The revision petitioner has filed the present civil revision petition as against the order dated 03.11.2008 in I.A.No.974 of 2008 in O.S.No.198 of 2008 passed by the learned Principal District Munsif, Srivilliputtur, in dismissing the application filed by the revision petitioner under Order 1 Rule 11(d) and Section 151 of the Code of Civil Procedure, praying to reject the original plaint filed by the first respondent/plaintiff with costs.
2. The trial Court while passing orders in I.A.No.974 of 2008 in O.S.No.198 of 2008, has come to the conclusion that the first respondent/plaintiff is litigating her case by way of claiming adverse title against the deceased Veeraiyan Chettiar which involved a mixed question of law and facts which can be decided only at the time of trial and all the contentions raised by the revision petitioner/petitioner/first defendant can be adjudicated and decided at the time of trial and consequently, dismissed the application issuing a direction that the defendants must file their written statement within a month's time ending on 04.12.2008, after filing written statement, issues will be framed on 08.12.2008 and the trial will be posted in the list on 10.12.2008.
3. The learned Counsel for the revision petitioner/first defendant submits that the trial Court has committed an error in holding that the present suit filed by the first respondent/plaintiff is not barred under Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, on the ground that the question of title cannot be decided by a forum constituted under the said Act and the civil Court alone can decide the title of the first respondent relating to the suit properties and further that, the trial Court has not appreciated the fact that the first respondent/plaintiff has filed the suit for permanent injunction restraining the defendants from bringing the plaint schedule properties for sale in execution of the award No.113/98-99 dated 22.05.2000 and for mandatory injunction directing the second defendant to pass an order raising attachment as per the order dated 07.01.2008 in E.P.No.31/2004-2005 and added further that as against any award, if the plaint properties are attached and brought for sale, the affected party can file a claim petition before the Sale Officer under Rule 135 of Tamil Nadu Co-operative Societies Rules and on receipt of the same, the Sale Officer shall investigate the claim or objection and dispose of it on merits and when there is a statutory power under the Tamil Nadu Co-operative Societies Act, 1983, the civil Court ought not to have entertained the suit and these aspects of the matter have not been looked into by the trial Court in a proper perspective which has resulted in miscarriage of justice and therefore, prays for allowing the present civil revision petition to prevent an aberration of justice.
4. In support of his contention that the suit in O.S.No.198 of 2008 on the file of the learned Principal District Munsif, Srivilliputtur, is not maintainable, the learned Counsel for the revision petitioner relies on the decision of this Court in Paravakottai village Co-operative Agricultural Loan Society, represented by its Secretary v. J.Karthikeyan reported in 1999-1- L.W.180 at 181, wherein it is held that 'Assuming that the plaintiff has sustainable objections as against the award made against his parents, the provisions of the Act and Rules provide adequate remedy as against the claim. A hierarchy of appellate authorities is also provided thereunder including the right of the party to institute a suit within a period of six months from the date on which the order was passed in his application or objection claiming that the property was not liable for attachment. Therefore, it is clear that the provisions of the Act are a self-contained code prescribing a proper procedure and as such the bar of the Civil Court under Section 100 of the Act would be undoubtedly attracted in the case of the plaintiff. The suit filed by the plaintiff is barred by Section 100 of the Act 53/1961 and the plaintiff is not entitled to seek his remedy as prayed for. It cannot be disputed that the plaintiff is entitled to raise this objection before the appropriate authority and it is within the jurisdiction of the said authority to consider the objection and to deal with the objections on the merits.'
5. Contending contra, the learned Counsel for the first respondent submits that the first respondent/plaintiff is not a member of the revision petitioner/first defendant Society and therefore, the suit filed by her before the trial Court is perfectly maintainable in law and that the revision petitioner cannot seek in aid of Section 156 of the Tamil Nadu Co-operative Societies Act, 1983 in his aid and moreover, supported the order of the trial Court in dismissing the application.
6. The learned Counsel for the first respondent/ plaintiff cites the decision of this Court M.Narisimhan v. The Deputy Registrar of Co-op. Societies, Tuticorin and 2 others reported in 2003(1) CTC 327 wherein it is inter alia held that 'questions relating to title to suit property and determination of ancestral nucleus in purchase of property cannot be decided by forum created under Co-operative Societies Act and father being third party to proceeding between Co-operative Bank and his son Case would not fall under Section 156 of Tamil Nadu Co-operative Societies Act and that ouster of jurisdiction cannot be readily inferred and that decree of Court's below holding that civil Court had no jurisdiction reversed.
7. He also places reliance on the decision of this Court in Mattadhari Primary Agricultural Co-op. Bank v. Saroja Ammal and another reported in 1997(1) CTC 378, wherein it is held that 'Court coming to conclusion that plaintiff is not member of Primary Agricultural Co-operative Bank and therefore, statutory bar would not operate and that the revisional Court cannot interfere with finding given on such preliminary issue.'
8. Countering the submissions of the learned Counsel for the first respondent/plaintiff, the learned Counsel for the revision petitioner/first defendant contends that the husband of the first respondent/plaintiff, late Veeraiyan Chettiar, had business dealings with the petitioner Society and that he owes Rs.10,47,254.55 to the petitioner Society and that the second respondent has passed an award against the husband of the first respondent/plaintiff and in order to defeat the rights of the revision petitioner Society ub realising its legitimate dues, the first respondent/ plaintiff has filed the present suit which is not maintainable per se as per Section 156 of the Tamil Nadu Co- operative Societies Act, 1983.
9. At this stage, the learned Counsel for the revision petitioner/first defendant invites the attention of this Court to Rule 135 of the Tamil Nadu Co- operative Societies Rules, 1988, which runs thus:
"136.Dismissal or adjournment due to decree-holder's default.- Where any property has been attached in execution of a decree, but by reason of the decree-holder's default, the Registrar is unable to proceed further with the application for execution, he shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease."
10. It is the contention of the learned Counsel for the revision petitioner that further it is always open to the first respondent/plaintiff to seek her remedy before the Sale Officer as per Rule 135 of the Tamil Nadu Co- operative Societies Rules, 1988 and if any order is passed by the Sale Officer on the basis of the claim or objection preferred by a party, then a party may file the suit within six months from the date of order to establish the right which she claims to the property in dispute, but subject to the result of such suit, if any, the order made by the Sale Officer shall be conclusive and therefore, the present suit filed by the first respondent/plaintiff is a prematured one.
11. It is not out of place to point out that the first respondent/plaintiff in her plaint has inter alia averred that she has come to know that the revision petitioner/first defendant has obtained a decree against her husband on 22.05.2008 under Award No.113/1998-1999 in respect of the alleged loan incurred by her husband who expired on 14.06.2000 and that in pursuance of the award passed, the revision petitioner has filed an application in E.P.No.31/2004-2005 to bring the plaint schedule properties along with some other properties for sale so as to realise the decree amount with accrued interest thereon and that she is not connected with the alleged debt borrowed by her husband from the revision petitioner and that the alleged award passed against her deceased husband in respect of the loan availed from the revision petitioner/first defendant is not binding upon her and therefore, the plaint schedule properties of her cannot be brought for sale by the second defendant/the Deputy Registrar, Office of the Deputy Registrar of Co-operative Societies, D.No.1, Mela Mada Street, Srivilliputtur, Virudhunagar District, in execution proceedings initiated by the revision petitioner and such action for sale by the second defendant is invalid in the eye of law and that the first respondent/plaintiff is not a party to the award passed by the revision petitioner/first defendant and therefore, she has filed a suit praying for the relief permanent injunction restraining the defendants, their subordinates, officials, their men or agents from brining the plaint schedule properties for sale in realisation of the alleged decree amount alleged to be due from the plaintiff's husband to the first defendant in execution of the award No.113/98- 99 dated 22.05.2000 and also for the relief of mandatory injunction directing the second defendant to pass an order raising the attachment as per order dated 07.01.2008 in E.P.No.31/2004-2005, etc.
12. It is apt to point out that the averments in the plaint without addition or subtraction, must show that it is barred by any law to attract Order VII Rule 11 of the Code of Civil Procedure. Further Order VII Rule 11 Cl.(d) of the Code of Civil Procedure will be applicable only in those cases where the statement made by the plaintiff in a plaint without any dispute or doubt, shows that the suit is barred by any law in force. Where the Court is in doubt or the Court is in sure and certain that the suit is barred by some law, the Court would not reject the plaint under cl.(d) of Order VII Rule 11 of the Code of Civil Procedure. Added further, a plaint under the cl.(d) of Order VII Rule 11 of the Code of Civil Procedure can be rejected on the basis of pleadings in the plaint and not by referring to materials placed on record by the defendant in answer to the plaint.
13. Continuing further, it is the case of the first respondent/plaintiff that she has purchased the site of the plaint first item with then existed thatched house on 16.07.1959, etc and later, on 24.12.1968, she has purchased the sites of second and third items of the schedule properties with then existed thatched houses etc., and admittedly, the first respondent/plaintiff is not a member of the civil revision petitioner/first defendant Society. In short, a careful perusal of the averments made in the plaint of the first respondent/plaintiff would go to show that she claims ownership of the plaint schedule properties ad that she has been in possession and enjoyment of the same and dealing with the said properties as an absolute owner and therefore, the plaint schedule properties cannot be the subject matter of any execution proceedings and resultantly, cannot be attached and brought for sale in realisation of the debt borrowed to be due from her deceased husband.
14. The aim of Order VII Rule 11 of the Code of Civil Procedure is to keep out of Courts irresponsible law suits. Moreover, Order VII Rule 10 is a tool in the hands of a Court of law to effectuate the object behind Order VII Rule 11 of the Code of Civil Procedure. As a matter of fact, Order VII Rule 11 of the Code of Civil Procedure does not control or restrict Order VI Rule 17 of the Code of Civil Procedure. The real position is that the suit cannot be dismissed on an application without taking evidence by a Court of law.
15. In fact, Order VI Rule 17 of the Code of Civil Procedure enables the Court to exercise its power of permitting either party to alter or amend his pleadings even in respect of a matter where a declaratory relief has not been sought for originally, for just and proper adjudication of the case. After all, an amendment application can be filed at any stage of the proceedings before the conclusion of the case.
16. In the present case on hand, the first respondent/plaintiff is left with the option to amend her pleadings in regard to the declaratory relief sought for by her at any stage of the proceedings before the conclusion of the trial of the main case ad it is for her to take a recourse to the ingredients of Order VI Rule 17 of the Code of Civil Procedure if she so desires.
17. Suffice it for this Court to make a mention that the averments in regard to the claim of absolute ownership of the plaint schedule properties made by the first respondent/plaintiff are necessarily to be proved by means of oral and documentary evidence during the conduct of trial of the main case on the side of the first respondent/plaintiff in the manner known to law.
18. Therefore, the application filed by the revision petitioner/first defendant praying for rejection of the plaint is untenable, because of the fact that the civil Court will have jurisdiction to go into the issue of the claim of absolute ownership of plaint schedule properties by the first respondent/plaintiff and that the jurisdiction of the civil Court is not ousted notwithstanding the fact that in the present case on hand, the first respondent/plaintiff has only sought for the relief of permanent injunction restraining the defendants, their subordinates, officials, their men or agents from brining the plaint schedule properties for sale in realisation of the alleged decree amount alleged to be due from the plaintiff's husband to the first defendant in execution of the award No.113/98-99 dated 22.05.2000 and also for the relief of mandatory injunction directing the second defendant to pass an order raising the attachment as per order dated 07.01.2008 in E.P.No.31/2004- 2005, etc, even though the first respondent/plaintiff has not sought for a relief of declaratory relief in regard to the absolute ownership of her claim in the plaint schedule properties by virtue of sale deeds dated 16.07.1959 and 24.12.1968 and further that this complex mixed question of fact and law involving legal intricacies cannot be gone into by the forum constituted under the Tamil Nadu Co-operative Societies Act when that too, the first respondent/plaintiff is not a member of the Society and being a third party notwithstanding Section 156 of the Tamil Nadu Co-operative Society Act which speaks of bar of jurisdiction of civil Court and Rule 135 of the Tamil Nadu Co- operative Societies Rule, 1988 which enjoins the investigation of claims and objections to attachment to property by a Sale Officer etc. as they are not applicable to the present case on hand before this Court and furthermore, when the first respondent/plaintiff is a stranger to the attachment proceedings, the provisions of the said Act, cannot be against the first respondent/plaintiff, in the considered opinion of this Court.
19. On a conspectus of overall assessment of the facts and circumstances of the present case and in view of the detailed discussions mentioned supra, this Court dismisses the present civil revision petition leaving the parties to bear their own costs. The revision petitioner/first defendant Society and the second respondent/second defendant herein are directed to file their written statement within three weeks from the date of receipt of a copy of this order and the trial Court is directed to frame necessary issues based on the pleadings and after providing due opportunities to both parties, is further directed to dispose of the main suit so as to thrash out all disputes/controversies in a complete and comprehensive manner once and for all, within a period of three months from the date of filing of the written statements by the defendants and to report compliance to this Court without fail. Resultantly, the order dated 03.11.2008 in I.A.No.974 of 2008 in O.S.No.198 of 2008 passed by the learned Principal District Munsif, Srivilliputtur, is affirmed for the reasons assigned by this Court. Consequently, the connected Miscellaneous Petition is dismissed.
rsb To
1.The Principal District Munsif, Srivilliputtur.
2.The Assistant Registrar (Judicial), Madurai Bench of Madras High Court, Madurai (To watch and report).