Madras High Court
S.R.Trust vs S.Ramesh on 17 October, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/10/2012 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)(MD).No.822 of 2012 and M.P.(MD) Nos.1, 2 and 4 of 2012 1.S.R.Trust, Meenakshmi Mission Hospital and Research Centre, Lake Area, Melur Road, Madurai. 2.Dr.N.Sethuraman 3.Dr.Rajam Sethuraman 4.Dr.S.Gurusankar 5.S.Ragunthan .. Petitioners Vs. S.Ramesh, Trustee, S.R.Trust, S/o.N.Sethuraman, No.2, Ambedkar Street, Brathibha Illam, Uthangudi, Madurai. .. Respondent Prayer Petition filed under Article 227 of the Constitution of India, praying to strike off the suit filed by the respondent in O.S.No.320 of 2011 on the file of First Additional Sub Court, Madurai. !For Petitioners ... Mr.M.K.Subramaniam Senior Counsel for M/s.S.Ramesh ^For Respondent ... Mr.AR.L.Sundaresan Senior Counsel for Mr.S.Manohar :ORDER
By means of a registered Declaration of Trust Deed dated 09.05.1985, a public trust by name "SR Trust" was constituted by Dr.N.Sethuraman, second petitioner herein and six others as trustees. The primordial objects of the Trust are to serve the public by providing medical relief to the sick, disabled and handicapped and to promote research in disease, to establish medical institutions and research etc., By virtue of Clause No.6 of the Trust deed, the second petitioner shall be the President and his wife the third petitioner shall be the Secretary of the Board of Trustees and Clause No.7 authorises the President to nominate and appoint at any time additional trustees or remove any trustee according to his will, while Clause No.8 provides that the vacancies caused by resignation or retirement or removal or otherwise of the trustee may be filled in by nomination by the Founder during his life time and subsequently by the President. On 20.06.2003, a supplementary deed was executed and registered in order to fill up the vacancies created by the death of two trustees. By an unanimous resolution adopted by the trustees, the respondent herein and the fourth petitioner were appointed as trustees to hold the office for the duration of their life time.
2. Yet another supplementary deed dated 22.07.2005 came to be registered with incorporation of Clause 3(a) by means of which, the respondent shall be the Director of Academics, who shall administer the educational institutions of the Trust, whereas the Managing Trustee of the Trust shall administer Meenakshi Mission Hospital and Research Centre, a hospital run by the trust. On 10.06.2010, a supplementary deed of Trust was registered modifying Clause No.7 of the trust deed dated 22.07.2005 to the effect that "for and during the life time of the Founder, the appointment of any additional trustees or removal of any other trustees shall be done only by the Founder and the Managing Trustee jointly. After the life time of the Founder, the appointment of any additional trustees or removal of any other trustees shall be done only with the unanimous decision of the Managing Trustee with any one of the Trustees."
3. The legal battle started on 26.11.2010 when Dr.Brathibha, daughter of the second petitioner, filed a suit in O.S.No.224 of 2010 on the file of the Principal District Judge, Madurai arraying the trustees without impleading the said Trust, praying for the relief of a settlement of selection of trustees, for a declaration that she is one of the trustees, rendition of accounts and for permanent injunction restraining the defendants from interfering with the plaintiff's duties as a trustee etc. The fourth defendant in the said suit is the present respondent, who filed a memo in that suit on 25.01.2011 submitting to the decree. The above said conduct of this respondent prompted to issue show cause notice to this respondent for his anti-trust activities calling upon him to give explanation within seven days from the date of receipt of the notice.
4. It is stated that on 09.02.2011, the respondent received show cause notice but failed to respond to the same. Hence, in a Board Meeting convened by the Trust, a resolution was passed removing this respondent from the Board of Trustees of SR Trust and the said communication was sent by the Secretary, the third petitioner herein to the respondent on 17.02.2011.
5. In the meanwhile, this respondent on 11.02.2011 filed a suit in O.S.No.14 of 2011 on the file of the Principal District Court, Madurai, praying for the relief of declaration that the clause inserted in the supplementary trust deed dated 22.07.2005 which provides that the appointment and removal of trustees to be done by the Founder of the Trust as null and void and also for permanent injunction restraining the trustees from his removal as trustee. He also filed an application in the suit for interim injunction, but he could not get any interim order. On 24.02.2011, a memo was filed in the suit by the counsel for respondents/defendants 1 to 4, 9 and 11 before the Principal District Court, Madurai stating that the first plaintiff in O.S.No.14 of 2011 viz., this respondent was removed from SR Trust on 17.02.2011. One P.Chinnaiyan, a practicing Advocate is the second plaintiff in the suit arrayed along with the plaintiff. It is stated in the plaint that he is a beneficiary of the Trust.
6. It is further stated that this respondent along with the said P.Chinnaiyan again filed a suit through his counsel Mr.P.Suresh Kumar before the District Court, Madurai on 25.02.2011 and the same was returned by the Court for certain compliances on 03.03.2011 and the same was entered in the CR.19 Register maintained by the District Court in S.R.Nos.3626 to 3629. The said plaint has not been re-presented so far.
7. Afterwards, this respondent filed a suit in O.S.No.320 of 2011 before the First Additional Sub Court, Madurai on 06.04.2011 with the following prayers:
"a) A judgment and decree in favour of the plaintiff to declare the board meeting allegedly held on 17.02.2011 of the first defendant Trust at Meenakshi Mission Hospital and Research Centre and the consequent removal of the plaintiff as a Trustee of the first defendant Trust and Director of Academics as illegal null and void.
b) A decree for permanent injunction by restraining the defendants and their men or agents or persons from preventing the plaintiff from discharging his duties in the first defendant Trust as a Trustee and Director of Academics as he performed prior to the meeting allegedly held on 17.02.2011."
8. Along with the suit, he also filed an application in I.A.No.378 of 2011 under Order 39 Rule 1 & 2 and Section 151 C.P.C. praying to grant an order of temporary injunction, restraining the respondents/defendants, their men, etc., from preventing him from discharging his duties as trustee of the first respondent trust and the Director of Academics as he performed prior to the meeting held on 17.02.2011 till the disposal of the suit. The learned Additional Sub Judge, Madurai granted ad-interim injunction in his favour in the following lines:
"Heard. Perused the documents and affidavit. Petitioner is the son and R2 to R4 are father, mother and brother of the petitioner respectively. Petitioner has been appointed as a Trustee as per document No.2. Document No.10 reveals that the petitioner will be the Secretary of the Trust after the life time of his mother R2. The nomination is irrevocable one. As per document No.3 the petitioner will hold office till superannuation. 21 days notice not served on the petitioner as per the Trust Act. Conducting Board meeting without giving opportunity to the petitioner is against the principles of natural justice. Hence, prima facie case made out. Balance of convenience in favour of the petitioner. If ad-interim injunction is not granted, irreparable loss will be caused to the petitioner and the purpose of suit will be defeated. Hence, ad- interim injunction is granted against the respondents till 20.04.2011. The petitioner is directed to comply with order 39, Rule 3 forthwith. Affidavit by next day. Notice to respondents by then. Private notice also to be sent.
Sd./- XXX 06.04.2011 "
9. The petitioners herein, assailing the above said interim order and the competency of the suit to continue on the file of the Court, have preferred the present revision petition before this Court. On 27.04.2011, this Court has passed an order suspending the interim injunction granted by the Court below. At the time of hearing of the C.R.P. for admission on the petitioners' side, it was argued that this respondent and one P.Chinnaiyan have filed O.S. No.14 of 2011 and afterwards they filed another suit on 25.02.2011 but it was returned by the District Court, Madurai and the said return of plaint is suppressed in the suit in O.S..No.320 of 2011.
10. On 12.05.2011 Mr.S.Ramesh, Advocate, on behalf of his client, the petitioners herein, sent a notice to Mr.D.Malaichamy to produce the unnumbered plaint presented by the respondent in C.R.P.No.822 of 2011 into the Principal District Court, Madurai and the same was returned under S.R.Nos.3626 to 3629 in C.R.19 Register through his counsel Mr.P.Suresh Kumar, before this Court, when the CRP is coming up for hearing on 13.06.2011.
11. The petitioners also sent a notice on 17.05.2011 to the Advocate Mr.P.Suresh Kumar requiring him to produce the unnumbered plaint dated 25.02.2011 presented by this respondent along with Mr.P.Chinnaiyan before the Principal District Court which was returned under S.R. Nos.3626 to 3629 in CR 19 Register through his Counsel Mr.P.Suresh Kumar.
12. This respondent has filed an affidavit along with the application to vacate the stay in M.P.(MD)No.2 of 2011 in M.P.(MD)No.1 of 2011 in C.R.P.(MD) No.822 of 2011 wherein he has affirmed that the suit which was stated to be unnumbered and returned by the District Court was filed by Mrs.Brathibha and the same was used by the revision petitioners.
13. This CRP was taken up by this Court for final hearing on 01.08.2011 and on 17.08.2011 and final orders were passed in the CRP allowing the revision petition striking off the suit in O.S.No.320 of 2011 on the file of the First Additional Sub Court, Madurai, giving liberty to the respondent to file a fresh case on the same cause of action before the Principal District Court, Madurai. The respondent preferred Special Leave Petition before the Hon'ble Supreme Court in S.L.P.(Civil) No.9563 of 2012 in Civil Appeal No.2941 of 2012 (CC4399/2012). The Hon'ble Supreme Court on 19.03.2012 after hearing both sides was pleased to pass the following order :
"Delay condoned.
Leave granted.
After arguing the matter at some length, learned counsel for the respondents submit that the appeal could be allowed, the order passed by the High Court set aside and matter remitted to the High Court for disposal afresh in accordance with law, with a request to the High Court to confine itself to the question of validity of the order of injunction granted by the Trial Court leaving the question regarding maintainability of the suit open to be determined at the appropriate stage by the Trial Court.
We, accordingly, allow this appeal, set aside the impugned order and remit the matter back to the High Court with a request to it to hear and dispose of the petition filed under Article 227 of the Constitution of India afresh in accordance with law.
The question whether the suit filed by the plaintiff was maintainable may be examined by the High Court but only for the limited purpose of determining whether the plaintiffs had a prima facie case and whether the plaintiffs had suppressed any material facts or information from the court, as alleged by the defendants-respondents.
The parties are left to bear their own costs."
14. In the meanwhile, Mr.P.Chinnaiyan, who is the second plaintiff in O.S.No.14 of 2011 filed an affidavit in the said suit stating that he along with first plaintiff viz., this respondent, gave instructions to their Advocate Mr.P.Suresh Kumar to file another suit in the Principal District Court, Madurai against the resolution of removing the first plaintiff from the Trusteeship passed by the Trust and his withdrawal from his position as second plaintiff and he is not pressing the case so far he is concerned, may be recorded. The xerox copy of the certified copy of the above said affidavit filed by P.Chinnaiyan is found available in pages 185 and 186 of the typed set of papers filed by the petitioners' side. In this affidavit the receipt seal of the Principal District Court, Madurai with the date 16.08.2011 is also seen. Hence, it transpires that as early as on 16.08.2011 the second plaintiff in O.S.No.14 of 2011 filed the above said affidavit and the present respondent is maintaining silence as regards this. Accordingly, their Advocate filed another suit on 25.02.2011 challenging the resolution of the defendant trust, but the said suit was returned by the District Court, Madurai on the same day and it was received by their Advocate on 03.03.2011 from the Court. By means of this affidavit, the said P.Chinnaiyan is withdrawing his position as second plaintiff and does not press the case insofar as he is concerned.
15. This respondent, his sister Dr.Brathibha along with 8 others have filed a suit in O.S.No.9503 of 2011 on the file of the VII Assistant City Civil Court, Chennai and also filed an application in I.A.No.21169 of 2011 praying for interim injunction restraining the respondents viz., these petitioners from interfering and preventing them from discharging their official functions, day- to-day affairs and official activities and the administration over the SR Trust. An interim injunction was granted by the said Court and the respondents carried the matter in revision in CRP No.5222 of 2011 before the Principal Seat and the same was disposed of on 28.02.2012 with following observations:
"34. However, since according to the learned Senior Counsel appearing for the petitioners, in view of the interim order granted by the Trial Court, the administration of the hospital in question is affected, status quo as on today shall prevail for a period of four weeks from the date of receipt of a copy of this order. Besides, the petitioners herein are at liberty to file a vacate stay petition within a period of one week from the date of receipt of a copy of this order and thereafter, within a period of three weeks, the VII Assistant City Civil Court, Chennai, is directed to dispose of the vacate stay petition along with the Interlocutory Application in I.A.No.21169 of 2011 and the VII Assistant City Civil Court, Chennai, is further directed to decide the issue on merits, in-influenced by the orders passed by this Court. It is made clear that in the event of the petitioners' failure to move the VII Assistant City Civil Court, Chennai, within the stipulated time, the order of status quo granted by this Court will automatically stand cancelled.
In fine, the Civil Revision Petition is dismissed with liberty as indicated above. No costs. Connected Miscellaneous Petitions are closed."
16. With the backdrop of above said events which happened in this CRP and its related litigations pending in other Courts, in the light of the directions issued by the Hon'ble Supreme Court, the Court has to discuss the matter.
17. Point for consideration:
Whether the respondent has abused process of Court and suppressed material facts while filing O.S.No.320 of 2011 on the file of the First Additional Sub Court, Madurai, so as to direct striking off the said suit and whether the respondent has got prima facie case in the said suit?
18. Mr.M.K.Subramaniam, learned Senior Counsel would contend that inasmuch as the impugned order passed by the Court below does not satisfy the statutory requirements viz., the same was passed without reasons and it is non- est in the eye of law, that the said order suffers from legal infirmity, that the Court can infer fraud practised by the respondent in the conduct of the case by furnishing the false information in his affidavit that his sister alone filed the suit which was returned by the Principal District Judge, Madurai, that the affidavits of second plaintiff Mr.P.Chinnaiyan and Mr.N.Retnaraj, the then Principal District Judge, Madurai would speak volumes, that this respondent along with P.Chinnaiyan filed the suit through their counsel Mr.P.Suresh Kumar into the Principal District Court, Madurai, that by suppressing the filing and returning of the plaint, he filed the suit in O.S.No.320 of 2011 and fraudulently obtained interim injunction order, that the said Dr.Brathibha did not respond to the summons issued from this Court, that the fraud which is the outcome of dishonest intention on the part of the respondent would make the suit vitiated and by means of suppression of material fact, the suit in O.S.No.320 of 2011 has to be struck off from the file of the Court and that it has to be seen that the returned plaint has not so far been re-presented.
19. Contending on the other side of the coin, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the respondent would submit that no element of fraud could be perceived on the part of the respondent, that aggrieved at the conduct of the trustees, he filed the suit before the VII Assistant Judge, City Civil Court, Chennai in O.S.No.9503 of 2011 and got interim injunction and the attempt on the part of the revision petitioners to set aside the same was turned down by the Principal Seat, that it transpires from the order passed by the Supreme Court that the learned Senior Counsel for these petitioners submitted that the appeal before the Supreme Court may be allowed and the matter be remitted back to the High Court with the request to the High Court to confine itself to the question of validity of the order of injunction granted by the Trial Court leaving the question regarding maintainability of the suit open to be determined at the appropriate stage by the Trial Court and by means of this submission, the petitioners have waived the prayer of striking off the plaint in O.S.No.320 of 2011 and that this Court may deal with the propriety of the interim order passed by the trial Court.
20. Replying to the contention, the learned Senior Counsel appearing for the petitioners would submit that the first part of the order of the Supreme Court alone cannot be read, but the whole order is to be read and the direction has to be understood and complied with. As per his contention, even though the representation on behalf of these petitioners before the Supreme Court was otherwise, the second paragraph of the order would vividly indicate the nature of the direction that this Court has to hear and dispose of the petition filed under Article 227 of the Constitution of India afresh in accordance with law.
21. As per the direction of the Hon'ble Supreme Court while this Court explores the grounds for the disposal of the Civil Revision Petition in accordance with law, the principles set out by the Supreme Court have to be followed.
22. Further, the learned Senior Counsel appearing for the respondent would also say that while reading third paragraph, it is seen that this Court has been required to determine whether the plaintiffs had a prima facie case and it has to be determined only in the temporary injunction application and the direction is for dealing with the legal competency of the interim order alone. Again, the learned Senior Counsel for the petitioners would submit that the entire reading of the third paragraph of the order of the Supreme Court would go to show that the question whether the suit filed by the plaintiff was maintainable may be examined by the High Court but only for the limited purpose of determining whether the plaintiff had a prima facie case and whether the plaintiffs had suppressed any material facts or information from the Court as alleged by the defendant/respondent and that when the Supreme Court has issued a direction to this Court to find out whether there was any suppression of material facts or information from the Court, this would apply to the disposal of the suit and hence, the entire reading of the order would show that the direction of the Supreme Court is for disposal of the Civil Revision Petition afresh with regard to the prayer in it that the suit in O.S.No.320 of 2011 may be struck off. This Court sees considerable force in the arguments of the learned Senior Counsel for the petitioners. The Hon'ble Supreme Court has directed this Court to hear and dispose of the revision petition after examining questions whether prima facie case is made out and whether the plaintiffs had suppressed any material facts or information from the Court as alleged by the defendant/respondent to find out the maintainability of the suit.
23. On 03.08.2012, Mr.P.Chinnaiyan addressed a letter to the then Principal District Judge Mr.N.Retnaraj requesting him to inform him as to the particulars with regard to the plaint filed by him and this respondent on 25.02.2011 into the Principal District Court, Madurai and the same was returned under SR Nos.3626 to 3629 in C.R.19 on 03.02.2011. Responding to the said letter, on 08.08.2012, Mr.N.Retnaraj sent a reply to Mr.P.Chinnaiyan, furnishing following particulars:
"1.The said plaint S.R.Nos.3626 to 3629 was filed before the Principal District, Madurai on 25.02.2011 (as evidenced by CR-19 Register of the said Court).
2.The said plaint S.R.Nos.3626 to 3629 was returned by the Principal District Court, Madurai on 03.03.2011 (as evidenced by the CR-19 Register of the said Court).
3.The said plaint in S.R.Nos.3626 to 3629 was filed by Advocate P.Suresh Kumar (as evidenced by the CR-19 Register of the said Court).
4.When the plaint S.R.No.3626 to 3629 with the documents was circulated to me for my perusal by the Registry of the Principal District Court, Madurai, after going through the plaint and the documents in S.R.No.3626 to 3629 since I felt that the issues in the said plaint are directly and substantially the same issues in the previously instituted suit (O.S.No.14 of 2011) between the same parties (S.Remesh and P.Chinnaiyan), I returned the said plaint directing the plaintiffs in S.R.No.3626 to 3629 to seek their remedy in the pending suit filed by them in O.S.No.14/2011 on the file of the Principal District Court, Madurai.
5.I reiterate that it was S.Ramesh and P.Chinnaiyan, the same plaintiffs in O.S.No.14/2011, Principal District Court, Madurai, who were shown as plaintiffs in the plaint S.R.No.3626 to 3629 which was filed by Advocate P.Suresh Kumar and the said plaint S.R.No.3626 to 3629 was returned by the Principal District Court, Madurai (me) on 03.03.2011 with the above endorsement."
24. When the above said exchange of notices between them was informed to this Court, this Court directed Mr.N.Retnaraj to appear and to file an affidavit with regard to the events which he has narrated in his letter dated 08.08.2012 before this Court on 03.09.2012. Accordingly, Mr.N.Retnaraj appeared before this Court and filed an affidavit reiterating the above said points.
25. From the affidavit, it could be seen that this respondent along with Mr.P.Chinnaiyan, had presented a plaint into the Principal District Court, Madurai and the same was returned under SR Nos.3626 to 3629 by Mr.N.Retnaraj directing the plaintiffs to seek their remedy in the pending suit filed by them in O.S.No.14 of 2011 on the file of the Principal District Court, Madurai.
26. The learned Senior Counsel appearing for the respondent passed comments upon the conduct of the then Principal District Judge Mr.N.Retnaraj that a Judicial Officer used to transact numerous papers in the Court every day and whether it is possible for him to remember an endorsement of return made in a plaint, that a Judicial Officer should not identify himself with the party, that unless the learned then Principal District Judge is subjected to cross examination by this respondent, the affidavit given by him could not be relied upon.
27. Repelling the contentions, the learned Senior Counsel appearing for the petitioners would submit that the then Principal District Judge retired on 31.03.2011 and the date of return was 03.03.2011, and it may be expected that his remembrance might be afresh with regard to the facts of the case and that memory power of a human being could not be doubted and that there is nothing wrong to rely upon his affidavit.
28. When the things stood as such, the Court may see whether other circumstances would expose the suppression of material facts on the part of the respondent. The second plaintiff in O.S.No.14 of 2011 viz., P.Chinnaiyan has filed an affidavit in the said suit on 16.08.2011 stating that he along with this respondent herein gave instructions to their Advocate P.Suresh Kumar to file another suit in the Principal District Court, Madurai against the resolution removing the first plaintiff from his trusteeship by the trust, accordingly, their Advocate filed another suit on 25.02.2011 challenging the resolution of the Trust but the said suit was returned by the Court on the same day and was taken return by the Advocate on 03.03.2011. Even though the affidavit was filed on 16.08.2011in the said suit, so far neither in the said suit nor in this Civil Revision Petition, this respondent has denied the said allegation which would show that he along with P.Chinnaiyan filed a suit into the Principal District Court, Madurai, on 25.02.2011 challenging the resolution of the trust and the same was returned by the Court on 03.03.2011. In this context, it has to be necessarily observed that the filing and returning of the suit touching the merits was consciously suppressed in the plaint and injunction application in O.S.No.320 of 2011.
29. Another circumstance which would support the above said observation is that filing of the impugned resolution by the Trust along with the postal cover in O.S.No.320 of 2011. A certified copy of the document has been produced which shows that by the side of Court's seal with date 06.04.2011 another seal of the Court with date 25.02.2011 is also seen. Both the seals belong to Principal District Court, Madurai. The petitioners' side argument is that it is incumbent upon the respondent to explain the presence of the District Court seal with date 25.02.2011 and since no information is forthcoming, it has to be observed that it was one among the documents filed by the respondent along with the plaint which was presented by him through his Counsel P.Suresh Kumar on 25.02.2011 and returned on 03.03.2011 as stated above. The said contention deserves acceptance since there is no explanation on the part of the respondent in this regard.
30. In addition to filing of affidavit by the second plaintiff in the suit P.Chinnaiyan in O.S.No.14 of 2011, his conduct discloses existence of another circumstance that he has taken steps to secure the returned plaint from the Principal District Court. On 03.08.2012, he addressed a letter to the learned Principal District Judge (Retd.) Mr.N.Retnaraj requesting him to furnish particulars with regard to the plaint which was returned by the Court under SR Nos.3626 to 3629 in C.R.19 Register on 03.03.2011. Responding to the letter, Mr.N.Retnaraj, sent a letter dated 08.08.2012 to the effect that both Mr.S.Ramesh and Mr.P.Chinnaiyan filed a suit through their Advocate Mr.P.Suresh Kumar and when the said bundle was circulated to him for his perusal by the Registry of the Principal District Court, Madurai and after going through the plaint and the documents, he felt that the issues in the plaint are directly and substantially the same and hence, he returned the plaint directing the plaintiffs to seek remedy in O.S.No.14 of 2011 itself. After going through this communication, this Court directed Mr.N.Retnaraj to file affidavit before this Court and accordingly, he filed affidavit. In view of the above, besides filing affidavit in O.S.No.14 of 2011, the said P.Chinnaiyan has also addressed to the then Principal District Judge (Retd.) to furnish the position of returned plaint which was filed by him and this respondent.
31. Further, the said P.Chinnaiyan also made a complaint to the Bar Council of Tamil Nadu against the lawyer Mr.P.Suresh Kumar stating that he has failed to inform the status of the case and when he asked him he had not returned the bundle and he issued a notice to him on 16.08.2011. After making a preliminary enquiry, the Bar Council had replied that the respondent Advocate is guilty of professional or other misconduct and they referred the matter to the Disciplinary Committee for disposal after due enquiry. As adverted to supra, by conduct of the second plaintiff P.Chinnaiyan in the matter of returned plaint, it comes to light that both this respondent and P.Chinnaiyan jointly presented the suit through their counsel P.Suresh Kumar and the said fact has been suppressed, in the present suit. He is also guilty of suppression of material fact in filing the fresh suit in O.S.No.320 of 2011 about the earlier presentation and return of the plaint in and by the Principal District Court. The respondent's side is silent in this regard.
32. This Court is of the considered opinion that even in the absence of the affidavit filed by Mr.N.Retnaraj, in view of the other above said circumstances and events, that the respondent filed a plaint into the Principal District Court, Madurai, questioning the resolution removing him passed by the Trust dated 17.02.2011 and the said fact was suppressed by him when he filed the suit in O.S.No.320 of 2011.
33. As far as the prima facie case in the suit is concerned, the respondent at the time of filing of O.S.No.320 of 2011, was very well aware that he acted against the interest of the trust by submitting to decree in O.S.No.224 of 2010. By virtue of Trust deed dated 09.05.1985 in Clause 7, the President shall be entitled to nominate and appoint at any time additional trustees or remove any trustee according to his will and Clause 8 contemplates the vacancies caused by the resignation, retirement, removal or otherwise of the trustees may be filled in by nomination by the Founder during his life time and subsequently, by President. When the Trust deed provides and authorises the President to act as such, the respondent was removed from trusteeship on 17.02.2011. It is to be noted that at any earlier point of time the respondent did not question the validity of the above said clauses. Further, as discussed earlier, the respondent concealed the fact of filing another suit before the Principal District Court, Madurai and getting it returned, of course, through his counsel. In view of the above said circumstances, it cannot be stated that he has got prima facie case in the suit filed in O.S.No.320 of 2011. The necessary corollary is that the suit is not maintainable.
34. In the impugned order of the interim injunction, the learned First Additional Sub Judge has stated that 21 days notice was not served on the petitioner as per the Trust Act and conducting Board Meeting without giving opportunity to the petitioner is against the principles of natural justice. But the learned Senior Counsel appearing for the petitioners would cite a decision of the Hon'ble Supreme Court reported in AIR 2005 SC 1588 (Thayarammal (Dead) by LR v. Kanakammal and others), in which it is held in para 15 that the Indian Trusts Act as clear by its Preamble and contents is applicable only to private trust and not to public trusts. It is stated that SR Trust is a public trust and hence, the provisions of the Indian Trusts Act are not applicable.
35. Time and again the Hon'ble Supreme Court and this Court have been reiterating and restating the guidelines to be followed by the Subordinate Courts when granting interim injunction orders which is well settled that while the Presiding Officer intends to grant ad-interim injunction ex parte he has to apply his mind with regard to the prima facie case, presence of balance of convenience in favour of the applicant and if ex parte order were not granted and if it were to be granted after notice to the respondent, whether the applicant would be put to irreparable loss have to be ascertained and it is expected that the Presiding Officer has to furnish the reason in the order as to why he is granting ad-interim injunction to the applicant without notice to the respondents. In this context, the learned Senior Counsel for the petitioners relied upon a decision of the Supreme Court in Shiv Kumar Chadha v. Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161, wherein Their Lordships have formulated the following guidelines to be followed by Subordinate Courts. They are as follows:
"32. ... The courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite-party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay...".
34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite-party". The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. ..."
36. The learned Senior Counsel for the petitioners also placed reliance upon a Full Bench decision of the Supreme Court in (1993) 3 SCC 161 (Shiv Kumar Chadha v. Municipal Corporation of Delhi and others), wherein Their Lordships have elaborately dealt with the guidelines to be followed by the Subordinate Courts while granting interim injunction under Order 39, Rule 3 C.P.C. Inter alia it is submitted that the Court is having a bounden duty, while granting interim injunction ex parte, to record opinion that the object of granting injunction itself shall be defeated by delay and that the party who invokes jurisdiction of the Court for grant of an order of restraint against another party without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and that the Court has to consider briefly these factors in the ex parte order. But it is stated that in the case on hand, the above said principles have not been followed in the matter of granting of interim injunction by the Court below.
37. In 1995 (II) CTC 323 (Sri Suryanarayana Paper and Boards Pvt. Ltd and 5 others v. V.Padmakumar and two others), His Lordship M.Srinivasan (as His Lordship then was) has opined that the Court before granting ex parte order of injunction has to record reasons that issue of notice to opposite party would defeat the object of granting injunction. In this judgment, the decision in Shiv Kumar Chadha's case, supra, has been followed.
38. The learned Senior Counsel for the respondent garners support from a decision of the Hon'ble Apex Court reported in 2006 (3) CTC 185 (Kishore Kumar Khaitan and another v. Praveen Kumar Singh), wherein in para 12 Their Lordships have observed as follows:
"12. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
39. In (2010) 2 SCC 77 (Narendra Kante v. Anuradha Kante and others) and in (2010) 1 SCC 689 (Kashi Math Samsthan and another v. Shrimad Sudhindra Thirtha Swamy and another), the Supreme Court has dealt with the existence of prima facie case in favour of the plaintiff, the balance of convenience in his favour and irreparable loss and injury if injunction is not granted.
40. Even though it appears that the Presiding Officer has furnished reasons, they do not satisfy the legal requirements, for granting the impugned order. A careful scrutiny of the same would indicate that there was no application of mind and as per the afore-stated decisions, the order has to be necessarily interfered with, which is not sustainable.
41. The term "fraud" has been explained in 1993 INDLAW SC 739 (S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and others), that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another and it is a deception in order to gain by another's loss and it is a cheating intended to get an advantage. It is argued on the petitioners' side that the conduct of the respondent in playing fraud would fit in with the definitions in the afore-stated decision.
42. In 2011 8 SCC 249 (Ramrameshwari Devi and others v. Nirmala Devi and others), it is held that if any party is found to have obtained ex parte injunction on the basis of false pleadings and forged documents, he should be adequately punished and no one should be allowed to abuse process of Court and that imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. Their Lordships have formulated the following guidelines in the matter of inferring fraud on the Court by any of the parties to the proceedings. They are as follows:
"52. .....
C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
E. The courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing the parties concerned appropriate orders should be passed.
F. Litigants who obtained ex parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court."
43. In 2000 (III) CTC 74 (Seeni alias Sundarammal v. Ramasamy Poosari and 2 others), this Court has held that when the attempt on the part of a party is for abusing process of Court, this Court can invoke powers under Article 227 of the Constitution of India. It has also referred to a decision of the Hon'ble Apex Court in K.K.Modi v. K.K.Modi reported in 1998 (3) SCC 573 wherein it is held that relitigation whether or not barred by res judicata, if manifests from the pleadings amounts to abuse of process of Court and that Court has discretion to strike out the pleadings on being satisfied of there being no chance of success in the suit.
44. He also cited a Judgment of mine reported in 2009 (2) CTC 57, (Dindigul Pettai Sathangudi Shatriya Nadar Uravinmurai and another v. Selvaraj and another), wherein I have followed the decisions of the Hon'ble Supreme Court and observed that when the Court is able to find out abuse of process of Court which would lead to waste of judicial time, then Article 227 can be invoked to strike off the petition or plaint from the file of the Court. In this decision, I have followed the decision in Surya Dev Rai vs. Ram Chander Rai and others reported in 2003 (4) CTC 176 (SC) = 2003 (6) SCC 675 wherein the Supreme Court has formulated as many as nine guidelines to be observed by the High Court in assessing the vexatious and frivolous litigations to exercise the supervisory jurisdiction under Article 227 of the Constitution of India. Following is the relevant portion:
"(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction."
45. In S.P.Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and others' reported in AIR 1994 SC 853, the Hon'ble Apex Court has held that a person whose case is based on falsehood, has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. In a decision of this Court in 1997 (III) CTC 567 (Renuka Devi v. D.Manoharan), it is observed that when the plaintiff played fraud by creating forged document and obtained orders, then revision under Article 227 of the Constitution of India can be entertained and the suit has to be struck off from file.
46. The learned Senior Counsel for the respondent would contend that when the alternative efficacious remedies are available to the petitioners by filing appeal or revision on the interim order passed by the Court below and to file application before the trial Court under Order 7, Rule 11 C.P.C. for striking off the plaint, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India is not maintainable, that the interim order passed by the Court below contained reasons for grant of such order, that whether the provisions of Trust Act are applicable to the matter or not, has to be gone only at the time of trial of the suit, that there is no material to show that this respondent filed the suit on 25.02.2011 into the Principal District Court, Madurai, which was reportedly returned on 03.03.2011, that the subject matter in this Civil Revision Petition and C.R.P.No.5222 of 2011 before the Principal Bench are with respect to the same matter and that this Court cannot deal with contentious issues while exercising jurisdiction under Article 227 of the Constitution of India.
47. He relied upon a decision of this Court in (2010) 9 SCC 385 (Jai Singh and others v. Municipal Corporation of Delhi and another), wherein Their Lordships have gone into the question of jurisdiction of this Court exercisable under Article 227 of the Constitution of India. Following are the operative portions of the judgment:
"The High Court, under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."
48. In 2011 (1) CTC 854, (Shalini Shyam Shetty and another v. Rajendra Shankar Patil) the Hon'ble Supreme has laid down principles as regards the circumstances under which the jurisdiction of this Court under Article 227 of the Constitution of India could be exercised. The relevant portion reads as under:
"61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court."
49. He also placed reliance upon a judgment rendered by the Hon'ble the Chief Justice of Madras High Court reported in 2012 (2) MWN (CIVIL) 561 (K.Ponnamal and others v. V.Thayanban and others), wherein it is observed that when alternative remedy is available revision petition is not maintainable. Various judgments of the Hon'ble Supreme Court have been referred and followed in this judgment.
50. He also cites a judgment delivered by me which is reported in 2010 (1) CTC 199 (Madras Gymkhana Club and others v. K.C.Sukumar) wherein I have passed orders, following the principles laid down by the Hon'ble Apex Court that the High Court while exercising its supervisory jurisdiction entering into the disputed question of fact is not its function, that if the factual findings recorded by the Court below need not be interfered with by exercising jurisdiction under Article 227 of the Constitution of India, since error allegedly available in the order challenged has to be interfered with and corrected by the Court of Appeal on the question of fact and that such exercise of power shall be done most sparingly in order to keep the Courts within bounds and not correcting mere errors.
51. The respondent in the present revision has filed application to vacate the stay granted in M.P.(MD) No.1 of 2011 in C.R.P.(MD) No.822 of 2011, on 27.04.2011 and in the affidavit accompanying the said petition, in para 8, he has affirmed that the alleged plaint shown by the revision petitioners was not filed by him and that it was filed by his sister Dr.Brathibha which is used by the revision petitioners. Hence, he has affirmed before this Court that his sister Dr.Brathibha is the plaintiff in the suit filed by P.Suresh Kumar, Advocate which was presented into the Principal District Court and was returned as stated above. But the clinching materials as regards the conduct of P.Chinnaiyan, the second plaintiff in the said suit would show that Dr.Brathibha could not have been plaintiff in the said suit. This Court infers suppression of material fact before this Court in this regard on the part of the respondent.
52. This Court has bestowed its rapt attention to all the materials available on record and also the rival submissions advanced by both the learned Senior Counsel for the parties. This Court also follows the principles laid down in the decisions of the Hon'ble Apex Court and reaches a conclusion that it is a fit case to exercise jurisdiction under Article 227 of the Constitution of India since there is abuse of process of court and suppression of material facts on the part of the respondent and he made the Court to act upon those aspects to pass order which is being impugned. The Hon'ble Supreme Court has seized of the matter and hence, this Court has to act as per the directions of the Supreme Court.
53. As adverted to supra, since the prayer in the Civil Revision Petition is for striking off the plaint in O.S.No.320 of 2011, even though in the first and second pages of the Civil Revision Petition there is a reference as if the revision petition is preferred against the order in I.A.No.378 of 2011, as per the directions of the Hon'ble Supreme Court, the Civil Revision Petition with the prayer with respect to the suit in O.S.No.320 of 2011 has to be dealt with.
54. This Court has analysed the materials put forth by both parties and observed that the respondent has filed the suit in O.S.No.320 of 2011 on the file of the First Additional Sub Court, Madurai, suppressing the material fact of filing and getting return of a plaint in which similar allegations and reliefs should have been put forth as in O.S.No.320 of 2011 in order to get favourable orders in the subsequent suit. There is no prima facie case for the respondent, in this suit in O.S.No.320 of 2011, which is not maintainable also. Hence, I am of the firm opinion that there shall be an order by this Court striking off the suit in O.S.No.320 of 2011 on the file of the Fist Additional Sub Court, Madurai. As opined and directed by the Hon'ble Supreme Court in the case of Ramrameshwari Devi and others the party who is abusing the process of Court and suppressing material facts before the Court shall be viewed seriously and the party is liable to face penal consequences of initiation of criminal proceedings or imposition of realistic costs so as to control the tendency of the parties to adopt such conducts in the Court proceedings. Hence, this Court is of the considered view that imposition of costs of Rs.1,00,000/- (Rupees One lakh only) on the respondent would be more appropriate. Such imposition of costs will send signal that the party who abuses of process of Court and suppresses material facts from the Court has to face the penal consequences also, besides loosing his case. The point is answered accordingly.
55. Before parting with the case, as an epilogue, this Court wishes to make a suggestion to the Subordinate Courts in the matter of making entries into the CR-19 Register so as to find out the names of the parties also who are plaintiffs/applicants in the plaint or papers which are presented into the Court. The objective behind it is to assist the Court to know who are the parties to the proceedings besides the names of the Advocates who are on record for them and to settle any controversy or dissension which may arise in future as to who are the parties to the suit as in the case on hand. In the present case, if the names of the parties were entered into the relevant column in CR-19 Register viz., column No.4 under the caption "name of party (and pleader) presenting the document", it would have been easier for this Court to appreciate the facts without much strain and loss of time. The caption in column No.4 vividly indicates and requires the Court staff who is making entries in the CR- 19 Register to make entries of names of the parties and the names of the pleaders as well presenting the papers into the Court. But, the practice followed in the Subordinate Courts is that only entering the names of the pleaders appearing for the parties who are presenting the documents and they do not enter the names of the parties. Even as per the requirements in column No.4 the names of the parties should also be mentioned.
55(a). In view of the above, the suggestion of this Court is as follows:
The Presiding Officers and the Chief Ministerial Officers of all the Subordinate Civil Courts shall ensure that in CR-19 Register in column No.4 which is meant for entering the names of the parties and pleaders presenting the documents, the names of the parties to the documents presented into the Court along with the name of their Advocates entered.
56. In fine, the Civil Revision Petition is allowed, striking off the suit in O.S.No.320 of 2011 on the file of the First Additional Sub Judge, Madurai and the respondent is imposed a cost of Rs.1,00,000/- (Rupees One lakh only) to be paid by him directly to the Chief Justice Relief Fund.
Consequently, connected miscellaneous petitions are closed. No costs.
Note:
The Registry is directed to communicate Para 55(a) of this order, as furnished below, to all the Subordinate Courts after getting necessary orders from My Lord the Hon'ble the Chief Justice.
"The Presiding Officers and the Chief Ministerial Officers of all the Subordinate Civil Courts shall ensure that in CR-19 Register in column No.4 which is meant for entering the names of the parties and pleaders presenting the documents, the names of the parties to the documents presented into the Court along with the name of their Advocates entered."
srm To The First Additional Sub Judge, Madurai.