsequent suit,

in case of relitigation to be struck off by the Court at the earliest instance and the filing of the subsequent suit is abuse of process of Court and not

to be encouraged.

Mr. M.L. Joseph, learned counsel appearing for the respondent has vigorously opposed the arguments advanced on behalf of the petitioner

and would contend that the suits filed by the respondent before the above said court as against the revision petitioner are absolutely maintainable

and does not require the intervention of this Court to strike off the plaints therein.

It is to be pointed out that during the pendency of the rent control proceedings, a memorandum of compromise was filed by both the revision

petitioner/landlord as well as the respondent/tenant.

On perusal of the memorandum of compromise, dated 17.11.2011 it is revealed that under Clause No. 1, it has been stated that the Party of

Second Part (respondent/tenant) shall vacate and handover the demised vacant land situated at No. 22 (Old No. 3 A) North Terminus Road,

Tollgate, Chennai-81, premises on or before 30.6.2013. In Clause No. 5, the respondent/tenant has given an undertaking that he shall withdraw

the suit in O.S. No. 3616 of 2011.

Similarly, at Page No. 3 of the said memorandum of compromise, the respondent/tenant has given an undertaking that he shall vacate and

handover the demised godown No. R14 situated at No. 22, (Old No. 3A) North Terminus Road, Tollgate, Chennai 600 081, premises on or

before 31.1.2012 by paying all the rents and charges etc. till that date.

While recording this memorandum of compromise filed by both the parties, the learned Rent Controller has proceeded to dismiss the petition in

R.C.O.P. No. 1319 of 2011 as the matter was settled out of Court.

The learned Rent Controller, while passing the order, has given a liberty to the revision petitioner/landlord to proceed further in case of non

compliance of the terms of compromise. Now it appears that in total negation of the terms of the joint memorandum of compromise, the

respondent/tenant had refused to vacate the premises and apart from this, he had filed another suit in O.S. No. 3462 of 2013 on the file of the VII

Assistant Judge, City Civil Court, Chennai, for the very same relief as he had sought for in O.S. No. 3616 of 2011 which was filed as against the

revision petitioner/landlord.

In exercise of jurisdiction under Article 227 of the Constitution of India, the High Court can stretch its hand over the subordinate judiciary in

cases of:--

a. Erroneous assumption or excess of jurisdiction.

b. Refusal to exercise jurisdiction.

c. Error of law apparent on the face of the record but not in concurrent findings of fact as distinguished from a mere mistake of law or error of law

relating to jurisdiction.

d. Violation of the principles of natural justice.

e. Arbitrary or capricious exercise of authority, of discretion.

f. Arriving at a finding which is perverse or based on no material.

g. A patent or flagrant error in procedure.

h. Order resulting in manifest injustice.

i. Error both on facts and in law or even otherwise.

On coming to the instant case on hand, the conduct of the respondent/tenant as well as the learned VII Assistant Judge, City Civil Court,

Chennai in exercising his powers to take the suit in O.S. No. 3462 of 2013 on his file when a similar suit for the very same relief is pending on his

file in O.S. No. 3616 of 2011, are to be construed absolutely as a clear abuse of process of court as well as law.

As rightly categorised as above under Clauses - (e, f, g, h and i), the act of the Court below appears to be arbitrary or capricious exercise of

authority or discretion as well as error both on facts and in law or even otherwise. The above dictum has been envisaged in the following cases.

a. Santosh Kumar Vs. Bhai Mool Singh, .

b. Nibaran Chandra Bag etc. Vs. Mahendra Nath Ghughu, .

c. Trimbak Gangadhar Telang and Another Vs. Ramchandra Ganesh Bhide and Others, .

d. State of Kerala and Others Vs. K. Sarojini Amma and Others, .

This Court has carefully perused the grounds of the revision petition as well as other materials available on record. This Court has also

considered the submissions made on behalf of both sides.

It appears that the respondent/tenant has never chosen to file an application seeking permission of the court to withdraw the suit in O.S. No.

3616 of 2011 with liberty to file a fresh suit for the very same cause of action, instead, he has filed another suit in O.S. No. 3462 of 2013 for the

very same relief as well as against the very same person and also in respect of the very same property.

The terms of the joint memorandum of compromise filed by both the revision petitioner and respondent have not been complied with by the

respondent/tenant despite the order passed by the learned Rent Controller and therefore, this Court finds that as envisaged in D.N. Banerji Vs.

P.R. Mukherjee and Others, and Waryam Singh and Another Vs. Amarnath and Another, , it is the settled proposition that the power of

''Superintendence'' conferred upon the High Court by Article 227 is not confined to administrative superintendence only, but includes the power of

judicial revision also even where no appeal or revision lies to the High Court under the ordinary law, rather power under this Article is wider than

that of Article 226 in the sense that it is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari

jurisdiction and can be exercised suo motu.

Keeping in view of the above facts, this Court finds that it may be better to allow this petition and strike off the plaint in O.S. No. 3642 of

2011 pending on the file of the learned VII Assistant Judge, City Civil Court, Chennai. Accordingly, the revision petition is allowed. The plaint in

O.S. No. 3462 of 2013, which is pending on the file of the learned VII Assistant Judge, City Civil Court, Chennai, is struck off. However, there

will be no order as to costs. Connected M.P. is closed.