Madras High Court
P. Chenchu Ramiah vs A.M. Noohu Nachia And Anr. on 30 October, 1998
Equivalent citations: (1999)1MLJ324
ORDER S. Subramani, J.
1. First defendant in O.S. No. 5628 of 1998, on the file of IV Assistant Judge, City Civil Court, Madras, is the revision petitioner. The revision has been filed under Article 227 of the Constitution of India.
2. First respondent herein filed the simple suit O.S. No. 5628 of 1998, for injunction to restrain the defendants in the suit who are two in number, from interfering with her peaceful possession and enjoyment of the suit property. In the plaint, it was stated that she purchased the property on 5.2.1966 and that she is enjoying the same. It is also stated therein that she is staying at her native place at Thanjavur. Property Tax, water tax and Government dues in respect of the property are paid by representative of plaintiff in the name of plaintiff, and that she had been in uninterrupted possession and enjoyment of the suit property. It is also alleged in the plaint that the defendants are rank trespassers, and, taking advantage of the absence of plaintiff, defendants are trying to grab the suit property and in that process, defendants, on 18.8.1998 attempted to dispossess the representative of plaintiff and her from the suit property with a view to take control of the same. But, because of the timely intervention of the representative of plaintiff, the evil design of defendants did not materialise. Subsequently, defendants and their henchmen are trying to dispossess the plaintiff and her staff from the suit property by resorting to illegal means. Cause of action is stated to have arisen at Chennai on 5.2.1966 when plaintiff purchased the suit property and on 18.8.1998 when the defendants were attempting to enter into the suit property and subsequently when the defendants were attempting to enter into the suit property.
3. Along with the plaint dated 28.8.1998, plaintiff filed I.A. No. 13342 of 1998 for injunction.
4. An ad interim injunction was obtained by plaintiff, which reads thus:
Heard. Perused documents. As per document No. 1, registered sale deed dated 5.2.1966, petitioner had purchased the suit property. Document Nos. 2 and 3, viz., Property Tax receipt dated 18.9.1997 and receipt for C.M.W.S.S.B. dated 19.9.1997 stand in the name of petitioner, Prima facie case made out. Interim injunction till 10.9.1998 and notice by then.
5. Revision petitioner, on 10.9.1998, has filed a counter alleging that there is a fraud committed by plaintiff, and the business that has been conductefd by him has now been taken possession forcible under the guise of implementing the interim order. It is his case that he is running a business by name New Sangam Lodge, and he had been a tenant of this building for the last more than 25 years. He has also said that he has taken on lease the property owned by plaintiff, and he has paid her huge amount by way of advance at the inception of tenancy. According to him, plaintiff has also executed a lease deed in his favour. There were prior court proceedings between them, and he has also installed four telephones in his lodge. He is regularly paying the monthly rent by demand draft through registered post acknowledgment due. According to him, the last of such payment was made in the first week of August, 1998 and the same was received by plaintiff on 10.8.1998. He has also said that all the records of the business, his jewellery, furniture, etc. are now in the business place, and on 4.9.1998, he was forcibly dispossessed and he filed a police complaint which has been registered as 1702/DC(Cr.) Com/98 at T. Nagar Police Station. It is also stated that he sent a telegram to the Commissioner of Police on the very same day. It is said that on the basis of the interim Order, he has been thrown out of the business, and all his valuables, including gold, cash, records, are now with plaintiff, There are 27 rooms in his lodge and all of them are well furnished.. The wooden cots, tables, chairs, linen, foam mattresses alone will be over Rs. 10 lakhs in value. He prayed for the early vacating of the interim order.
6. It is also said that on 4.9.1998, some of his staff members have been kidnapped, for which he filed a complaint before police, and he is also intending to file a habeas corpus petitions before this Court in connection with the same. He has denied the allegation that he is a rank trespasser. According to him, he is in lawful possession as tenant, and he never indulged in unlawful activities. Petitioner has also said that he wanted to cross-examine the plaintiff and he challenged her to appear in court.
7. It is the case of the petitioner that oh 16.9.1998, after filing the counter, he argued the case in full and the matter was adjourned to 18.9.1998 for arguments by plaintiff's counsel. It is also his case that the address given in the plaint as well as in various notices is not the correct address. The matter came on 18.9.1998, on which date the court below adjourned it to 22.9.1998 since notice to 2nd respondent was not returned. On 22.9.1998, second respondent filed Vakalath and sought time upto 15.10.1998. The matter was adjourned to 15.10.1998. In the meanwhile, the revision petition was filed on 21.9.1998.
8. When the revision petition came for admission on 24.9.1998, I ordered notice of motion and the interim order was also suspended till 30.10.1998. After service, respondents also entered appearance and filed counter.
9. Even though the revision has been filed against ad-interim order, both counsel argued in detail, and both of them have filed typed set of papers to substantiate their respective contentions.
10. In fact, learned Counsel for both parties placed before me some more documents which were not placed before the trial court. Why I am stating this is, because, arguments of learned Counsel for the parties were not restricted to the propriety of the impugned order, but something more, and the entire injunction petition was heard by me on merits. [Italics]
11. At the same time, learned Senior Counsel for first respondent submitted that the revision itself is not maintainable since the revision petitioner has not come to this Court with clean hands.
12.1 have already extracted the ad-interim order passed by the court below. Learned counsel for petitioner argued that the impugned order is not in compliance with law, and it is also opposed to various decisions of the Honourable Supreme Court.
13. Learned Senior Counsel for first respondent advanced arguments on the merits of the case, and he justified the impugned Order, and he wanted the injunction order to be continued. His argument was that maintaining the interim order, direction must be given to the lower court to dispose of the main injunction application.
14. Learned Senior Counsel for petitioner, who has filed counter before the lower court argued the injunction application as if it is a suit, and his main argument was that first respondent herein has played fraud on court and obtained ad-interim injunction order and by implementing the same, she has dispossessed him from the property illegally Revision petitioner, along with the revision had moved for suspension of the interim order, and I ordered the same as prayed for in C.M.R. No. 13608 of 1998. First respondent (plaintiff) as well as second respondent has filed counter in this revision. The role of the second respondent, and why he has been impleaded in the suit, will be dealt within the course of this order.
15. After hearing learned Counsel for the parties, I feel that I should dispose of the injunction application itself in this revision. Disposal of the injunction petition amounts to disposal of the suit itself, for the suit is only for a bare injunction. Any finding on the injunction application, though interlocutory in nature, will make the suit infructuous.
16. Before going to the merits of the case, I have to consider the procedure adopted by the court below. As 1 said already, even though the suit was filed on 28.8.1998, no order was passed on that date. Plaintiff filed a memo on 31.8.1998 that since urgent relief is required, she may be permitted to move the same on the day itself. Permission was granted, and in the interim injunction application, lower court passed the impugned order. Even though the injunction order was obtained on 31.8.1998 and the affidavit is dated 1.9.1998, it was filed into court only on 2.9.1998, stating that the copy of the plaint, affidavit in support of the injunction application and the suit documents 1 to 3 have been furnished along with the process application in PS. No. 30006, dated 1.9.1998. Notice to respondent through registered post has also been taken. [Italics] It was also stated that the deponent has also enclosed a copy of the receipt for having sent notice through registered post to the respondent and has complied with Order 39, Rule 3, C.P.C Though the affidavit was sworn on 1.9.1998, the postal receipt bears the date of 2.9.1998. That means, notice to petitioner herein and others were sent by registered post only on 2.9.1998. The postal receipt and affidavit were filed in court only on 2.9.1998. Why I am giving importance to the dates is, by sending it through registered post, petitioner could receive it only on 4.9.1998, which happened to be a Friday, Saturday and Sunday are holidays. Complaint of the petitioner herein is that on 4.9.1998, he was forcibly dispossessed from the building in question, and he was thus effectively prevented from moving the court immediately for getting any interim relief. The only step that he could take was, to give a complaint to the police. That was done immediately, and a crime has also been registered. But no further action has been taken.
17. As already said, the allegation in the plaint is that the plaintiff has been in uninterrupted possession and enjoyment of the suit property from the date of sale deed and the defendants are rank trespassers, and they are attempting to interfere with her possession, and such an attempt was made on 18.8.1998. This allegation has been given a go by by first respondent herself. According to learned Counsel for first respondent, petitioner along with one N. Chinna Venkiah (2nd respondent) were joint lessees of the building on the basis of a registered lease deed dated 22.3.1984 for a period of nine years, and they have been doing lodging business. In the counter affidavit filed before this Court along with C.M.P. No. 14318 of 1998 to vacate the interim order, it is said thus:
...On the expiry of the said agreement on 31.3.1993, no further lease was executed by me in their favour and I had been requesting them to vacate and deliver vacant possession. As a result of such persuasion, the partnership represented by one of the partners Narella Chinna Venkiah was paid a sum of Rs. 17.50 lakhs in full and final settlement of the claims of the partnership of the said two persons through my financier Thiru L. Dharamchand and on acceptance of the said amount, on 12.8.1998 and after passing necessary receipt in this behalf, the said Narella Chinna Venkiah vacated the premises and handed over vacant possession of the suit premises, to me plain-tiff in the suit. True xerox copies of the document are filed in the typed set of papers filed with this counter affidavit. Necessary receipts for having accepted the said amount and having delivered possession has also been duly executed and delivered to me on 12.8.1998, From 12.8.1998, I am in possession of the property in question. My title to the property has not been disputed and cannot be disputed. The allegations made in the affidavit under counter that his partners and certain employees had been abducted by my agents is totally false and false to the knowledge of the petitioner. I state that the said partner Narella Chinna Venkiah had in his sworn statements admitted the above said facts and he himself had admitted that nobody had been abducted by my agents.
It is further stated in paragraph 4 of the affidavit thus:
I am advised and respectfully submit that in law a partner can (represent not only himself but also all other partners and the firm It is no ground to state that no agreement was reached with him though an agreement was reached with his partner, which agreement is binding on the petitioner as well as the firm. As a matter of fact, the licences to run the lodge obtained from the police and the Corporation are in the joint names of the petitioner and his partner Narella Chinna Venkiah...
Even though the first respondent has thereafter stated that the petitioner herein has come to this Court with a false case, one thing that is admitted in the counter is that the petitioner was doing business and one of the partners has surrendered to her on 12.8.1998 on receipt of Rs. 17.50 lakhs, and the person who surrendered being a partner, is the agent of the petitioner also, and thus she has obtained possession. The statement in the plaint shows that what she pleaded before the trial court was false. Apart from the same, first respondent herself has filed the lease deed before this Court. The lease deed has been executed in favour of petitioner and another. A reading of the lease deed does not show that the document has been taken on behalf of the firm. The document stands in the individual names of two persons. It is also seen therefrom that the lease was taken by those two persons for the purpose of their own business of running a lodge. [Italics] Both of them have made themselves liable for rent. Both of them have together paid the advance amount, and even before this document of 1984 came to be executed, there was an earlier deed dated 7.2.1979, and the lease was for period of four years. After the expiry of the term of the first lease, while the tenants were holding over the property, the lease dated 22.3.1984 was executed. It is a joint lease as is evident from the document itself.
18. Relevant portions of the affidavit of first respondent which I have extracted earlier, do not show that the petitioner has surrendered the property to the first respondent. A reading of the statement makes it clear that the dealing was only with the second respondent herein, and he was acting as agent of a firm. The petitioner herein has produced a copy of the partnership. It is true that the partnership came into existence long after the lease. It is dated 1.4.1992, while the lease was subsisting. The partnership has nothing to do with the lease right and the partners included not only the second respondent but six others also, including a minor. The partnership deed only shows that in the premises in question, they are doing a lodging business. The business is partnership. But in the case of the property, the firm has no case that it is also an asset of the firm. 1 have already said that a reading of the lease deed shows that two individuals have taken the property on lease in their individual capacity in which they have taken few others as partners to do the business. Even in the counter of the first respondent, in paragraph 2, it is only said that she entered into lease arrangement with two persons in respect of the suit property in question and she was requesting them to vacate and deliver vacant possession.
19. It is true that second respondent is supporting the case of first respondent, and he has also filed affidavit before this Court that he has received Rs. 17.50 lakhs and has surrendered vacant possession.
20. It is here, the relevancy of paragraph 4 of the counter affidavit gains importance. It is said that the second respondent has acted as agent for all the other partners, and reliance was placed on Section 19 of the Indian Partnership Act. I do not think. Section 19 of the Partnership Act has any application here. As I said earlier, the lease is not in favour of the firm, and the lease right absolutely belongs to the petitioner and second respondent. Merely because they are doing business in the lease premises, the lease right will not become an asset of the firm. Section 19 of the Indian Partnership Act entitles a partner to act on behalf of the firm, and it also says that the partner is an agent of the other partners. I do think that Section 19 of the Partnership Act envisages a case of agency even to liquidate a business. The business which is being run in a building, cannot be liquidated by interpreting Section 19 of the Act. For winding up a business, concurrence of other partners is required, and only those acts which are done in the usual course bind the firm. Even in respect of a compromise or relinquishment of any claim or portion of a claim regarding the asset of a firm, there is no implied authority unless there is usage or customs. If that is the position even as per the section, the right to wind up a business can never be given to an individual as contended by learned Senior Counsel for first respondent. The deed which has been produced by petitioner shows that the management is vested with working partners. The working partners are six in number, and no one is given a larger right in the management except in the share of profits. It is also clear from paragraph 13 that even the bank account was operated jointly, and there is also prohibition that no loan or advance shall be made to third parties without mutual consent of all partners. A reading of the partnership deed shows that all of them will have to act jointly for every actions. Even in general cases Section 19 of the Act applies, I read in the deed a contract to the contrary. According to me, Section 19 of the Partnership Act will have no application, when the lease is not an asset of the firm. Even assuming that it is an asset of the firm, second respondent alone is not competent to liquidate the business, nor can he handover the property to first respondent. Once it is found that the lease belongs to two individuals, what is the effect? This has been considered by our court in Gopaldoss Family Trust Estate v. Michaelswami (1964)2 M.L.J. 242, wherein it was held thus:
The question, however, remains whether such a surrender by one of the two lessees would terminate a lease, Section 111(e) of the Transfer of Property Act provides that:
A lease of immovable property determines by express surrender, that is to say in case the lessee yields up his interest under the lease, to the lessor by mutual agreement between them.
I am of opinion that if there is a plurality of lessees; the surrender must be by all the lessees in favour of the lessor, Under the lease which is an indivisible joint one, a right to enjoy immovable property, has been created in favour of the lessees jointly and surrender by one of such lessees cannot prejudice or effect the rights of the other lessees.
21. In Murugayya Angurar v. Natarajaiyer (1969)1 M.L.J. 503, a Division Bench considered a similar question, following a decision of a Division Bench of the Calcutta High Court reported in Bejoy Chand v. Kali Prasanna A.I.R. 1925 Cal. 752 and held thus:
...If one considers a lease to joint lessees for a term certain with a right of renewal, it would be obvious that both must join in requiring a renewal. In Bejoy Chand v. Kali Prasanna, a Bench of the Calcutta High Court has held that it is necessary in order to bind even a joint tenant that the notice must be addressed to and served on him in one of the ways mentioned in Section 106 of the Transfer Property Act and that the service of notice on one of the joint tenants would not bind the other joint tenants on whom notice was not served. Cultivating tenant' as defined in the Cultivating Tenants Protection Act includes the heirs of a cultivating tenant. It could not be said that if one or more heirs find it inconvenient to cultivate the land and seek avocation elsewhere, the tenancy would come to an end even as regards the other cultivating tenants in actual possession of the land. Thus, the alleged, surrender of the lease by the first plaintiff cannot obviously bind the second plaintiff....
22. Similar question again came to consideration in the decision reported in Rasappa Gounder v. Ramasamy . In that case, learned Judges said that in the case of a joint lease, one joint tenant may surrender his share, But the same will not affect the other joint lessee, and the remedy of the person who seeks possession on the basis of surrender, is by way of suit for partition. Learned Judge observed that a suit for injunction will not apply, but they did not conclude the same, on the ground that the parties to the suit had agreed for a partition in that suit itself. Both the above decisions were also considered by the learned Judge in that case. Relevant portion or the decision reads thus:
...The learned Counsel for the appellant relied on a decision of Rarnamurti, J. in Gopaldass Family Trust Estate v. Michaelswami (1964)2 M.L.J. 242, and contended that one of the lessees cannot surrender his interest in favour of the lessor. It is true in that decision, the learned Judge has held that in case of plurality of lessees, the surrender must be by all the lessees in favour of the lessor. In support of this view, the learned Judge has relied on Leek and Moorlands Buildings Society v. Clark (1952)2 Q.B. 788. In the English case cited, the lease was in favour of the husband by the wife and it was held that one of the joint lessees cannot surrender the rights held jointly before the full period of lease has run out and the lessee who had not joined in the surrender was not estopped from asserting his rights as a joint tenant. It is seen from the facts in the case before Rarnamurti, J., that surrender by one of the lessees was of the entire interest and this surrender was relied on to evict the other lessee as well as if one of the lessees can surrender the entire lease. The learned Judge held that one of the lessees cannot surrender the entire right including the others and if there is to be a valid surrender and termination of the entire lease, all the lessees had to join. Apart from this distinction, I am also unable to agree that the decision in Leek and Moorlands Building Society v. Clark, could be applied in India. As pointed out by learned Judges of the Bombay High Court in Deyusubhana v. Badhuddin Hussain, under the English law if one of the joint tenants dies or ceases to exercise his interest, the other joint tenant takes the whole of the interest, by the principle of survivorship. But the law in our country is different. In such a case unless in the grant or lease itself, there are express words to say that the right will go by survivorship as held in Venkayya v. Subba Rao, 1956 An. W.R. 1093, the right of the deceased would devolve on his legal heirs, the decision in Leek and Moorlands Building Society v. Clark is, therefore, not applicable. I am also unable to agree with the learned Judge that the decisions in Deyusubhana v. Badhuddin Hussain and Bindu v. Vithoba A.I.R. 1931 Nag. 159 are in any way distinguishable. The decisions of Rarnamurti, J., was referred to by a Division Bench of this Court in Murugayya Angurar v. Nataraja Iyer in that case also the surrender by one of the lessees was put against the other lessee, who did not surrender, as if one of the lessees could surrender the entire lease-hold right. Relying on the decision of Rarnamurti, J., they held that there was no valid termination of the entire tenancy. But there was no occasion for them to consider whether one of the lessees can himself surrender his own interest leaving the interest of the other lessees intact. That was the question for consideration here, and, for the reasons set out earlier, I am of opinion, that one of the lessees can surrender his interest in the lease-hold in favour of the lessor in which case the lessor will be entitled to call for partition of that interest alone.
[Italics supplied]
23. It is to overcome this legal impediment, affidavits have been filed by second respondent supporting the claim of the first respondent wherein he has said that it was with the concurrence of petitioner herein, surrender was effected. If it was with the concurrence of the petitioner, that cannot be without the knowledge of the first respondent. In the counter-affidavit of the first respondent, she has no case that the petitioner was consulted for surrender and he gave his consent. Another affidavit has also been filed by third party by name C.H. Ramaniah, who is the maternal uncle of petitioner, In civil cases, how far affidavits of third parties are relevant, is in doubt. This Ramaniah is also a party to that deed. In the affidavit he has no case that he was consulted, nor for the lease property belonged to the firm. It is also his case that in the very same affidavit, he has only said that the lease was executed by the plaintiff in favour of defendants. The affidavit also makes it clear that the lease is not an asset of the firm, and he was also not consulted. He only says that he was aware that the petitioner also gave his consent for surrender.
24. The last payment of rent is dated 6.8.1998 and the same was sent by registered post acknowledgment due and received by 1st respondent on 10.8.1998. The alleged surrender is dated 12.8.1998. A business which was carried on for the last more than 25 years, could not have been liquidated all on a sudden. If they intended to wind up and surrender the building. Various other problems will have to be settled, including the problems of the labourers and also of the very same partners. Taking into consideration these circumstances, and also various averments in the counter-affidavit, I do not think that the case put forward to justify the interim order could be accepted.
25. Learned counsel for petitioner also submitted that Ramaniah, who is a partner, has signed the original partnership deed, and he wanted me to compare the signature found in the affidavit with the signature found in the partnership deed. The very same signature appears in the receipt dated 12.8.1998 alleged to have been given by second respondent to first respondent. These signatures have no comparison with the admitted signature in the partnership deed. In this connection, some affidavits have also been filed by second respondent, implicating learned Counsel for petitioner also. On a reading of the same, I feel that those affidavits have been filed only to prejudice the mind of court. According to second respondent, he has also surrendered possession. Why he has taken so much pains in filing affidavit after affidavit. The statement of second respondent itself is suspicious.
26. As I said already, in the plaint the allegation is that both the defendants attempted to trespass into the suit property, and such an attempt was made on 18.8.1998. At the time when the revision was argued, no argument was put forward by learned senior counsel for first respondent that the second respondent made any such attempt. In fact, he was also relying on the affidavit of second respondent. On a perusal of the entire records, I feel that the landlady was in a position to get at one of the tenants under the mistaken belief that if she gets possession from him, the entire lease right could be extinguished. But the petitioner did not yield to that pressure and from the available records, it is clear that he was never a party to the so-called surrender. Prima facie no materials have been placed before court to show that the petitioner herein agreed to surrender his right. Possession did not pass as alleged by first respondent and petitioner was in possession till 4.9.1998.
27. When the petitioner herein has not surrendered his right and was in possession naturally, on the basis of the decisions referred to supra, the remedy of the first respondent herein is to file a Suit for partition, and she cannot forcibly dispossess the petitioner. Proceedings of the lower court were also taken by first respondent in such a way that no timely action could be taken by the petitioner. He was dispossessed on a Friday. i.e., 4.9.1998 and the next two days were holidays, and when the petitioner preferred a complaint before police, they were also not helpful, and by the time counter-affidavit was filed before court, petitioner herein was out of the property.
28. Narration of the above facts shows that the first respondent herein misused the ad-interim injunction to achieve an illegal purpose of getting possession of the property which she did not have till then. The plaint does not disclose anything. She has suppressed material facts in the plaint, and ad-interim injunction was granted only on believing the allegation in the plaint, and the Court below was made to believe that the first respondent herein (plaintiff) was in possession from the date of sale till date of suit. She has never disclosed any of these facts in the plaint.
29. Only when counter-affidavit was filed before lower court, and Revision was taken to this Court, first respondent thought of changing her stand; Now she wants to admit the case of the petitioner that there was lease, but there was a subsequent surrender. The change of stand also shows the lack of bona fides on the part of first respondent. As rightly argued by learned Counsel for petitioner, first respondent has to win or fail on the basis of her case. She cannot rely on the case put forward by petitioner herein to get a relief for her. Learned Counsel relied on the decision reported in T.S. Govindaraj v. A.B. Kandaswamy Gounder and Anr. and followed in Lodd Balamukundas v. K. Kothandapani, 84 L.W. 172, for the said purpose I am of the view that these decisions fully apply to the facts of this case.
30. Once it is found that the ad-interim injunction was intended to evict a person forcibly can the argument of learned senior counsel for first respondent be accepted that the impugned Order should be sustained, and the lower court should be directed to dispose of the main application? If I am to yield to that argument. I feel, I will be doing an illegality. According to me, first respondent herein has misused the court. Events which I have narrated above will show that the first respondent has abused the process of court, and the order of ad interim injunction was misused to, evict a person who was in lawful possession, A person who was doing business in the building for more than quarter of century was thrown to streets only on the basis of the two line order of the lower court.
31. In a recent decision of the Honourable Supreme Court reported in K.K. Modi v. K.N. Modi , their Lordships have held thus:
The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase 'abuse of the process of the court" thus; "This term connotes that the process of Court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.... The categories of conduct rendering a claim frivolous vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
[Italics supplied] One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and, contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of process of the court. Frivolous or Vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
In the case of Greenalgh v. Mallard (1947)2 All E.R. 255, the court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the court, put his case in another way and say that he relying on a new cause of action. In such circumstances, he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexacious and an abuse of the process of the court..
In Mcllkenny v. Chief Constable of West Midlands Police Force (1980)2 All E.R. 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiff's earlier criminal trial. The court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel.
In the earlier portion of the same judgment, para 42 their Lordhsips have said thus:
Under Order 6, Rule 16, the court may, at any stage of the proceeding, order to be struck out, inter alia any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of the Civil Procedure (15th Edition, Volume II, page 1179, note 7) has stated that power under Clause (c) of Order 6, Rule 16, of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings, and that this power is unlike the power under Section 151, whereunder courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of court on the basis of what is stated in the plaint.
[Italics supplied]
32. In the well known decision in S.P. Chengalvaraya Naidu v. Jagannath , their Lordships held that a person whose case is based on a falsehood, has no right to approach the court, and he can be summarily thrown out at any stage of the litigation. Their Lordships, further held in that case that one who comes to court, must come with clean hands, and their Lordhships also took judicial notice of the fact that the process of court is being misused and abused: In that case, their Lordships further held that a litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the court as well as on the opposite party.' We must understand that is the case where a decree passed in favour of a person was sought to be set aside on the ground of fraud. Even the opposite party had an opportunity to put forward his defence by producing relevant document, but he did not do so in the earlier litigation. In a subsequent litigation, when the principle of res judicata was put forward, Their Lordships of the Honourable Supreme Court rejected the plea and held that there cannot be any res judicata when the decree was obtained playing fraud on court.
33. In Indian Bank y. Satyam Fibres (India) Pvt. Ltd. (1996)5 S.C.C. 550, in paragraph 23 of the judgment, their Lordships said thus:
Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.
[Italics, supplied]
34. Facts, narrated above show that the first respondent, after having suppressed material facts, did obtain an interim order and delayed the communication of the same so as to prevent the petitioner herein from taking timely action. It was a perpetuated fraud. If I am to maintain the interim order and direct the lower court to dispose it of on merits. I must justify the dispossession of the petitioner. Such an argument cannot be accepted.
35. The Honouable Supreme Court has repeatedly held now an interim order of injunction has to be passed. In Shivkumar Chadha v. Municipal Corporation of Delhi and Ors. , in paragraph 30 of the judgment, their Lordships have held thus:
...Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the opendency of the suit. The purpose of temporary injunction is this, to maintain the status quo. The court grants such relief according to the legal principles ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance and convenience is in his favour and refusal of injunction would cause irreparable injury to him.
In paragraph 34, it was held that the procedure contemplated under Rule 3 of Order 39, C.P.C. must be treated as mandatory. It was held thus:
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. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdicton of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisons it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But samp cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforsaid is optional and not obligatory, then the introduction of the proviso by the-Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 4 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875)1 Ch.D. 426 and Nazir Ahmed v. Emperor A.I.R. 1936 P.C. 253 : 63 I.A. 372 : 37 Cal.L.J. 897. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare .
As such whatever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. ..
[Italics supplied]
36. The above principle was reiterated in the decision reported in Morgan Stanley Mutual Fund v. Kartick Das . In paragraph 26, the general principles on the basis of which an ex parte order of injunction could be granted, are stated. The guidelines are as follows:
As a principle, ex parte injunction should be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are:
(a) Whether irreparable or serious mischief will ensure to the plaintiff.
(b) Whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve.
(c) The court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented.
(d) The court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) The court would expect a party applying for ex parte injunction to show utmost good faith in making the application.
(f) Even if granted, the ex parte injunction would be for a limited period of time;
(g) General principles like prima facie case, balance of convenience and irrepabale loss would also considered by the court.
[Italics supplied]
37. In Mahadev Savlaram Shelke and Ors. v. Pune Municipal Corporation (1993)3 S.C.C. 33, their Lordships reiterated the principle and followed that the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.
38. In view of the impugned order, a persons's business is affected. It is a case where the court below was misled by the first respondent. Secondly, the court also did not think of considering the statutory ingredients before passing the order. Apart from the first respondent misleading the court, the court below also failed the apply its mind before passing the order. The court should have at least applied its mind whether there is any urgency in"the case, and if only a short notice had been issued to the petitioner herein before passing the impugned order, this would not have happened. Because the court is immune from any prosecution, it should not think that it can pass any order of any kind. It is accountable ' to the litigant public. The Constitution enjoins on a court that it should act in accordance with law. The Honourable Supreme Court and this Court have repeatedly held that unless the stautory conditions are satisfied, and unless the grounds for granting the injunction are put down in writing, no interim order shall be granted. It is not a case where the lower court is not aware of the principles to be followed before granting the impugned order. The court below also thought of violating the guidelines, which ultimately landed an innocent person to streets. In such cases, when the illegality has come to the notice of this Court, I feel that this Court is duty bound to restore the person so affected, to his original position, and also see that he is given necessary protection. Petitioner herein has already filed C.M.P. No. 14601 of 1998 with a prayer that he must be put in possession of the property. I have held in Renuka Devi v. D. Manohara (1998)1 L. W.355, following the decision in Indian Bank v. Satyam Fibres (India) Pvt. Ltd.,, that it is the duty of the court to rectify its mistake and the inherent powers of court must be exercised in such cases to see that at least to a certain extent, injustice already done is remdied. The word 'abuse' means, misuse or using one's position for something for which it is intended. In this case, first respondent misused the machinery of this Court to obtain an unfair advantage by misleading the court below. The court below also played its part in committing an illegality. Under these circumstances, I feel that this is a fit case where the petitioner must be put in possession of the property.
39. At this juncture, it must also be pointed out that under Order 39, Rule 3, proviso, C.P.C., when ad-interim injunction is granted without notice to the respondent (defendant) a duty is cast on the applicant to file on the date on the which injunction is granted, or on the date immediately following that date, an affidavit stating that the copies as aforesaid have been delivered or sent. In this case, the impugned order also does not say anything regarding direction to the applicant, to comply with the Order 39, Rule 3, C.P.C. when the statute provides that the affidavit should be filed on the same day when the order is granted or on the following day, any violation of the stautory rule by the first respondent herein should be taken serious note of. First respondent has filed the affidavit into court only on 2.9.1998, though it is dated 1.9.1998 According to me this is not bona fide.
40. Learned Senior Counsel for first respondent also submitted, relying on Gujarat Bottling Co. Ltd. v. Coca Cola Co. , that the petitioner herein has also not come to court with clean hands, and the conduct which is expected of the first respondent herein when she comes to court, is equally applicable to the defendant (petitioner herein) also, when he wants to have the ad-interim order of injunction vacated. The legal position submitted by learned senior counsel, relying on the above decision cannot be doubted, learned senior counsel further stated that both before the lower court as well as in the affidavit filed in support of application for suspending the interim order, petitioner herein has stated that the business belongs to him exclusively. According to learned senior counsel, that is a misstatement of fact calculated to get a favourable order from this Court. I cannot accept the said argument. When the petitioner is doing business in a partnership, it is his business, though others may be associated with it. So far as first respondent is concerned, petitioner herein can say that it is his business. Only as between the partners. It may be their business. Likewise, in regard to the lease of the building also, he is entitled to say that he is the lessee. I also do not find any statement in the affidavit that he is challenging the rights of the other partners or that of the right of second respondent herein in the lease right. I do not think that the petitioner herein has committed any fraud as contended by learned senior counsel for first respondent.
41. Petitioner herein approached the police on 4.9.1998 and gave a complaint that he was illegally evicted. Petitioner has a case that the police did not interfere due to various reasons. I do not want to further probe into the same. According to me, the attitude of the police was never helpful. They did not take any preventive action on the ground that civil court has passed an order of injunction. The police should have at least investigated into the correctness of the allegations and taken whatever action they could have. Till date they have failed to take any action. In my view, the police have also failed in discharging the statutory duty. To that extent, first respondent herein was successful enough in completely taking possession of the building by making use of the interim order obtained illegally by suppressing material facts.
42. In the result, the civil revision petition is allowed with costs of Rs. 5,000 C.M.P. No. 14601 of 1998 filed by petitioner herein is also allowed. I give the following directions:
I direct that the petitioner herein must be put in possession of the property in question, i.e., premises No. 18 of Mannar Reddi Street, T. Nagar, Chennai more fully described in the plaint in O.S. No. 5628 of 1998, on the file of IV Assistant Judge, City Civil Court, Chennai, forthwith, I direct the Commissioner of Police, Chennai, to see that the petitioner herein is put in possession of the said property forthwith. I further direct him to provide adequate police protection to the petitioner and his possession of the property should not be disturbed until he is evicted by due process of law. The Commissioner of Police is directed to see that this order is implemented in all its seriousness, and petitioner must be given police protection till he requires. The Injunction Application No. 13342 of 1998 in O.S. No. 5628 of 1998 is dismissed and the interim order passed thereon is vacated. Other C.M.Ps. in this C.R.P., are closed.
43. Now that I have found that the petitioner herein was in possession of the premises in question on the date of suit, and the plaintiff was not in possession, and, therefore, suit for injunction is also not maintainable. As I said already, the suit was instituted without any bona fide intention to get justice, but only to obtain an interim order from court to use the same for illegal purpose. Therefore, the plaintiff should not be permitted to prosecute such a suit. O.S. No. 5628 of 1998, on the file of IV Assistant Judge, City Civil Court, Chennai is struck off the file.
44. Post this civil revision petition on Monday (2.11.1998) at 10.30 a.m. for reporting compliance of the above directions.