Madras High Court
S.I. Thomas vs Balaraman on 17 July, 2012
Author: V. Dhanapalan
Bench: V. Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.07.2012 CORAM :: THE HONOURABLE Mr. JUSTICE V. DHANAPALAN C.R.P.(PD) No. 2531 of 2012 and M.P.No. 1 of 2011 1. S.I. Thomas 2. Jessy Kamalam 3. S.I.Selvam 4. S.I.Gracy 5. Lissy Pappa 6. Pal Samarasam 7. S.Mary Sargunam 8. I.D.Victoria Esther 9. I.D.Portia 10.I.D.Lydia 11.I.D.Peter Raj 12. I.S.Samuel .. Petitioners Versus 1. Balaraman 2. Ravi 3. Jeya Chandran 4. Varalakshmi 5. Ramesh 6. Jalundri 7. Balu 8. Prabhavathy 9. Thilagavathy 10. Vedhadri 11. Thirupurasundari Ammal 12. Senthamarai 13. Raju 14. Ramani 15. Prithiviraj 16. Padmanathan 17. Murugan 18. Kannappan .. Respondents Civil Revision petition is filed under Article 227 of the Constitution of India against the order in I.A. No: 3302 of 2012 in O.S. No: 1269 of 2012 on the file of the IV Assistant City Civil Court, Chennai, dated 26.04.2012. For Petitioners : Mr.V.Lakshminarayan For Respondents : Mr.G.Ethirajulu .. .. .. O R D E R
This Civil Revision Petition has been filed against an order dated 26.04.2012 of the learned IV th Assistant Judge, City Civil Court, Chennai, made in I.A. No: 3302 of 2012 in O.S. No: 1269 of 2012. The revision petitioners are the plaintiffs in the suit and they filed a suit for declaration namely, a. For declaration declaring the sale deed bearing Doc.No.1263 of 1980 dated 29.04.1980 registered in the office of SRO, Saidapet, executed by 1st defendant in favour of 12th & 13th defendants in respect of "C" Schedule property as null and void.
b. For declaration declaring the sale deed bearing Doc.No.2492 of 1980 dated 31.07.1980 registered in the office of SRO, Saidapet, executed by Singaram in favour of 11th defendant in respect of "B" Schedule property as null and void.
c. For declaratrion declaring the sale deed bearing Doc.No.440 of 1981 dated 17.02.1981 registered in the office of SRO, Saidapet, executed by Ramachandran in favour of Saradha ammal in respect of "D" Schedule property as null and void.
d. For declaration declaring the settlement deed bearing Doc No.2223 of 1980 dated 25.07.1986 registered in the office of SRO, Saidapet, executed by 12th and 13th defendants in favour of 14th defendant in respect of "C-1" Schedule property as null and void.
e. For declaration declaring the Power of Attorney bearing Doc.No.254 of 1995 dated 22.02.1995 registered in the office of SRO, Adyar, executed by 12th & 13th defendants in favour of 15th defendant in respect of "C-2" Schedule property as null and void.
f. For declaration declaring the Power of Attorney bearing Doc.No.255 of 1995 dated 22.02.1995 registered in the office of SRO, Adyar, executed by 12th & 13th defendants in favour of 15th defendant in respect of "C-3" Schedule property as null and void.
g. For declaration declaring the Power of Attorney bearing Doc.No.1035 of 1995 dated 05.07.1995 registered in the office of SRO, Adyar, executed by 12th & 13th defendants in favour of 14th defendant in respect of "C-1" Schedule property as null and void.
h. For declaration declaring the sale deed bearing Doc.No.5548 of 2006 dated 27.07.2006 registered in the office of SRO, Saidapet, executed by 15th defendant as power agent of 12th to 15th defendants in favour of 17th defendant in respect of "C-4" Schedule property as null and void.
i. For declaration declaring the sale deed bearing Doc.No.1884 of 2007 dated 09.03.2007 registered in the office of SRO, Saidapet, executed by 16th defendant as power agent of 11th defendant in favour of 17th defendant in respect of "B-1" Schedule property as null and void.
j. For declaration declaring the sale deed bearing Doc.No.1891 of 2007 dated 09.03.2007 registered in the office of SRO, Saidapet, executed by 16th defendant as power agent of 11th defendant in favour of 17th defendant in respect of "B-2" Schedule property as null and void.
k. For declaration declaring the sale deed bearing Doc.No.2589 of 2007 dated 29.03.2007 registered in the office of SRO, Saidapet, executed by 15th defendant as power agent of 12th & 13th defendants in favour of 17th defendant in respect of "C-5" Schedule property as null and void.
l. For permanent injunction restraining the 17th defendant, his men, agents, servants or any body acting on his behalf from in any manner creating encumbrance alienation or alteration in respect of suit "A" schedule property.
2. Plaintiffs also filed an interlocutory application under Order 39 Rules 1 and 2 of C.P.C. The 17th respondent has filed his counter on 27.02.2012. The Trial Court heard the counsel for the petitioner and issued notice to the respondents and granted an interim direction not to create any encumbrance or alienation or alteration in respect of "A" Schedule property and also directed that affidavit of service has to be filed on or before 08.03.2012. Thereafter, the matter has been taken up on 08.03.2012, 16.03.2012, 21.03.2012, 30.03.2012 and on 12.04.2012. On that day, I.A. No: 5955 of 2012 an advance hearing petition was allowed. Thereafter, the matter has been listed on 16.04.2012 for the counter of R.1. Then again, on 17.04.2012, the matter has been taken up and adjourned. On 19.04.2012, the trial Court heard the counsel for the parties and noted that as there was sufficient time given and even then there was no representation for R.1 and, therefore, R.1 was set exparte. Matter was posted to 20.04.2012. On that day, counsel for R.2 to R.9 undertook to file vakalat. Injunction was granted against R.17 only. Interim order already granted is extended. Thereafter, on 23.04.2012, petitioners / plaintiffs filed a petition for re-opening and a third party also filed impleading petition. The matter stands posted on 24.04.2012 and interim order already granted has been extended. Then on 24.04.2012, the matter has been ordered to be called on 25.04.2012; interim order extended and similarly, on 25.04.2012 taking note of the fact that I.A. No: 6566 of 2012 is pending the matter has been posted to 26.04.2012 with extension of interim order. Then, on 26.04.2012, the trial Court passed an order to the effect that, " Both sides present. Passed over 4.30 p.m. Both side counsels present. Both side heard. For interim order passed over."
3. Finally, the trial Court passed the following order :
@,Wjpahf epYitapy; cs;s bknkh Impleading Petition Contempt Petition Mfpa kDf;fspd; eltof;iffSf;F gpwFjhd; ,ilf;fhy cj;jputpid Fwpj;J MuhaKoa[k; vd;gjhYk; ,e;epiyapy; Vw;fdnt tH';fg;gl;l ,ilf;fhy cj;jputhdJ njitaw;wJ vd;gjhy; mjid ePl;of;fg;glntz;oa mtrpakpy;iy vd;gjhft[k; nkw;go kDf;fnshL ,k;kDita[k; nrh;e;J elj;Jtjw;F cj;jputplg;gLfpwJ/ miHf;f 05/06/2012 @ As against the aforesaid order, the petitioners are before this Court in the present Civil Revision Petition.
4. Mr. V. Lakshminarayan learned counsel appearing for the revision petitioners has strenuously contended that in the absence of any prejudice shown to vacate the interim order granted, on the ground that only after deciding the impleading petition and the contempt petition, the petition for interim direction can be taken up, the trial Court has vacated the interim order granted by it which is an error manifestly committed by the trial Court.
5. On the other hand, Mr. G. Ethirajulu learned counsel appearing for the 17th respondent would state that the trial Court heard the counsel appearing on both sides and then passed the impugned order as the impleading petition as well as the contempt petition are pending. Such an order passed, after considering the issue in question, cannot be set aside.
6. Heard the learned counsel for the revision petitioners and the counsel appearing for the respondents and perused the material documents made available on record.
7. An analysis of the case would reveal that the revision petitioners, as plaintiffs, filed the suit for a declaration to declare various registered sale deeds and registered Power of Attorney deeds as null and void and also sought an permanent injunction restraining the 17th defendant, his men, agents, servants or any body acting on his behalf from in any manner creating encumbrance, alienation or alteration in respect of suit "A" schedule property. The trial Court, on hearing the counsel for the plaintiffs and on considering the documents marked, passed the following order :
" ORDER DATED : 27.02.2012 Petitioner counsel present. Heard. Petitioners are decendants of Chinnamuniyan. He is the owner of the property. Doc. No: 1 and 2 are government order. Doc. No: 3 to 5, Doc. No: 9, 12 and 13 are sale deeds. 17th respondent is no way connected to the property. Doc. No. 1 and 2 are in favour of petitioners. Doc. No: 14 is a complaint given by 1st plaintiff. Doc. No: 15 C.S.R. Doc. No; 16 is a First Information Report against 17th respondent. Doc. No: 17 is a representation to the Tahsildar. Doc. No: 18 is a power of attorney. In this stage 17th respondent is directed not to create any encumbrance or alienation or alterations in respect of "A" Schedule property. Issue notice to respondents and Affidavit of Service to be filed on or before 08.03.2012. If otherwise the directions shall stand dismissed automatically. Call on 08.03.2012. "
8. Thereafter, the matter has been taken up on 08.03.2012, 16.03.2012, 21.03.2012, 30.03.2012 and on 12.04.2012. On that day, I.A. No: 5955 of 2012 an advance hearing petition was allowed. Thereafter, the matter has been listed on 16.04.2012 for counter of R.1. On 17.04.2012, the matter has been taken up and adjourned. On 19.04.2012, the trial Court heard the counsel for the parties and noted that as there was sufficient time given and even then there was no representation for R.1 and, therefore, R.1 was set exparte. Matter was posted to 20.04.2012. On that day, counsel for R.2 to R.9 undertook to file vakalat. Injunction was granted against R.17 only. Interim order already granted is extended. Thereafter, on 23.04.2012, petitioners / plaintiffs filed a petition for re-opening and a third party also filed impleading petition. The matter stands posted on 24.04.2012 and interim order already granted has been extended. Then on 24.04.2012, the matter has been ordered to be called on 25.04.2012; interim order extended and similarly, on 25.04.2012 taking note of the fact that I.A. No: 6566 of 2012 is pending the matter has been posted to 26.04.2012 with extension of interim order. On 26.04.2012, the trial Court took a view that, as the interlocutory application could be decided finally only after deciding the pending impleading petition and contempt petition, finding no reason to continue the interim order already granted, vacated the interim order and directed that all the petitions to be heard together. Such order is under challenge in this Civil Revision Petition.
9. Order 39 Rule 1 and 2 of the Code of Civil Procedure reads as under :
"ORDER XXXIX"
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary injunctions
1. Cases in which temporary injunction may be granted Where in any suit it is proved by affidavit or otherwise
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.
10. From a reading of the above provision it is clear that the Court on its own can grant temporary injunction until the disposal of the suit or until further orders. In the instant case, the trial Court took a view that since the petitioners' counsel is not adjudicating the matter and the statement made by him in the open Court that the plaintiffs are not prepared to conduct the case in respect of the interim application and that they wanted to conduct the case not only in the presence of the 17th defendant alone but in the presence of all the other defendants also, there arises a necessity to hear all the defendants and further in view of the fact that hearing of the interim application can be taken up only after deciding the pending impleading petition and the other petitions, the continuance of the interim order already granted is not necessary. Accordingly, the trial Court came to the conclusion that it is not necessary to extend the interim order.
11. True that the trial Court has power to decide whether to grant / continue the interim order or not while safeguarding the interest of the parties and in respect of the property in dispute. In case if the injunction is not extended what could be the approach of the petitioners and the respondents are to be taken note of. It is placed on record by the learned counsel for the parties that there are attempts made to proceed with the construction and this statement is resisted by the other side either. Whether construction was made in violation of the temporary injunction or not is a matter to be taken note of by the trial Court while finally deciding the suit. In a case where there were certain applications filed, it is for the trial Court to take note of the situation and arrive at a decision without prejudice to the parties concerned and at the same time to protect the interest of the parties, particularly in a property dispute. The Trial Court, though has taken a view that it was the counsel's statement that he is not prepared to proceed with the case for adjudication, the Court has to weigh the situation and balance the position and decide as to what is the prima facie decision to be taken.
12. Considering the circumstances pleaded in the case on hand, the trial Court ought to have taken up the applications made under Order 39 Rule 1 and 2 independently to arrive at a final conclusion or should have tried all the applications together and then take a decision as to whether the interim order already granted has to be continued or not. In my considered opinion, the trial Court's decision in not extending the interim order is not in accordance with the provisions of Order 39 Rule 1 and 2 C.P.C. which mandates that the Court may grant a temporary injunction to restrain such act, until the disposal of the suit or until further orders. In the given circumstances, the stopping of the interim injunction by not extending it further abruptly is not proper. However, the statement made by the counsel in the open Court that he is not prepared to adjudicate the case is also a matter to be looked into. In such circumstances, this Court is of the opinion that it would be proper to direct the trial Court to take up all the applications namely the applications filed under Order 39 Rule 1 and 2 C.P.C. and the impleading applications filed by third parties. Accordingly, this Civil Revision Petition stands disposed of with a direction to the trial Court to take up all the interlocutory applications together and decide the same within a period of two weeks from the date of receipt of a copy of this order. Till such time, the parties to this proceeding are directed to maintain status quo as on today (i.e. 17.07.2012). Connected miscellaneous petition is closed. There shall be no orders as to the costs.
gp 17..07..2012
Index :: Yes
Website :: Yes
Note :: Registry to issue order copy
on or before 19.7.2012.
V. DHANAPALAN, J.
C.R.P.(PD) No.
2531 of 2012
17.07.2012