S SUBRAMANIAM Vs. R DAYANANTHAN

JUDGEMENT

(1.) Defendants 1 to 5 are the revision petitioners. Respondents 1 and 2 filed the suit in O.S.No. 248 of 2010 for declaration that the revocation deed dated 9.5.2005 executed by defendants 1 to 5 is void and non est. In the suit, the revision petitioners filed I.A.No. 2059 of 2010 under Order VII Rule 11 to reject the plaint and that application was dismissed and aggrieved by the same, this revision is filed.

(2.) Learned counsel for the revision petitioners Mr. R. Subramanian submitted that the suit filed by respondents 1 and 2 in O.S.No. 248 of 2010 is a clear case of re-litigation and abuse of process of court and having regard to the allegations made in the plaint, the plaintiffs have no cause of action and they have no right to maintain this suit and therefore, the plaint is liable to be rejected. The learned counsel further submitted that O.S.No. 234 of 2006 on the file of the I Additional Sub Judge, Salem was filed by the first respondent herein against the fourth revision petitioner and another seeking declaration that the cancellation deed is void, non est and unenforceable in law and for injunction and the suit was rejected by this court by order dated 29.7.2010 in C.R.P.No. 392 of 2010 and on the same set of facts, the present suit was filed by respondents 1 and 2 herein and therefore, having regard to the judgment rendered in C.R.P.No. 392 of 2010, the present suit filed by respondents 1 and 2 is also liable to be rejected. He relied upon the judgment reported in M.V. JAYAVELU v. E. UMAPATHY, 2010 5 LW 748) rendered by me and the judgment in CHURCH OF CHRIST CHARITABLE TRUST & EDUCATIONAL CHARITABLE SOCIETY v. PONNIAMMAN EDUCATIONAL TRUST, 2012 8 SCC 706) in support of his contention.

(3.) On the other hand, learned counsel for respondents 1 and 2 submitted that the Trial Court has rightly dismissed the application after relying upon various judgments of this court holding that respondents 1 and 2 have pleaded cause of action and the case of the respondents can be considered during trial and it cannot be rejected at the threshold and the judgment in C.R.P.No. 392 of 2010 will not apply to the facts of this case and the parties are not bound by the said judgment and that judgment will not operate as res judicata. The learned counsel for respondents 1 and 2 also relied upon the judgment BHAU RAM v. JANAK SINGH & OTHERS, 2012 4 LW 640) in support of his contention that while considering the application under Order VII Rule 11 of the Code of Civil Procedure, the court has to examine only the averments in the plaint and the plea taken by the defendant in the written statement cannot be taken into consideration. He, therefore, submitted that having regard to the plaint allegations, it cannot be rejected and the court cannot decide at this stage as to whether the plaintiffs are entitled to the relief or not.