The petitioner/plaintiff has filed this Civil Revision Petition as against the order dated 15.09.2009 made in in SR.No.3203 of 2009 in unnumbered O.S.No. Of 2009 by the learned District and Sessions Judge, Tiruvarur in rejecting the plaint inter alia holding that "without impleading the land owner, namely, the Temple, this suit cannot be decided and also not maintainable."
2. To avoid an avoidable delay, the issuance of notice to the defendant is dispenses with in the interest of justice.
3. According to the learned counsel for the petitioner, the learned District Judge, Tiruvaraur has erroneously dismissed the suit even at the stage of numbering of the plaint without any justifiable reason and valid cause and as a matter of fact, rejecting the plaint without ordering notice to the other side is improper and this aspect of the matter has not been appreciated and adverted to by the trial Court in proper perspective and there has also been a case of violation of principles of natural justice and in a civil suit, the Revision Petitioner/Plaintiff is the dominus litus and especially, the present suit has been filed before the trial Court seeking the relief of specific performance and the Revision Petitioner/Plaintiff cannot be compelled or coerced to add parties against whom he does not want to fight, unless the same is to be done compulsorily under any law or rule of the land and in short, the order of trial Court in rejecting the plaint, suffers from serious infirmity coupled with patent illegality which has resulted in mis-carriage of justice and therefore, prays for allowing the Civil Revision Petition, in furtherance of substantial cause with justice.
4. A cursory perusal of the plaint filed by the Revision petitioner/Plaintiff before the trial Court indicates candidly that the Revision Petitioner/Plaintiff has sought the relief of specific performance directing the respondent/defendant to execute the necessary sale deed in his favour in respect of the suit property as per the terms and conditions of the agreement dated 08.12.2007 within the time stipulated by the Court, after receiving the balance of sale consideration and to hand over all original parent documents to the plaintiff and upon failure to do the same, the Court may be pleased to execute the necessary conveyance in favour of the plaintiff through its officers and to grant the relief of taking possession of the property from the respondent/defendant through the process of court.
5. It is to be noted that in a civil litigation, the Revision petitioner/Plaintiff is the dominus litus and the same is not an absolute or universal rule in the considered opinion of this Court.
6. Be that as it may. In the instant case on hand, the Revision Petitioner/Plaintiff has sought the relief of specific performance and in the cause of action paragraph, the Revision Petitioner/Plaintiff has inter alia averred that "out of sale consideration of Rs.13,00,000/-, he has to pay a balance of Rs.3,00,000/- to the defendant, which he has got ready at all times to pay the same to him. In fact, he has also prepared to deposit the said amount before the Court, if so directed by the Court etc. and also that if for any reason, the court comes to the conclusion that the plaintiff may not be awarded with primary relief of specific performance of the contract, he may be awarded with alternative remedy of refund of advance amount of Rs.10,00,000/- with 12% interest on equity on charge of the schedule mentioned property etc."
7. Besides the above, normally, the allegations in the plaint at the time of numbering by a competent court of law will be the guiding factor for taking cognizance of the same. By going through the order dated 15.09.2009 passed by the learned District Judge, Tiruvarur, this Court comes to the conclusion that the observations made to the effect that ".... As per the recitals of the said document the trustee has empowered the defendant to sale or to lease out the property to any third party. Further, it discloses that document No.8 is valueless one under law. The said document has no legal validity and even the trustee cannot sale the trust property without obtaining permission of this Court as against the provisions of Sec.34 of Indian Trusts Act 1882. The trustee himself without having power to sale the trust property he cannot assign a third party to sell the same. One citation in,M.L.J.(2008) 5 M.L.J. 590 is submitted by the plaintiff counsel is also no applicable to this suit since in the said case defendants 1 to 5 are neither necessary nor proper parties. In this case, this Court directs the plaintiff to implead the land owner of the suit properties. But the same is not complied by the plaintiff. Hence, this Court is in a view that without impleading the land owner namely the temple, this suit cannot be decided and also not maintainable under law. Hence, this plaint is rejected." are not correct per se in the eye of law, since minute/intricacies of the case need not be gone into at the time of numbering of the plaint and therefore, the learned District Judge is directed to number the un-numbered plaint and to take the same on his file within a period of ten days from the date of receipt of copy of this order and to issue notice to the other side and later on, after framing issues to dispose of the suit after full trial, in the manner known to law, by providing due opportunities to the parties to project their case.
8. With the above directions, the Civil Revision petition is disposed of, leaving the parties to bear their own costs.
pal To
1. The District and Sessions Judge, Tiruvarur