Madras High Court
Unknown vs S.Rajeswaran on 12 September, 2010
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12/09/2010 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN A.No.4592 of 2010 and O.A.No.696 of 2008 in C.S.No.605 of 2008 ORDER :
S.RAJESWARAN, J.
The application in A.No.4592 of 2010 has been filed by the applicants/defendants to vacate the injunction granted in O.A.No.696 of 2008 dated 16.07.2008.
2. The Original Application in O.A.No.696 of 2008 has been filed by the applicant/plaintiff to grant an order of interim injunction restraining the respondents/defendants their men, servants, agents and assigns from any way encumbering or alienating the schedule mentioned property pending and disposal of the suit.
3. For the sake of convenience, the parties are referred to as per their ranking in the suit.
4. The case of the plaintiff is that he is the owner of the suit schedule property. As he had various legal proceedings to attend at Neyveli, he executed a Power of Attorney in favour of first defendant on 02.01.2006. The first defendant is his brother-in-law, i.e., his wife's brother. According to the plaintiff, the Power of Attorney did not empower the agent to settle the property on any person. As the Power of Attorney did not furnish any accounts, he executed a deed of revocation of Power of Attorney on 06.07.2007. On 10.06.2008, he came to know that the first defendant executed a settlement deed on Power of Attorney of the plaintiff settling the scheduled properties in favour of his wife/the second defendant. The Settlement Deed was dated 18.06.2007 and was registered as Document No.1500/07 on the file of the Sub Registrar, Mylapore. The case of the plaintiff is that the Settlement Deed is bad and void abinitio as no power was given to the plaintiff to settle the property in favour of his wife. Hence he filed the above suit assailing the Settlement Deed dated 18.06.2007 and also for permanent injunction. Along with the suit an application for interim injunction was filed in O.A.No.696 of 2008.
5. This Court ordered notice to the defendants in O.A.No.696 of 2008 on 22.06.2008. After service, as there was no representation by the defendants, an interim order of injunction was granted by this Court on 16.07.2008 for a period of four weeks. On 13.087.2008, as there was no representation for the defendants, this Court extended the order of injunction until further orders.
6. Now the defendants entered appearance through their counsel and filed A.No.4592 of 2010 to vacate the order of injunction.
7. I have heard the learned counsel appearing for the applicant/plaintiff in O.A.No.696 of 2010 and the learned counsel appearing for the applicants/defendants in A.No.4592 of 2010. I have also gone through the documents available on record including the vacate stay petition filed by the applicants/defendants.
8. The main contention of the plaintiff in the suit is that the Power of Attorney dated 02.01.2006 executed in favour of the first defendant did not empower him to settle the schedule properties in favour of second defendant.
9. A perusal of the Power of Attorney dated 02.01.2006 would show that first defendant was given the power to sell, lease, mortgage by Private Treaty or by any other mode of conveyance or transfer of schedule property to any person. In such circumstances the plaintiff has failed to establish a prima facie case of a bar in the Power of Attorney preventing the first defendant from settling the property in favour of second defendant. In the absence of a prima facie case, it is for the plaintiff to prove his case during trial by letting in acceptable evidence. Further even if the interim order is not granted, the plaintiff is protected by the Doctrine of lispendens and therefore it cannot be said that the plaintiff would suffer irreparable injury in the event of not granting an order of injunction. The balance of convenience is also in favour of the plaintiff.
9. The citations produced on behalf of the plaintiff do not support the case of the plaintiff as in those citations the injunction in issue was with regard to possession. Hence the injunction is not for protecting the possession and it is for restraining the defendants from alienating the suit schedule property.
10. Therefore, I have no hesitation in vacating the order of injunction and accordingly the application No.4592 of 2010 filed by the defendants is allowed and the order of injunction granted by the Court in O.A.No.696 of 2008 is vacated. Consequently, the O.A.No.696 of 2008 is dismissed. No costs.
12.09.2010 cse Index:Yes/No Internet:Yes/No S.RAJESWARAN,J.
Cse Pre-delivery order made in A.No.4592 of 2010 and O.A.No.696 of 2008 in C.S.No.605 of 2008 12.09.2010