J. Lilly v. Joseph

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940** **OP(C).No. 1400 of 2018** **I.A.NO.8979/2016 IN O.S.NO.1861/2016 OF THE ADDITIONAL MUNSIFF COURT-II, THIRUVANANTHAPURAM** **----------** ## **PETITIONER(S):** **J.LILLY, W/O.LATE R.VISWAMBHARAN, AGED 68 YEARS, ARTHALA MELA PUTHEN VEEDU, PRA - 116, PAPPAD, NETTAYAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.M.BALAGOVINDAN** **SRI.T.K.ANANDA PADMANABHAN** ## **RESPONDENT(S) :** **JOSEPH, S/O.GABRIEL, AGED 59 YEARS, OLD T.C.33/186, (NEW T.C.10/1235) PUTHENVILA VEEDU, VATTIYOORKAVU.P.O., PEROORKADA VILLAGE, THIRUVANANTHAPURAM -695 001.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **20.06.2018** **OP(C).No. 1400 of 2018 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1- TRUE COPY OF THE ORDER IN R.C.P.32/2012 OF THE ADDITIONAL MUNSIFF (RENT CONTROL COURT), THIRUVANANTHAPURAM DATED 31/08/2013. EXHIBIT P2- TRUE COPY OF THE JUDGMENT IN R.C.A.NO. 23/2013 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-III, THIRUVANANTHAPURAM DATED 15/10/2015. EXHIBIT P3- TRUE COPY OF THE ORDER IN R.C.R.NO. 97/2016 OF THIS HONOURABLE HIGH COURT OF KERALA, ERNAKULAM DATED 22/03/2016. EXHIBIT P4- TRUE COPY OF THE ORIGINAL PETITION 1888/2016 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXHIBIT P5- TRUE COPY OF THE JUDGMENT IN O.P. (F.C) 51/2017 DATED 09.02.2017. EXHIBIT P6- TRUE COPY OF THE KYCHEET R.C.P.32/12 IN E.P. 611/16 DATED 22/11/2017. EXHIBIT P7- TRUE COPY OF THE INJUNCTION APPLICATION IN O.S.1861/2016. EXHIBIT P8- TRUE COPY OF THE MAINTAINABILITY APPLICATION FILED BY THE PETITIONER. EXHIBIT P9- TRUE COPY OF THE ORDER IN I.A.8979/2016 IN O.S.1861/2016 DATED 15/11/2017. RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** **22.06.2018** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = O. P. (C) No.1400 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of June, 2018** ## **J U D G M E N T** O.S.1861/2016 is instituted by the respondent herein as plaintiff against the petitioner as defendant before the Munsiff's Court, Thiruvananthapuram, seeking the following reliefs: “ (1) A decree may be passed in favour of the plaintiff declaring that the certificate showing that the defendant is the legal heir of deceased Viswambharan, obtained by the defendant is null and void. (2) A decree may be passed in favour of the plaintiff declaring that the title of the plaint schedule property and building is absolutely belongs to the plaintiff. (3) Pass a permanent prohibitory injunction against the defendants and O. P. (C) No.1400 of 2018 :- 2 :- their men by restraining them from trespassing in to the plaint schedule property. (4) Grant such other reliefs and interim reliefs deem fit to grant.” For the sake of convenience, the petitioner is hereinafter referred to as “defendant” and the respondent as “plaintiff”. 2. The plaintiff was a tenant of the building belonging to late Viswambharan the husband of the defendant. After the demise of the husband, the defendant filed RCP 32/12 seeking eviction of the tenant (plaintiff) under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The plaintiff denied the legal status of the defendant contending that she is not the wife of late Viswambharan. The Rent Control Court held the denial of the title to be bona fide. The defendant filed RCA 23/13. The appellate court found that the defendant is the legally wedded wife of late Viswambharan and that she has inherited rights over O. P. (C) No.1400 of 2018 :- 3 :- the building in question. The appellate court proceeded to consider the merits of the rent control petition and ordered eviction. The plaintiff challenged the order of eviction before this Court in RCR No.97/16. This Court, as per order dated 22.03.16, confirmed the finding of the appellate court that the defendant is the legally wedded wife of Viswambharan and that on his demise she became the landlord of the building. Regarding the grounds for eviction, this Court remanded the matter back for consideration of the grounds for eviction. Thereafter, the Rent Control Court passed an order of eviction which became final. On 22.11.2017, in execution of the order of eviction, the building was delivered over to the defendant, with the assistance of police. 3. In the meantime, the plaintiff had approached the Family Court by filing Original Petition No.1888/2016 seeking a declaration that the marriage between the defendant and Viswambharan is null and void. The finding in the rent control proceedings was not brought to the notice of the O. P. (C) No.1400 of 2018 :- 4 :- Family Court. The defendant approached this Court by filing O.P.(FC) No.51/2017 wherein this Court directed the Family Court to consider the question of maintainability as a preliminary issue. Pursuant thereto, the Family Court held that the Original Petition is not maintainable. 4. In the meantime, the present suit has been instituted seeking the reliefs above referred to. The petitioner-defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure praying for rejection of the plaint. As per the impugned order, the application was dismissed. 5. The challenge against the legal status of the defendant as the legally wedded wife of late Viswambharan was agitated earlier and was held in favour of the defendant. In O.P. No.1888/2016, the plaintiff sought for declaration that the marriage between the defendant and late Viswambharan is null and void. In paragraph 7 of the original petition, it was averred thus: “It is submitted that the alleged marriage between the O. P. (C) No.1400 of 2018 :- 5 :- respondent and the said Viswambaran is false and there is no valid marriage between them. The certificate of marriage, which the respondent produced in the connected Civil case is obtained by practicing fraud. Hence the alleged marriage which was alleged to be solemnized on 12.6.14 and certificate of marriage obtained by the respondent are null and void. The copy of the certificate of marriage obtained fraudulently by the respondent is also produced herewith.” The original petition was dismissed on the ground of maintainability. 6. The court below has held that the plaint cannot be rejected under Order VII Rule 11 since the issue involves mixed question of law and facts. The court below needs to consider as to whether the substance of the plaint disclose a cause of action and whether the suit appears to be barred by any law. This is so in terms of Order VII Rule 11(a) and (d) of the Code. As held by the Apex Court in I.T.C. Limited v. Debts Recovery Appellate Tribunal and Ors. [AIR 1998 SC 634] , the Court O. P. (C) No.1400 of 2018 :- 6 :- need to consider whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to escape from the clutches of Order VII Rule 11(a) of the Code. In M/s Raptakos Brett and Co. Ltd. v. Ganesh Property [AIR 1998 SC 3085], the Apex Court held that cause of action is to be culled out on a conjoint reading of all paragraphs of the plaint. Courts are to bear in mind that ingenuity in the drafting of pleadings shall not create confusion in determining if there is a cause of action for the suit. I do not express if the case at hand discloses a cause of action or not. It is a conclusion to be arrived at on proper understanding of the plaint. I feel that the matter needs to be reconsidered by the court below. 7. The learned counsel for the defendantpetitioner brings to my notice that an interlocutory application for injunction filed by the plaintiff is yet to be disposed of and taking advantage of the pendency of the same the plaintiff is causing hardship to the defendant. I am sure O. P. (C) No.1400 of 2018 :- 7 :- that the court below will dispose of the application as expeditiously as possible. In the circumstances, the impugned order is set aside. The court below shall rehear I.A. No.8979/16 and pass fresh orders without delay. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge