Madras High Court
Beema Raja vs Janaki on 13 December, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/12/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No. 1581 of 2012 and M.P(MD)No.1 of 2012 1. Beema Raja 2. Azhgu Raj ... Petitioners/Respondents/Respondents/ Defendants Vs 1. Janaki 2. Renganathan 3. Ramakrishnan 4. Thiruvenkata Lakshmi 5. Venkatraman ... Respondents/Appellants/Petitioners/ Plaintiffs Prayer Petition filed under Article 227 of the Constitution of India to set aside the order dated 25.06.2012 in C.M.A.No.12 of 2011 passed by the Principal District Court, Virudhunagar District at Srivilliputtur, pursuant to the I.A.No.216 of 2011, in O.S.No.99 of 2011, on the file of the Subordinate Judge, Srivilliputtur, dated 01.06.2011. !For Petitioners ... Mr.G.R.Swaminathan ^For Respondents ... Mr.M.P.Senthil :ORDER
This Civil Revision Petition has been filed to get set aside the order dated 25.06.2012 in C.M.A.No.12 of 2011 passed by the learned Principal District Judge, Virudhunagar District at Srivilliputtur, in setting aside the order dated 01.06.2011 passed in I.A.No.216 of 2011, in O.S.No.99 of 2011, by the learned Subordinate Judge, Srivilliputtur.
2. Heard both sides.
3. A recapitulation and re'sume' of facts which are absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
(i) The plaintiffs filed the suit seeking the following reliefs:
"(a) by granting a permanent injunction against the Defendants his men and agents restraining them from changing the character of the plaint - schedule property as cultivable Land into any other type including as house - plots.
(b) by granting a permanent - injunction against the Defendants their man and agents restraining them from alienating or encumbering in any way any portion or full extent of the plaint schedule property until a valid partition is effected between the plaintiff and his Pangalis;
(c) by awarding cost of this suit; and further reliefs as this Hon'ble Court may think fit under the particular circumstances of the case and render justice." (extracted as such)
(ii) The written statement was filed by the defendants. The plaintiffs filed I.A.No.216 of 2011 seeking an interim injunction. Whereupon, after hearing both sides, the lower Court dismissed that application, as against which C.M.A.No.12 of 2011 was filed before the lower Appellate Court, which granted the order of interim injunction, by setting aside the order of the lower Court.
4. Being aggrieved by and dissatisfied with the order passed by the lower Appellate Court, this Civil Revision Petition has been focussed on various grounds by the revision petitioners/defendants.
5. The learned Counsel for the revision petitioners/defendants would pyramid his arguments, which could pithily and precisely be set out thus:
The very prayer in the plaint would pave no way for filing I.A.No.216 of 2011. There cannot be a vague prayer in the plaint, seeking such interim injunction. Wherefore, as a sequela, the I.A. to get interim injunction on par with the injunction sought in the main suit, also would not lie. But, the lower Appellate Court without understanding the real purport of the matter, simply granted interim injunction, warranting interference in this Civil Revision Petition.
6. Whereas the learned Counsel for the respondents/plaintiffs by inviting the attention of this Court to the averments in the plaint as well as in the typed set of papers, would develop his arguments, which could tersely and briefly be set out thus:
The lower Appellate Court taking into consideration the fact that pending the suit, the property should not be dissipated or converted into plots and sold away, such interim maintenance of status quo was ordered. Hence, no interference is warranted in this Civil Revision Petition.
7. The point for consideration is as to whether concerning the vague relief as sought for in the plaint, such interim application could be entertained and an order of interim injunction be passed?
The Point:
8. I would like to fumigate my mind with the following provisions of Order II Rule 2 of the Code of Civil Procedure as well as Section 34 and 40 of the Specific Relief Act, which are extracted hereunder for ready reference:
Order II Rule 2 of Code of Civil Procedure:
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
Section 34 of the Specific Relief Act:
"34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."
Section 40 of the Specific Relief Act:
"40. Damages in lieu of, or in addition to, injunction.- (1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the Court may, if it thinks fit, award such damages. (2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the Court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim. (3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach."
9. A cumulative reading of those provisions would clearly demonstrate and display that such sort of blanket prayers for injunction without seeking any comprehensive relief is not maintainable.
10. I would like to point out that in the prayer in the plaint itself, it is found mentioned that injunction should be granted until a valid partition is effected between the plaintiffs and their pangalis, which in my opinion would connote and denote, portray and parody the vague case of the plaintiffs. There should be a proper prayer for declaration for getting such order of injunction.
11. I would like to refer to the decision of this Court in Chinna Nachiappan v. PL. Lakshmanan reported in 2007(4) CTC 70. Certain excepts from it, would run thus:
"15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contain the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference:
"2. Suit to include the whole claim - Every Suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinguish any portion of his claim in order to bring the Suit within the jurisdiction of any Court."
12. When the plaint itself disclosed some dispute relating to title, then necessarily there should be a prayer for declaration of such title. But without adhering to all these things in a cavalier fashion and that too, in a vague manner, as found set out in the plaint, the I.A., was filed. Hence, the order passed by the first Appellate Court warrants interference and it has to be set aside. The point is answered accordingly.
13. However, the learned Senior Counsel appearing for the respondents would submit that the plaint could be got suitably amended for incorporating the additional prayers and till then, status quo may be ordered.
14. The learned Counsel for the revision petitioners would submit that the order passed by the first Appellate Court has to be set aside and what is going to happen in the litigative process thereafter, is a different matter.
15. As such, in the facts and circumstances of the case, I would like to observe, while allowing this Civil Revision Petition and setting aside the order passed by the first Appellate Court that the plaintiffs are at liberty to file application under Order VI Rule 17 of the Code of Civil Procedure to get the plaint amended and such an application shall be disposed of as per law within a period of fifteen days from the date of taking up the matter. If at all such amendment application is allowed subject to hearing the objections if any, of the defendants, then the question of seeking interim injunction would arise. Consequently, the connected Miscellaneous Petition is closed. No costs.
ssl To
1. The Court of Principal District Court, Virudhunagar District at Srivilliputtur.
2. The Court of Subordinate Judge, Srivilliputtur,