K SHOUKATH ALI Vs. K L KIRUBAKARAN

JUDGEMENT

(1.) HEARD the learned counsel appearing for the revision petitioner and party in person (R6-Dr. N. P. Prithivirajan ).

(2.) C. R. P (NPD) No. 783 of 2009 has been directed against the order passed in C. M. A. No. 13 of 2008 on the file of the Court of Principal Subordinate Judge, Salem, which had arisen out of an application I. A. No. 1137 of 2007 was filed under Order 39 Rules 1 and 2 of CPC. C. R. P (NPD) No. 784 of 2009 has been directed against the order passed in C. M. A. No. 11 of 2008 on the file of the Court of Principal Subordinate Judge, Salem. C. M. A. No. 13 of 2008 which had arisen out of an order passed in I. A. No. 1137 of 2008 in O. S. No. 908 of 2007 on the file of the Court of Additional District Munsif No. 1, Salem whereas C. M. A. No. 11 of 2008 had arisen out of an order passed in I. A. No. 1138 of 2007 in O. S. No. 908 of 2007 on the file of the Court of Additional District Munsif No. 1, Salem. Both the applications were filed under Order 39 Rules 1 and 2 and Section 151 of CPC to grant of an order of interim injunction pending suit. The learned Additional District Munsif , after considering the averments in the application as well as in the counter had dismissed the applications. Aggrieved by the findings of the orders of the learned Additional District Munsif, the above referred C. M. As were preferred before the learned Subordinate Judge, Salem. The learned Subordinate Judge in her detailed order not only dismissed both the CMAs but also dismissed the suit in O. S. No. 908 of 2007 which necessitated the revision petitioner/plaintiff to approach this Court by way of these revisions.

(3.) THE grievance of the learned counsel appearing for the revision petitioner is that without an application under Order 7 Rule 11 of CPC for rejecting the plaint, the first appellate authority, suo motu had passed an order for removal of the suit from the file of the learned Additional District Munsif No. 1, Salem. A reading of the impugned orders will go to show that relying on a decision reported in K. K. Swaminathan-v- Srinivasagam (2003 (3) M. L. J. 566) , the learned Subordinate Judge, Salem had ordered removal of the suit from the file of the trial Court. But on a perusal of the ratio in 2003 (3)M. L. J. 566 will go to show that the said revision was preferred against the order passed under Section 11 of CPC. The findings of this Court in the above said ratio is that the suit itself was barred by Res Judicata. There is no occasion for this Court in the above said dictum to decide whether the plaint filed by the plaintiff in that suit was liable to be rejected under Order 7 Rule 11 of CPC. I am of the view that the learned First appellate Judge, while dismissing the CMAs has no power to dismiss the suit itself. The first appellate Court/subordinate Judge. Salem ought to have given directions or liberty to the defendant to file appropriate application before the trial Court under Order 7 Rule 11 of CPC for the rejection of the plaint.