Madras High Court
A.B.Hassan vs Sundari on 23 April, 2002
Equivalent citations: AIR 2002 MADRAS 342, (2002) 2 MAD LJ 305, (2002) 3 MAD LW 798, (2002) 3 CIVLJ 922
Author: A.Kulasekaran
Bench: A. Kulasekaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/04/2002
CORAM :
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
Second Appeal No.1576 OF 1990
1. A.B.Hassan
2. Vedavalli @ Kasturi
3. Lakshmi
4. Kanagaraj]
5. Vilasini Appellants
Versus
Sundari Respondent
Second appeal under Section 100 C.P.C. against the Judgment and
Decree dated 14.8.1990 made in A.S. No.8 of 1984 on the file of the II
Additional District Judge, Pondicherry reversing the judgment and decree dated
6.10.1983 made in O.S. No.650 of 1982 passed by the II Additional District
Munsif, Pondicherry.
!For Appellant :: Mrs.Krishnaveni for
Mr.T.R.Rajaraman
^For Respondents:: Mr.U.Karunakaran for
Mr.T.P.Manoharan
:JUDGMENT
First plaintiff and the legal representatives of the second and third plaintiff are the appellants.
2. The suit is for permanent injunction. The case of the plaintiffs is as follows:-
The plaintiffs have been in occupation of the suit property for the past 30 years. Originally one Muniyammal was the Chief tenant of the suit property, the second plaintiff as sub-tenant was paying rents to her. Thereafter one Munisamy was receiving the rents from them. Subsequently, the landlord of the property one Kurshid Jahankan Baktcha leased out the property to the plaintiffs and the plaintiffs have been in possession of the suit property as tenants. The said Kurshid Jahankan Baktcha died leaving behind his son Mir Sulthan Mohideen as his legal heir. The plaintiffs have executed separate lease deeds in favour of the said Mir Sulthan Mohideen and the suit property is the vacant site over which they have raised the present superstructures. The defendant, without any right whatsoever, attempted to interfere with the possession of the plaintiff and she also filed a false complaint at Othiyansalai Police Station in February 1982 against the plaintiffs alleging that the plaintiffs were not entitled to continue their possession. On 12.8.1982, the defendant again disturbed them and they have issued a lawyer's notice to her. The defendant has issued a reply notice disputing their claim, hence, the present suit.
3. The defendant filed written statement contending as follows:-
The suit property was neither taken on lease by Muniammal at any point of time nor the plaintiffs were paying rents to her. No separate lease deeds were entered into between the plaintiffs and their alleged landlord; that the defendant has never caused any disturbance as alleged. Originally, the defendants's father Munisamy took the suit site on lease from one Kurshid Jahankan Basha for monthly rent of Rs.25/=. The said Munisamy built the present superstructure and leased out the same to the plaintiffs and other tenants. After the death of Munisamy, the lease hold right devolved on the defendant and her sister Matchangandhi. The original lease between the plaintiffs' father and the landlord Mir Sulthan Mohideen has not been terminated. The defendant has only demanded rent from the plaintiffs for the month of August 1991. The lease agreement between Mir.Sulthan Mohideen and this defendant is subsisting as such no valid agreement could be entered into as alleged between the plaintiff and Mir Sulthan. The defendant is also taking steps to evict the plaintiffs on the ground of wilful default and prayed for dismissal of the suit.
4. Before the Trial Court, the third plaintiff has examined himself as PW1 and marked Exs.A1 to A8. Ex.A1 dated 5.10.1971 rental agreement entered into between Muniammal and the third plaintiff in respect of a bunk shop which belonged to Muniammal, for a period of one year the rent being Rs.1.25 per day. Ex.A2 is the lease deed executed by A.B.Hassan the first plaintiff in favour of Munusamy in respect of the land where the bunk shop is located, for a period of one year the rent being Rs.1.50 per day. Ex.A3 dated 23.12.1981 is the lease deed executed by Mir Sulthan Mohideen in favour of the third plaintiff. Ex.A4 series are rental receipts commencing from 15.11.1982 issued by Mir Sulthan Mohideen in favour of the second plaintiff. Ex.A5 dated 15.11.1982 is the electricity bill issued in the name of the second plaintiff. Ex.A6 dated 25.2.1982 is the advocate's notice issued by the plaintiffs to the defendant. Ex.A7 dated 26.4.1982 is the reply notice issued by the defendant's advocate to the plaintiffs' advocate. Ex.A8 dated 28.2.1983 is the acknowledgment issued by the Pondicherry Municipality for receipt of licence fee from the third plaintiff.
5. The defendant has examined herself as DW1, DW2 Lakshmi, DW3 Venu and DW4 Pascal and marked Exs.B1 to B6. Ex.B1 is the note book indicating receipt of rent from Munusamy, father of the defendant commencing from 18.12.1962 signed by Mir Sulthan Mohideen. Ex.B2 dated 1.1 .1979 is the receipt issued by Munusamy Naicker in favour of Nallathambi letting out a portion in the suit property. Ex.B3 dated 3.5.19 80 is the licence issued by Pondicherry Municipality in favour of Munusamy for running tea stall. Ex.B4 series are application form and bank challan submitted by Munusamy to Pondicherry Municipality for obtaining licence to run tea stall. Ex.B5 dated 4.1.1982 is the defendant's requisition to the Commissioner of Pondicherry Municipality to transfer the tea stall licence in her name. Ex.B6 is the application form submitted by the third plaintiff to the Pondicherry Municipality seeking licence to run the tea stall.
6. The Trial court framed the issues mentioned below:-
1. Whether the defendant attempted to disturb the plaintiffs' possession of the suit property?
2. Whether the suit is not maintainable?
3. Whether the plaintiffs are entitled for issue of permanent injunction against the defendant?
4. To what other relief the plaintiffs are entitled?
The Trial court, relying upon Exs.A1 and A3 lease deed executed in favour of the third plaintiff by Munusamy and Mir Sulthan respectively, Ex.A5 electricity bill paid by the plaintiff, Ex.A6 lawyer's notice issued by the plaintiffs' advocate held that the plaintiffs were in possession of the suit property. The Trial court has come to the conclusion that the suit is maintainable and the plaintiffs are entitled to the relief of injunction and ultimately the decreed the suit.
7. Aggrieved by the judgment and decree passed by the Trial Court, the defendant has filed appeal in A.S. No.8 of 1984 before the Second Additional District Judge, Pondicherry.
8. The first appellate court has framed the issue mentioned below:-
"Whether the plaintiffs are the sub-lessees under the defendant and if so, the plaintiffs are not entitled to a permanent injunction against the defendant. The first appellate court has held that the defendant's father Munusamy had taken on lease vacant site owned by one Jahankan Baktha and after his death, he became the tenant under his son Mir Sulthan. The defendant's father had been enjoying the suit property by letting out the same to the plaintiffs and other tenants who were paying rent to him. After the death of the said Munusamy, all the tenants have been paying the rent only to the defendant. The first appellate court further found that though the plaintiffs have paid the rent upto July 19 81, but, they failed to pay for the subsequent period. The first appellate court further pointed out that PW1 has admitted in his cross examination that other tenants are paying rent to the defendant and DW4 had spoken that the defendant's father was the lessee under Jahankan Baktcha and later to his son Mir Sulthan Mohideen. The first appellate court also pointed out from the evidence of PW1 that he is running tea stall in the suit property under the licence issued in the name of the defendant's father Munusamy which is also seen from Exs. B3 to B6 also indicate that licence was renewed in favour of the defendant's father Munusamy wherein the name of the landlord was mentioned as Mir Sulthan. According to the first appellate court, the above said documents and the evidence were not considered by the Trial court. The first appellate court further held that except PW1 other plaintiffs have not come to the box to give evidence in support of their case and no independent witness was examined by them also. The first appellate court has taken note of the specific case of the defendant that the lease agreement between Mir Sulthan Mohideen and the defendant has not been terminated which is still in existence and even after the death of her father all other tenants in the suit property have been paying rent only to her. The first appellate court accepted the plea of the defendant that she has demanded rent from the plaintiffs for the period commencing from August 1981, but, instead of paying the same, they have chosen to file the false suit. It is also pointed out by the first appelalte court that the contents of reply notice Ex.A7 and oral evidence let in by the defendant proved beyond reasonable doubt that she has demanded only rent from the plaintiffs which cannot be treated as disturbance or interference. Ultimately, the first appellate court allowed the appeal by setting aside the judgment and decree passed by the Trial Court.
9. At the time of admission, the following substantial question of law was framed in this second appeal:-
" Whether in a case in which the plaintiffs' possession upon the propery is admitted, but relationship of landlord and tenant is in dispute, demand of rent by the defendant claiming that she is the landlord, and threat of eviction in the event of default, is an interference in exercise of peaceful possession or not? "
10. Admittedly, the pleadings of the plaintiffs do not indicate as to what is the nature of interference caused by the defendant. Bald allegation in the plaint is that the defendant, without any right whatsoever attempted to interfere with the possession and enjoyment of the suit property by the plaintiffs. Though it is alleged that a police complaint was given by the plaintiffs but the same was not marked as document. No valid evidence either oral or documentary has been let in by the plaintiffs to show that the defendant has interfered with their possession and enjoyment of the suit property.
11. On the contrary, the documents relied on by the defendant proved that she is the lessee under the original owner of the suit property and she in turn let out the suit property to all the tenants including the plaintiffs; that her tenancy was not terminated by the landlord; that the licence issued by the concerned Municipality to run tea stall in favour of her father being used by one of the plaintiffs for running the tea stall. As rightly pointed out by the first appellate court, demanding of rent by the chief tenant from the subtenant would not amount to interference in possession and enjoyment. It is also rightly pointed out by the first appellate court that though the third plaintiff has come to the box as PW1, he failed to state anything about the interference caused by the defendant to the plaintiffs.
12. In a suit for injunction, it is the bounden duty of the plaintiffs to prove the interference caused by the defendant which is mandatory requirement. In this case, the dispute is between the alleged chief tenant and sub tenant. Ex. A7, reply notice sent by the defendant has categorically stated that she has demanded arrears of rent from the plaintiff and not caused any other disturbance or interference. Thus the suit to restrain the chief tenant from demanding arrears of rent from sub-tenant is not at all mai ntainable.
13. The Legislature has taken number of principal rules by which the courts of equity have been guided in the exercise of judicial discretion. The jurisdiction to grant a perpetual injunction is discretionary with the court. The statute provided in certain occasions not to grant perpetual injunction. We have a look on sec.41 of the Specific Relief Act which reads as follows:-
"Injunction when refused – An injunction cannot be granted--
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, and act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to assistance of the court;
(j) when the plaintiff has no personal interest in the matter."
14. In cases where it is not easy to foretell, if the act complained of will cause substantial injury until the injury has actualy happened and in all cases of doubt, the court should pause before it grants a perpetual injunction. An injunction to restrain an act will be refused where it is not reasonably clear that it would cause injury. The court should not act upon vague apprehensions, though it will interfere, where the defendant claims a right to do the thing threatened which the plaintiff alleges to be a wrong. The court will not grant injunction where it appears that any injunction, which may be granted would inflict far more injury on the defendant than any advantage which the plaintiff would derive from it. In this case, the allegations made against the defendant is not reasonably clear that would cause injury to the plaintiffs as such, the first appellate court is right refusing injunction.
15. In granting or withholding an injunction, the court has also to consider the balance of convenience, the materiality of the injury to the plaintiff and the hardship to the defendant. As rightly pointed out by the first appellate court that the defendant has made out a case that she has done nothing except the lawful act of demanding arrears of rent from August 1981 from the plaintiff, which should not be restrained by way of injunction. The first appellate court after careful appreciation of both oral and documentary evidence has rightly refused the injunction sought for by the plaintiff. The argument advanced by the learned counsel that possession of the suit property is sufficient to seek the relief of injunction is untenable.
16. For the reasons mentioned supra, the substantial question of law is answered against the appellants/plaintiffs. Hence, it is unwarranted to interfere with the well considered judgment and decree passed by the first appellate court.
17. In the result, the second appeal is liable to be dismissed and is dismissed. No order as to costs.
23.04.2002 Index:- Yes.
Internet:- Yes.
ssk.
To
1. The II Additional District Judge District Court Pondicherry
2. The II Additional District Munsif District Munsif Court Pondicherry
3. The Section Officer Vernacular Records Section High Court Madras – 600 104 A.KULASEKARAN, J JUDGMENT IN S.A. No.1576/90