Madras High Court
K. Nagarajan vs R. Radha And K.S. Ramasamy on 27 January, 2003
Equivalent citations: 2003(1)CTC454, (2003)1MLJ474
ORDER A. Ramamurthi, J.
1. The plaintiff in O.S. NO. 430 of 2002 on the file of the Additional District Munsif, Karur, has preferred the present Civil Revision Petition under Article 227 of the Constitution of India, aggrieved against the order dated 11.10.2002 passed in I.A.307 of 2002.
2. The case in brief for disposal of this Civil Revision Petition is as follows :
The revision petitioner/plaintiff filed I.A. NO. 307 of 2002 under Order 39 Rules 1 and 2 to pass an order of temporary injunction, restraining the respondents/defendants and their men from, in any manner, interfering with his possession and enjoyment of the property till the disposal of the suit. The suit property originally belongs to one Sembayee Ammal and on 19.09.1990, she entered into an agreement of sale in respect of the property for a price of Rs.3,500/- per cent with the petitioner. On the date of agreement itself, Sembayee Ammal received a sum of Rs.3.00 lakhs as advance and she agreed to convey the property within six months. Even during her lifetime, she failed to receive the balance of sale price and execute the document, even though the plaintiff was ready and willing to perform his part of agreement of sale. Sembayee Ammal died in the year 1991 and thereafter, the petitioner filed O.S. No. 152 of 1993 for specific performance of the agreement of sale against her legal heirs. On 31.07.1995, the suit was decreed and the plaintiff had also deposited the balance of sale consideration, namely, Rs.74,500/-. The plaintiff filed E.P. No. 180 of 1995 for execution of the sale deed. On 03.07.1998, the learned Subordinate Judge, Karur, executed the sale deed in favour of the plaintiff and it was registered. The petitioner filed E.P. NO. 136 of 1998 for taking possession through Court and on 18.02.1999, the petitioner had taken possession of the property through the process of Court. Ever since that date, the plaintiff has been in possession and enjoyment of the property. This being so, the respondents/defendants 1 and 2, who are wife and husband and strangers to the property, having got no manner of right, title or interest, have taken the property interfering with the possession and enjoyment of the plaintiff and hence, the application. The plaintiff has got prima facie case and balance of convenience in his favour.
3. The second respondent filed a counter and denied various averments. He also denied the knowledge about the filing of O.S. No. 152 of 1993 and also the execution of the sale deed by Court as well as the delivery of possession. The respondents are not parties to those proceedings and as such, they are not binding. The second respondent had purchased the suit property from the said legal heirs of Sembayee Ammal on 31.03.1994 under a registered sale deed. Even before the sale deed, the property was originally in the possession of one Kamaraj and Selvaraj as tenants. The respondent got assignment of leasehold right from them under a registered document dated 18.03.1994. After assignment of leasehold right, possession was also given to the respondent and he alone is in possession and enjoyment of the same. From the year 1995 onwards, neither Sembayee Ammal nor her legal heirs were in possession and enjoyment of the property. No possession much less actual possession was taken by the petitioner and it must be a paper delivery. While the petitioner has no possession of the property and the same is in the possession of the respondents alone, no question of attempting to interfere with the possession will arise. The documents filed by the petitioner are only make belief ones, particularly the revenue records. The petitioner has no case much less prima facie case. There is collusion between the petitioner and the vendors of the respondents. The status quo and the balance of convenience do not require the grant of an order of temporary injunction and as such, the application is liable to be dismissed.
4. The Court below, after hearing the parties, passed an order, directing both the parties to maintain status quo. Aggrieved against this only, the petitioner/plaintiff, invoking Article 227 of the Constitution, has filed the present Revision Petition.
5. Heard the learned counsel for the parties.
6. The points that arise for consideration are, (i) Whether the filing of revision by invoking Article 227 of the Constitution of India is proper and correct ? (ii) Whether the order passed by the Court below is proper and correct ? and (iii) To what relief ?
7. POINTS : There is no dispute that the suit property measuring 1.07 acres situate in Andank oil East village, Karur taluk, originally belonged to one Sembayee Ammal. According to the petitioner, Sembayee Ammal entered into a sale agreement with him on 19.09.1990 to sell the property for a sum of Rs.3,74,500/-and a sum of Rs.3.00 lakhs was paid by way of advance and the balance amount had to be paid in a period of six months. Admittedly, Sembayee Ammal died leaving behind the legal heirs. The petitioner filed O.S. No. 152 of 1993 on the file of the Sub-Court, Karur, for specific performance of the agreement of sale against the legal heirs of the deceased Sembayee Ammal. It appears that, during the tendency of the suit only, the first respondent, as Power Agent of legal heirs of Sembayee Ammal, conveyed the property in favour of her husband/first respondent under a registered document dated 31.03.1994 (Ex.B-1). The suit O.S. No. 152 of 1993 was decreed on 31.07.1995 and the petitioner filed E.P. NO. 188 of 1995 for execution of the decree for specific performance and Ex.A-2 sale deed was executed in favour of the petitioner by the Court on 03.07.1998. The petitioner had also taken delivery of the property through Court in E.P. No. 136 of 1998 on 18.02.1999. Since the respondents attempted to interfere with the possession of the petitioner, he filed O.S. No. 430 of 2002 for permanent injunction on 24.06.2002 and also filed I.A. NO. 307 of 2002, in which only, the learned District Munsif, Karur, passed the order impugned on 11.10.2002, ordering status quo.
8. Learned counsel for the revision petitioner/plaintiff contended that the Court below found that Ex.A-2 sale deed was executed by the Court in favour of the petitioner and Exs.A-3 and A-4 delivery records evidencing possession taken through Court by the petitioner would show prima facie title and possession and hence, ought to have granted an interim order of injunction. The Court cannot ignore the evidence afforded by the Court officials and the bailiff endorsement as to delivery of possession and it cannot construe as a paper delivery and ought to have granted injunction based on delivery of possession. The Court below ought not to have granted the order of status quo, after finding that the petitioner has produced records of prima facie title and possession. The Court below ought to have seen whether the mandatory duty is cast upon the Court to decide the disputed question of fact as to who is in possession; the Court is bound to decide the prima facie material available on record and there is no justification whatsoever for the Civil Court driving the parties to criminal proceedings by passing an order of status quo, without indicating what the status quo is.
9. Learned counsel for the respondents/defendants, on the other hand, contended that the remedy available to the petitioner is to prefer an appeal aggrieved against the order and filing of a revision invoking Article 227 of the Constitution is not proper and correct. Only when there is an inherent error or defect in passing the order, Article 227 can be invoked. In short, according to the learned counsel, the revision filed by the petitioner itself is not maintainable. He further stated that aggrieved against the order, the respondents have preferred an appeal before the District Court.
10. Admittedly, the respondents/defendants are pendent lite purchasers of the property from the legal representatives, who are parties in O.S. No. 152 of 1993, filed by the petitioner for specific performance. No doubt, the decree passed in O.S. No. 152 of 1993 is an exparte decree and unless the same is set aside in a manner known to law, parties claiming under the judgment debtor of the decree are bound by the same. Patta has been transferred in the name of the petitioner and kist receipts were also filed evidencing the possession. In fact, the petitioner had given wide paper publication in respect of the suit for specific performance and also about his right long prior to the sale in favour of the respondents. The lease agreement relied upon by the respondents has to be established by letting in evidence. In fact, the sale deed in favour of the respondent is based on a Power of Attorney Deed and it was not produced. There is a categorical finding by the Court below in favour of the petitioner, but unfortunately an order of status quo has been passed, without mentioning specifically about the nature of status quo. Now, the respondents have purchased the property in the year 1994 pending disposal of the suit and, on the other hand, the petitioner, after getting decree from a competent Court, got the sale deed also executed through Court and taken possession of the property as well through the process of Court and necessary documents have been filed in support of the same. They cannot be lightly brushed aside by the Court below on the ground that they have to be tested in the course of evidence. If the reasoning given by the Court below is accepted, then, the weight and significance attached to the Court orders will be affected.
11. It is unfortunate that the Court below had marked the documents, but the same have not been shown in the appendix to the order. Number of decisions cited had been considered, but the conclusion was not a proper one. The parties are driven to the necessity of criminal proceedings because there would be a dispute as to what was the status quo to be maintained and from what period it will commence. It is only under such circumstances, the learned counsel for the revision petitioner stated that the Court below has committed a patent error in ordering status quo, after rendering a categorical finding as to the prima facie case and balance of convenience.
12. A perusal of the order passed by the Court below indicates that the Court has virtually accepted the case put forth by the petitioner based upon the documents, but in the conclusion only, the parties were directed to maintain status quo, without mentioning as to the nature of status quo. When admittedly the respondents are pendent lite purchasers and on the other hand the petitioner had purchased the property through Court and also taken possession through Court, naturally they are sufficient and prima facie materials to prove title and possession in favour of the petitioner. This cannot be lightly brushed aside by any Court of law on the ground that they have to be tested in the Court after letting in evidence. If that is accepted, in all cases, it can be easily pleaded that whatever document filed will be considered only on the basis of evidence and no proper order could be passed. The entire order appears to be in favour of the petitioner, but only in the conclusion, instead of granting an order in favour of the petitioner, the Court below has passed an order of status quo and thereby, now, both the parties are aggrieved.
13. Learned counsel for the revision petitioner relied on (Mohd. Sulaiman v. Mohd. Ismail) that "a decree obtained against only some of the heirs - When binds the estate - Rule is not part of personal law but of law of procedure- Applies to heirs of muslims also." This decision is relied upon by the revision petitioner in order to meet the contention raised by the respondents that all the legal heirs of Sembayee Ammal were not made parties in O.S. No. 152 of 1993.
14. Reliance is also placed on 1988 (2) LAW WEEKLY 342 (Albert, D. v. Lalitha) under Order 39, Rule 1 C.P.C. that there is no justification whatever for a Civil Court driving the parties to criminal proceedings by passing an order of 'status quo' without indicating what the status quo is. This is nothing but a grave dereliction on the part of the civil court of its duty to decide a disputed question of fact. The Court is bound to decide prima facie on the materials available, whether the plaintiff is in possession or the defendant is in possession. Leaving the matter in doubt and ambiguity by passing an order of 'status quo' will result in more dangerous consequences than even deciding wrongly but clearly that one of the parties is in possession. Whenever a Court passes an order directing the preservation of 'status quo', it should by the same order state in unequivocal terms what the 'status quo' is. Otherwise, the Court will be failing to do its duty." This decision is entirely applicable to the case on hand in all fours.
15. The petitioner has also relied upon 1991 (1) LAW WEEKLY 244 (G. Ramasami v.Kuruva Boyan and two others) that "plea on behalf of appellant that it was only a proper delivery, and that actual delivery was not effected, ought not to be accepted - Court cannot ignore evidence afforded by court officials and bailiff's endorsements in the absence of a definite and specific plea of fraud."
16. It has also been held in (Anand Prasad Agarwalla v. Tarkeshwar Prasad) that "Sale certificate has legal validity and force unless set side or declared to be nullity."
17. Learned counsel for the respondent relied upon (Gram Panchayat of Village Naulakha v. Ujagar Singh) that "In order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit for a declaration as to its collective nature or for setting it aside, as a condition precedent."
18. The respondents also relied upon (Estralla Rubber v. Dass Estate (P) Ltd.) that "Power under Article 227 can be exercised to interfere with orders of lower Courts and Tribunals only in cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where, in the absence of intervention by the High Court, grave injustice would remain unchecked and uncorrected... Findings of fact of lower Court or Tribunal can be set aside by High Court under Article 227 if findings are based on no evidence at all or are so perverse that no reasonable person could come to such conclusions."
19. Reliance is also placed on (Ouseph Mathai v. M. Abdul Khadir) that "petitioner cannot invoke jurisdiction under, as a matter of right and the petition cannot be treated like an extension of a statutory appeal or revision. Mere wrong decision is not a ground for exercise of jurisdiction under Article 227 - High Court may intervene under Art. 227 only where it is established that lower Court or tribunal has been guilty of grave dereliction of duty and flagrant abuse of power, which has resulted in grave injustice to any party."
20. It has been held in (Essen Deinki v. Rajiv Kumar) that "even wrong decisions made by lower courts cannot be interfered with under Article 227, if such decisions have been made within jurisdiction of the lower Court."
21. There is no dispute about the principles in these decisions and the applicability of the same depends upon the facts and circumstances of each case. In the present case, it is evidently clear that the Court below has come to the conclusion that the petitioner has got prima facie case and balance of convenience in his favour on the basis of the documents, but ultimately came to the conclusion, directing the parties to maintain status quo. Instead of solving the dispute between the parties, it would only aggravate the matter. What was the status quo period to be maintained is also not specifically mentioned. It would virtually drive the parties to take law into their own hands and create unnecessary problems and ultimately go to the police station. It is the duty of the Court below to come to a positive conclusion, based upon the documents filed on either side. The petitioner has got a sale deed through Court and he also got possession of the property through Court. If the possession given by the Court is not accepted as prima facie evidence, then, it not known what more required by the trial Court. Moreover, patta, adangal extract also had been transferred in the name of the petitioner and he also paid kist to prove the possession. The order of status quo passed by the Court below virtually has given a lever to the defendants, who are pendent lite purchasers for possession of the property.
22. Hence, I am of the view that it is a fit and proper case to invoke Article 227 of the Constitution of India and interfere with the finding of the Court below. Since the lower Court has not given any period to be maintained as status quo, in the interest of justice, it is just and necessary that the matter has to be remitted back to the Court below to pass a considered order, after hearing both sides, in one way either allowing or dismissing.
23. For the reasons stated above, this Civil Revision Petition is allowed; the order of status quo passed by the Court below is set aside and the matter is remitted back to the Court below to pass a considered order on merits and dispose of the same in a period of three weeks from the date of receipt of copy of this order. No costs. Consequently, the connected C.M.P. and V.C.M.P. are closed.