(Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the fair and decreetal order, dated 19.06.2014 made in I.A.No.3936 of 2014 in O.S.No.6891 of 2013 on the file of the IV Assistant City Civil Court, Chennai.)

1. The defendant is the Revision Petitioner. The Civil Revision Petition has been filed, challenging the dismissal of the petition to reject the plaint in I.A.No.3936 of 2014.

2. The plaintiff filed a suit in O.S.No.6891 of 2013 seeking the (a) relief of delivery of vacant possession of property (entire first floor) bearing Old No.37, New No.16, III Cross Street, Mandavelipakkam, Chennai 600 028; (b) claiming a sum of Rs.25,000/- per month as rent / damages for use and occupation and (c) relief of injunction restraining the defendants from subletting the property.

3. Brief facts:-

(i) The suit property originally belonged to one Arockiaswamy, who is the grandfather of the plaintiff and the father of the defendant. Arockiaswamy had three daughters, by name, Marita Vasanthi, Blis Marry @ Nalini and Jacqueline.

(ii) The suit property is claimed to be the self-acquired property of the defendants father, having purchased the same from the Housing Board, through a sale deed, dated 21.02.1976.

(iii) Defendants father died on 19.05.2005.

(iv) The defendant and three other sisters executed a release deed, dated 20.12.2005, in favour of the plaintiffs father, Augustian, and thereby he became the absolute owner of the property.

(v) The plaintiffs father executed a settlement deed, dated 25.08.2010, in favour of the plaintiff, which was accepted and acted upon.

(vi) The defendant was in permissive occupation of the property and permission has been revoked through a legal notice, dated 18.06.2013 and later on, as the property was not vacated, suit for delivery of possession has been filed.

4. So far as the defendant is concerned, it is her case that the release deed, dated 20.12.2005 was obtained by plaintiffs father by exercising undue influence, coercion and deception. When these facts came to the knowledge of the defendant, she cancelled the lease deed, by way of cancellation deed, dated 08.08.2012. It is contended by the defendant / respondent herein that in view of the cancellation of the release deed, the defendant became the co-parcener/co-owner of the suit property and therefore, there was no cause of action for filing the suit for delivery of possession.

5. The defendant has filed an Interim Application in I.A.No.3936 of 2014 to reject the plaint on the following contentions:-

(i) The claim of absolute ownership and the recovery of possession made on the basis of the claim made in the plaint are not maintainable.

(ii) There is no cause of action for the suit and the alleged cause of action does not exist as against the joint owner.

(iii) The plaintiff, having relied upon the release deed, dated 20.12.2005, executed by the defendant, has deliberately suppressed the cancellation deed, executed by the defendant on 08.08.2012.

6. In order to appreciate the contentions raised, it is necessary to look into the decisions relied upon by learned counsel on both sides.

7. The learned counsel for the respondent / plaintiff contended that the grounds for rejection of plaint were neither available nor established and therefore, the court below rightly dismissed the petition to reject the plaint and hence, the Revision Petition is liable to be dismissed. In order to support the proposition that no case for rejection of the plaint has been made out by the defendant and explaining the distinction between dismissal of the suit on the question of maintainability or based on any other preliminary issue operates as a bar for a fresh suit on the same cause of action, and it is not so, in the case of rejection of plaint, an unreported decision, dated 08.01.2013, rendered in S.A.No.711 of 2009 (A.Arumugam v. P.R.Palanisamy) is relied upon by the learned counsel for the plaintiff / respondent herein, where-under this Court has pointed out that the defence plea shall not be taken into account at the stage of consideration of rejection of the plaint. The relevant observation in the decision, cited supra, reads thus:-

9. ...

11. Rejection of plaint The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff....

....

13. Where rejection of plaint does not preclude presentation of fresh plaint The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. ....

7.1. Yet another decision relied upon by the learned counsel for the plaintiff / respondent herein is the one in W.P.No.17983 of 2011 (E.R.Jothieswari v. Sarojini and others) whereunder it has been held as follows:-:-

10. Since serious disputed facts are involved in these cases and it is contended that the second respondent is empowered to revoke the settlement under the provisions of Chapter-VII of the Transfer of Property Act, 1882, I am of the view that the writ petitions filed with the above prayer are not maintainable and the petitioners can only approach the Civil Court."

7.2. Relying upon these two decisions, it is vehemently contended by the learned counsel for the respondent / plaintiff that the proper remedy open to the defendant is to meet the case on merits, as there are disputed questions of fact, and not to file an application to reject the plaint.

8. On the other hand, in order to support the contention that the plaint is liable to be rejected, the learned counsel for the defendant / revision petitioner relies upon the following decisions and the relevant reasoning/observation of this Court reads thereafter:-

8.1. (1994) 1 Supreme Court Cases 1 [LQ/SC/1993/933] (S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others):-

6. ... Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. ...... A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.

8.2. This decision, i.e., S.P.Chengalvaraya Naidus case, will not help the case of the defendant, because the impact of non-mentioning of the cancellation of release deed or with-holding of a vital document, cannot be visualised or considered at this stage. The stage to be considered, even as per the decision reported above, is the stage of trial.

8.3. Contending that the plaint should be read in a meaningful way and not in a superficial way, in order to find out whether the plaint is liable to be rejected or not, the decision reported in (1977) 4 SCC 467 [LQ/SC/1977/296] (T.Arivandandam v. T.V.Satyapal) is relied upon. The relevant observation reads as under:-

5. ...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, be should exercise his power under Or. VII r. 1 1 C.P.C. 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 X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage.....

8.4. This decision, i.e., T.Arivandandams case, is more applicable to the stand taken by the defendant and the defendant ought to have given a meaningful reading to the plaint rather than a formal reading.

8.5. Contending that omission of a single material fact leads to an incomplete cause of action and as the plaintiff omitted to mention the material fact of cancellation of release deed, the statement of claim, made in the plaint becomes bad, the decision reported in (2007) 7 SCC 148 [LQ/SC/2007/919] (Sandeep Polymers (P) Ltd., v. Bajaj Auto Ltd., and Others), has been relied upon.

The dictum of Scott, L.J. in Bruce case (supra) has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez (1969 (3) SCC 238 [LQ/SC/1969/63] ), and the distinction between "material facts" and "particulars" was brought out in the following terms:

The word material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet".

Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word shall is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.....

8.6. The plaintiff is expected to state particulars to the extent of making the defendant to understand the case, she will have to meet. So far as this case is concerned, the defendant seems to have understood the case she has to meet and therefore, the contention that there is incomplete particulars and thereby there is incomplete cause of action cannot be accepted. 8.7. Contending that the plaintiff is using the litigation only to harass the defendant and therefore, the plaint should be rejected, the decision reported in (2008) 12 SCC 661 [LQ/SC/2008/1019] (Kamala v. K.T.Eshwara Sa) is relied upon. The essential observation reads as under:

40. .... Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the courts resources being used up on cases which will serve no useful purpose. A litigation which in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant. [See Azhar Hussain v. Rajiv Gandhi (1986) Supp SCC 315 [LQ/SC/1986/152] " at pp. 324-35]

8.8. The principles enunciated in this case, i.e., Kamalas case, cannot be disputed. But the question is, whether the litigation initiated by the plaintiff has been used as a device to harass the defendant. A perusal of the plaint averment did not go to show that the plaint has been filed only with an intention to harass the defendant. There are facts, which are alleged by the plaintiff, which is disputed by the defendant, would go to show that there are triable issues.

8.9. Emphasising that the Judge has to play an active role and not a passive role, and that if an active role is adopted, the plaint ought to have been rejected, the decision reported in (2012) 5 SCC 370 [LQ/SC/2012/301] (Maria Margarida Sequeira Fernandes and Others v. Erasmo Jack De Sequeira (dead) through Lrs.) is relied upon, whereunder the duty to proactive participation of the Judge has been indicated.

39. ... A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law. 8.10. The role of the Judge to bring the relevant fact on record may have to be played at the appropriate time and appropriate stage and it again depends upon the facts and circumstances of each case. Therefore it is premature to rely upon this decision at this stage.

9. Keeping the legal positions in mind, it is necessary to find out whether the averments made in the plaint would be sufficient for the Court to take it on file or it is insufficient to the extent of rejecting the plaint.

10. A perusal of the plaint would go to show that the factual details, as extracted above, in paragraph 3, covers the plaint. It is the grievance of the defendant / petitioner that the plaint did not make any mention about the cancellation of the release deed. By the omission to make a mention about the cancellation of the release deed, whether it could be said that there is no cause of action disclosed in the plaint. The cancellation of release deed might have come to the knowledge of the plaintiff or might not have. Therefore, the mere non-mentioning of the cancellation of the release deed alone cannot be a factor to reject the plaint. The non-mentioning can always be explained during trial.

11. Cause of action does not mean that the last crucial act as believed by the defendant but it is a bundle of facts which would give the plaintiff the right to sue. Therefore, just because there is no mention about cancellation of release deed it cannot be contended that there is no cause of action at all.

12. The fact or combination of facts that gives a person the right to seek judicial redress or relief against another. So far as this case is concerned, the plaintiff alleges combination of facts that would give him a right to seek the judicial redress. The one factor, which is omitted to be stated (allegedly by the defendant) alone, would not constitute cause of action. Opportunity must be given to the plaintiff to explain under what circumstances the alleged cancellation of release deed was omitted to be stated. A mere irregularity cannot be construed as illegality constituting a ground for rejection of plaint. The remaining allegations regarding fraud cannot be considered at this stage.

13. Under such circumstances, the order of the Court below dismissing the petition to reject the plaint has to be upheld.

14. In the result, this Civil Revision Petition is dismissed. No costs. Consequently the connected MP is closed.