Madras High Court
A.Annamalai vs Sri Om Amman Devasthanam on 8 September, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08-09-2015 CORAM: THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR SECOND APPEAL No.885 of 2005 1.A.Annamalai 2.C.Pachiappan .. Appellants vs. Sri Om Amman Devasthanam Krishna Pudur, Ammapet Represented by its Trustee and Treasurer, R.Seerangan .. Respondent Second Appeal is preferred under Section 100 CPC against the judgment and decree of the learned Principal District Judge, Salem, dated 26.6.2003 in A.S.No.6 of 2003, reversing the judgment and decree of the learned Principal District Munsif Court at Salem, dated 4.7.2002 in O.S.No.877 of 1998. For Appellants : Mr.R.Thanjan For Respondent : Mr.S.Kalyanaraman J U D G M E N T
The defendants 1 and 2 in the original suit O.S.No.877 of 1998 are the appellants in the Second Appeal. Sri Om Amman Devasthanam, Krishna Pudur, Ammapet is represented by its Trustee and Treasurer R.Seerangan. The respondent herein filed the said suit for bare injunction against the appellants contending that the appellants herein/defendants, who were out of possession, were making attempts to trespass into the suit property and take forcible possession. In addition, the respondent/plaintiff also contended that they were causing nuisance by dumping the wastes in the vacant space within the suit property. The appellants herein/defendants resisted the claim contending that there were four shops and out of the four shops owned by the Devasthanam, two shops were let out to the appellants herein/defendants; that in the year 1995, the members of the Community, who claimed to be the Founders of the Devasthanam, made attempts to forcibly evict the appellants/ defendants, pursuant to which, they filed suits for perpetual injunction not to disturb their possession or evict them except adopting due process of law; that during the pendency of the suits filed by them, the members of the said Community, taking law in their hands, wanted to evict the appellants/defendants and in such an attempt, they caused damage to the walls of the shops occupied by the appellants/ defendants as tenants; that the said act on the part of the Community people drove the appellants/defendants to lodge a complaint with the Ammapettai police and that thereafter the present suit came to be filed suppressing even the fact that the appellants/defendants were tenants in respect of two shops out of four shops shown as the suit property and also the previous litigation instituted by the appellants/ defendants.
2. Based on the rival pleas, the learned Trial Judge framed two issues: one as to whether the plaintiff was entitled to the relief of permanent injunction and the other as to what other reliefs to which the plaintiff was entitled. In the trial that followed the framing of the issues, three witnesses were examined on the side of the respondent herein/plaintiff and four witnesses were examined on the side of the appellants herein/defendants. Exs.A-1 to A-7 and Exs.B-1 to B-9 were marked respectively on the sides of the respondent/plaintiff and the appellants/defendants. The Report of the Advocate Commissioner and his plan were marked as Exs.C-1 and C-2.
3. During the course of evidence, the appellants herein/ defendants produced certified copies of the judgment and decree and the evidence of one Pethunaicker in O.S.No.1005 of 1991 on the file of the Principal District Munsif, Salem instituted by the second appellant/ second defendant C.Pachiappan. They also produced the copy of the First Information Report prepared on the basis of the complaint preferred by the first appellant/first defendant in Crime No.1909 of 2005 on the file of Ammapettai Police Station. Taking into account the abovesaid documents and other oral and documentary evidence and appraising them in the light of the arguments advanced on both sides, the learned Trial Judge came to the conclusion that the claim of the respondent/plaintiff that the tenants of the respondent/ plaintiff in respect of the shops shown in the suit properties were not proved to have vacated voluntarily as contended by the respondent/ plaintiff. The Trial Judge also noticed the fact that there was complete suppression of prior proceedings in which the second appellant/second defendant was able to get a decree for perpetual injunction against the respondent/plaintiff not to evict him except by due process of law and also the fact that a police complaint was lodged, based on which a criminal case had been registered. The learned Trial Judge held that the said suppression of facts would dis-entitle the respondent/plaintiff from seeking the discretionary relief of injunction. Accordingly, the learned Trial Judge, by a judgment and decree dated 4.7.2002, dismissed the suit. Challenging the abovesaid decree of the Trial Court, the respondent/plaintiff preferred an appeal on the file of the learned Principal District Judge, Salem in A.S.No.6 of 2003.
4. The learned Principal District Judge, after hearing the arguments made on both sides, disagreed with the view expressed by the Trial Court regarding the proof of the plea made by the respondent/plaintiff and held that the tenants in respect of the suit property had voluntarily vacated. In addition, the learned lower Appellate Judge held that there was an admission on the part of the appellants/defendants that they were not in possession of any portion of the suit property and that since the title of the respondent/plaintiff was not in dispute, there was no impediment for granting the relief of injunction against the appellants/defendants from re-occupying the property. Accordingly, the learned lower Appellate Court Judge allowed the appeal, set aside the decree passed by the Trial Court and granted a decree for the relief of permanent injunction against the appellants herein/defendants as prayed for by a judgment and decree dated 26.6.2003. It is as against the said decree of the lower Appellate Court made in A.S.No.6 of 2003, the present Second Appeal has been filed by the appellants.
5. The Second Appeal was admitted on 25.8.2005 and the following questions were formulated as substantial questions of law involved in the Second Appeal:-
"(i) Whether the respondent is entitled for permanent injunction without establishing his possession and control over the suit property?
(ii) Whether the permanent injunction can be granted against the appellants who are found that they are the lawful tenants?"
6. In addition, the learned counsel for the appellants/ defendants, at the time of hearing, sought the leave of the Court to raise an additional substantial question of law. After considering the plea, this Court grants permission and the third substantial question of law is formulated as follows:-
"Whether the respondent/plaintiff is entitled to the discretionary relief of permanent injunction when material facts are suppressed showing that the respondent/plaintiff has not approached the Court with clean hands?"
7. The arguments advanced by Mr.R.Thanjan, learned counsel for the appellants/defendants and Mr.S.Kalyanaraman, learned counsel for the respondent/plaintiff are heard. The judgments of the Courts below and the other materials available on record sent for from the Courts below are also taken into consideration. For the sake of convenience, the parties are referred to in accordance with their ranks in the suit and at the appropriate places, if necessary, their ranks in the Second Appeal will also find a place.
8. It is an admitted fact that the suit property belongs to the plaintiff-Devasthanam. It is also not in dispute that the suit property consisted of four shops abutting Ammapettai-Cuddalore Road on its South and out of the four shops, two shops had been leased out to the defendants 1 and 2. The case of the plaintiff is that the property, along with the shops which were made up of mud-wall and thatched roof, was purchased in the year 1923 and that Salem Municipality, after a Report by its officials, chose to issue a notice dated 9.12.1991 to Perumal, Masila Mani, Tmt.Angammal and Seerangan, asking them to vacate the property as the building was in a dilapidated condition and it was unfit for occupation. Based on the said notice, the plaintiff-Devasthanam seems to have taken steps to vacate the tenants. The Second defendant Pachiappan besides resisting such attempt, chose to file a suit on the file of the Principal District Munsif, Salem in O.S.No.1005 of 1991 for a permanent injunction not to evict him from the shop which he occupied as a tenant under the plaintiff-Devasthanam without adopting due process of law. The first defendant contended that the Community Members, who were managing the Devasthanam, wanted to forcibly evict him by hook or by crook and they indulged in causing damage to the walls of the shop occupied by the first defendant as tenant and thereby made it unsafe to be in the shop; that the said incident took place on 28.8.1995 and pursuant to the same he lodged a complaint with Ammapettai Police, based on which a case was registered in Crime No.1909 of 1995. It is also not in dispute that such a case registered and the case was not closed till the filing of the suit.
9. After hot contest, the suit came to be decreed as prayed for by a judgment and decree dated 20.4.1995. The certified copies of the judgment and decree of the said suit are Exs.B-1 and B-2. When the second defendant had sought such a legal protection and succeeded in getting such a decree, the plaintiff did not choose to proceed against him in an appropriate Forum or Authority for eviction. The first defendant produced documents to show that he had been paying the water tax to the Local Body in respect of the shop occupied by him as a tenant under the plaintiff-Devasthanam upto March 1995.
10. The plaintiff seems to have filed the suit simply contending that the defendants who were not in possession of the suit property and who were occupying the neighbouring properties were dumping the wastes in the suit properties and trying to occupy the property by force. No pre-suit notice came to be issued by the plaintiff either demanding the tenants to surrender possession or informing the defendants that they had either voluntarily vacated or abandoned the portions of the suit property which were in their possession. Had such a notice been issued then the defendants would have come forward with a reply that the second defendant was not out of possession and the first defendant was forced to leave the portion which was in his occupation.
11. Apart from the failure to issue such a notice, the plaintiff, who chose to file the suit for perpetual injunction, has chosen to suppress even the fact that the defendants 1 and 2 were erstwhile tenants of portions of the suit property under the plaintiff-Devasthanam.
12. A vague and general allegation came to be made in the plaint that due to the dilapidated condition of the suit property, the erstwhile tenants had themselves voluntarily vacated the suit property and thus the suit property was in the possession of the plaintiff was as on the date of plaint. The plaintiff who has chosen to take a stand that the plaintiff was in possession of the suit property as the possession was secured after the tenants vacated the suit property, has failed to state the date, month or year in which the tenants, especially the defendants 1 and 2, vacated the portions in the suit property in respect of which they were tenants. The plaintiff has also suppressed the fact that the second defendant filed a suit and obtained a decree for perpetual injunction under Exs.B-1 and B-2 as early as on 20.4.1995. The plaintiff has also suppressed the fact that the first defendant had lodged a complaint with Ammapettai Police complaining that he was forced to leave the shop, which was in his occupation, due to the unlawful act of the Community Members who were managing the Devasthanam and that the occurrence took place on 28.8.1995 and the further fact that the criminal case was also pending investigation.
13. Of course, there is a typographical error in the written statement of the first defendant in which the date has been wrongly typed as 28.8.1998 instead of 28.8.1995. If the other particulars of the averments and the documents are taken into consideration, the said typographical mistake can be noticed. The fact remains that there is an admission that the first defendant lodged a complaint with Ammapettai Police on 28.8.1995 complaining that he was forced to leave the shop which was in his occupation as a tenant.
14. So far as the second defendant is concerned, he had already obtained a decree for the relief of permanent injunction against the plaintiff. Under the said circumstances, if at all, the persons representing the plaintiff, wanted to be the law abiding citizens, they would have very well approached the Court with a suit for eviction on the ground that the building needed immediate demolition as it was not fit for occupation. Otherwise, the persons, who represent the plaintiff-Devasthanam, ought to have approached the Competent Authority for such an order of eviction. If it is true that the defendants themselves had vacated, the plaintiff could have very well obtained an acknowledgment from them to show that they were voluntarily vacating the premises. No such acknowledgment has been produced.
15. On the other hand, a perusal of Ex.B-9, copy of the FIR, will show that the Community people, who are managing the plaintiff-Devasthanam, took law in their hands and acted high handedly and thereafter came forward with the suit for perpetual injunction. The mere fact that the first defendant had admitted that he was out of possession as on the date of filing of the plaint shall not be a point in favour of the plaintiff who has sought for injunction against the person who was forced to leave the premises in his occupation as a tenant. In addition, the suppression of material facts will also show that the grant of the relief in favour of the plaintiff will have the drastic effect of encouraging like-minded people to take law in their hands and try to achieve their goal. Hence, this Court comes to the conclusion that the plaintiff, who is guilty of suppression of material facts and who is also guilty of forcing the first defendant to vacate the premises shall not be entitled to seek the discretionary relief of perpetual injunction against the first defendant. The very same observations will also apply in respect of the prayer of the plaintiff against the second defendant. The third substantial question of law is thus answered accordingly in favour of the appellants/defendants and against the plaintiff/ respondent.
16. The first substantial question of law has been formulated on the premise that the plaintiff failed to establish its possession and control over the property. So far as the first defendant is concerned, the plaintiff seems to have succeeded in establishing its possession and control over the property, as admittedly the first defendant was not in possession and enjoyment of the suit property as on the date of plaint. However, the close scrutiny of the evidence of the second defendant who deposed as DW-3 will make it clear that there is no admission that he was out of possession as on the date of plaint and on the date of his examination. Hence, on the basis that the plaintiff was not able to prove its possession and control over the property in respect of which the second defendant was the tenant, the plaintiff is not entitled to the relief of injunction as against the second defendant. In any event, in view of the answer given to the third substantial question of law, the plaintiff shall not be entitled to the relief of injunction against any of the defendants. Accordingly, the first substantial question of law is answered.
17. It is an admitted fact that the defendants 1 and 2 were lawful tenants in respect of two shop portions in the suit property. One of them, namely, the second defendant had even got a decree for injunction not to evict him forcibly without adopting due process of law. There is no proof that the tenancy created in favour of him, namely, the second defendant, came to be terminated and possession was taken from him in the manner known to law. So far as the other defendant, namely, the first defendant is concerned, admittedly he was a lawful tenant. There is no proof that he was evicted in the manner known to law and there is also no proof that he himself voluntarily vacated the portion in his occupation. The first defendant has taken a stand that he was forced to leave the suit property without terminating the lawful tenancy. Under the said circumstances, the plaintiff cannot get the relief of injunction without the tenancy being terminated in any of the modes recognised by law. Accordingly the second substantial question of law is also answered in favour of the appellants/defendants and against the respondent/plaintiff.
18. In view of the answers given to question Nos.1 to 3, the appeal succeeds. Accordingly, the Second Appeal is allowed. The decree passed by the lower Appellate Court dated 26.6.2003 made in A.S. No.6 of 2003 is set aside. The decree passed by the Trial Court in O.S.No.877 of 1998 dated 4.7.2002 shall stand restored and confirmed. However, there shall be no order as to costs.
08-09-2015
Index : Yes.
Internet : Yes.
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To
1.The Principal District Judge,
Salem.
2.The Principal District Munsif Judge,
Salem.
P.R.SHIVAKUMAR, J.
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S.A.No.885 of 2005
08-09-2015