Vasagam vs Jothi and Parameshwari

G. Rajasuria, J.—This Civil Revision Petition has been filed to get set aside the order dated 18.02.2011, passed in I.A. No. 16 of 2011 in

O.S. No. 53 of 2010, by the learned Subordinate Judge, Aruppukkottai. Heard both sides.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status before the trial Court.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:

The second defendant herein viz., Vasagam filed an application under Order VII Rule 11 of the CPC for getting the plaint rejected, on the main

ground that there was no cause of action disclosed in the plaint and the Court fees paid after valuing the suit was also erroneous. However, the

plaintiffs viz., Jothi and Parameshwari, who are the respondents herein resisted the said application. After hearing both sides, the trial Court

dismissed that application.

Being aggrieved by and dissatisfied with the order passed by the lower Court, the Civil Revision Petition has been focussed on various grounds.

The learned Counsel for the revision petitioner placing reliance on the grounds of the revision petition, would pyramid his arguments, which

could pithily and precisely be set out thus:

After the death of Periyakaruppa Thevar, the father of the plaintiffs and the defendants, his sons viz., the defendants 1 and 2 got the partition

effected in respect of those properties, in the year 1977 itself. In fact, it was the second defendant, who spent money for solemnising the respective

marriages of the plaintiffs. As such, absolutely there is no cause of action as found set out in the plaint. Over and above that, in as much as there

was no joint possession, as a sequela, the valuation made in the plaint is obviously erroneous.

The point for consideration is as to whether there is any perversity or illegality in the conditional order passed by the trial Court?

The Point:

I would like to recollect the following decision of the Honourable Apex Court in Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and

Another, .

A mere running of the eye over the said precedent, would reveal that virtually the Hindu Succession (Amendment) Act, 2005, is having

retrospective effect and obviously, in this case, there is no registered partition also emerged between Poosaimani and Vasagan, after the death of

Periyakaruppa Thevar.

In such a case, a serious legal issue based on Hindu Law concept involved and that could not be brought within the narrow campus of Order VII

Rule 11 of the CPC and the parties should go the whole hog in conducting trial and ultimately the Court has to render its decision. On the one

hand, the plaintiffs would contend that they are in joint possession of the properties concerned; whereas the contesting the second defendant

pleaded otherwise. This also has to be dealt with after entertaining full evidence both oral and documentary. The lower Court correctly analysed

the matter and held that the serious issue relating to Hindu law cannot be dealt with under Order VII Rule 11 of the Code of Civil Procedure,

wherefore no interference with the order is warranting in this Civil Revision Petition.

The learned Counsel for the revision petitioner would submit that items 1 to 3 of the suit properties are not the properties of Periyakaruppa

Thevar himself, or the family properties. The plaintiffs also admitted that factual position, whereupon the trial Court also recorded the same. In such

a case, there is no need to interfere with the order passed by the trial Court.

The point is answered accordingly.

On balance, this Civil Revision Petition is dismissed. Consequently the connected miscellaneous petition is dismissed. No costs. The learned

Counsel for the revision petitioner would make an extempore submission that a time limit may be fixed for the early disposal of the matter. Hence, I

would like to mandate the lower Court that the matter should be disposed of within a period of four months from the date of receipt of a copy of

this order.