Madras High Court
M.P.Ponraj vs S.Dave Jeyaselvan on 11 October, 2018
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.10.2018
CORAM
THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH
Civil Revision Petition (PD) Nos.1862 to 1865 of 2018 and
C.M.P.No.10672 of 2018 in CRP (PD) No.1862 of 2018
M.P.Ponraj .. Petitioner in all CRPs
Vs.
S.Dave Jeyaselvan .. Respondent in all CRPs
Prayer in CRP (PD) No.1862 of 2018:- This Civil Revision Petition has
been filed against the dismissal of the fair and decreetal order dated
20.02.2018 passed in I.A.No.6197 of 2016 in O.S.No.5734 of 2013 to dismiss
the above suit now pending on the fie of the learned VI Assistant Judge, City
Civil Court, Chennai.
Prayer in CRP (PD) No.1863 of 2018:- This Civil Revision Petition has
been filed against the dismissal of the fair and decreetal order dated
20.02.2018 passed in I.A.No.6195 of 2016 in O.S.No.5734 of 2013 to direct
the respondent to deposit damages at the rate of Rs.40,000/- per month
from August 2013 till handing over the possession of the suit schedule
property now pending on the fie of the learned VI Assistant Judge, City Civil
Court, Chennai.
Prayer in CRP (PD) No.1864 of 2018:- This Civil Revision Petition has
been filed against the dismissal of the fair and decreetal order dated
20.02.2018 passed in I.A.No.6196 of 2016 in O.S.No.5734 of 2013 to order
eviction of the respondent from the suit schedue property now pending on
the fie of the learned VI Assistant Judge, City Civil Court, Chennai.
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Prayer in CRP (PD) No.1865 of 2018:- This Civil Revision Petition has
been filed against the dismissal of the fair and decreetal order dated
20.02.2018 passed in I.A.No.11238 of 2017 in O.S.No.5734 of 2013 to direct
the respondent to pay/deposit the accrued damages of Rs.18,14,000/- now
pending on the fie of the learned VI Assistant Judge, City Civil Court,
Chennai.
For Petitioner
in all CRPs : Mr.R.Gandhi, Senior Counsel
for Mr.M.Kamalanathan
For Respondent
in all CRPs : Mr.Raja Chockalingam
COMMON ORDER
CRP (PD) No.1862 of 2018 has been filed against the dismissal of the fair and decreetal order dated 20.02.2018 passed in I.A.No.6197 of 2016 in O.S.No.5734 of 2013.
2.CRP (PD) No.1863 of 2018 has been filed against the dismissal of the fair and decreetal order dated 20.02.2018 passed in I.A.No.6195 of 2016 in O.S.No.5734 of 2013.
3.CRP (PD) No.1864 of 2018 has been filed against the dismissal of the fair and decreetal order dated 20.02.2018 passed in I.A.No.6196 of 2016 in O.S.No.5734 of 2013.
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4.CRP (PD) No.1865 of 2018 has been filed against the dismissal of the fair and decreetal order dated 20.02.2018 passed in I.A.No.11238 of 2017 in O.S.No.5734 of 2013.
5.The respondent herein is the plaintiff in O.S.No.5734 of 2013. The plaintiff has filed the said suit for permanent injunction restraining the defendant from in any manner interfering with his peaceful possession and enjoyment of the suit property.
6.The parties in these civil revision petitions are referred as per their ranks in the trial Court for the sake of convenience and clarity.
7.The facts leading to this case are as follows:-
The suit schedule property consisting of the land and building is absolutely owned by the defendant. The land is allotted/sold to the defendant by the Tamil Nadu Housing Board vide sale deed registered as Document No.1645/1985 in Book No.5, Vol 107 pages 357-366 dated 01.07.1985. The building is having two stories (ground, first and second floors) with a car shed with a built up area of 4500 sq.ft. The building was fully constructed and completed by the defendant as early as in the year 1986, after obtaining necessary approval/ratification http://www.judis.nic.in 4 from the Corporation of Chennai.
8.During the year 1993, the defendant's first daughter Ms.Priya eloped with the plaintiff and alleged to have married him at their will and pleasure. However, the marriage between the first daughter of the defendant with the plaintiff has not been recognised by the defendant and his wife. The defendant was staying at his family property situated at Ashok Nagar. The ground floor of the suit schedule property was vacant therefore, the defendant allowed his daughter Ms.Priya to stay at the ground floor in the year 1995.
9.In the year 1999, the company run on the first floor of the suit schedule property was fallen vacant and therefore, Ms.Priya approached the defendant to occupy the first floor. He also gave permission. Hence, along with Ms.Priya, the plaintiff also moved to first floor of the suit schedule property. It is relevant to state that there was no privity of contract between the defendant and the plaintiff.
10.In the year 2013, Ms.Priya along with her son, gone to Malaysia and settled there. Thereafter, the plaintiff kept the first floor of the suit schedule property under lock and key and also holding the key without handing over the same to the defendant viz., the owner of http://www.judis.nic.in 5 the suit schedule property.
11.According to the defendant, he and his wife never accepted the marriage between the plaintiff and their daughter Ms.Priya and they never accepted the plaintiff as their son-in-law. Further, since, the plaintiff was staying along with their daughter Ms.Priya, they only assume him as the caretaker of Ms.Priya.
12.In the meanwhile, the defendant demanded handing over of vacant possession of the first floor from the plaintiff. But, he fails to do so and further, filed the present suit for permanent injunction against the defendant.
13.The said suit was filed by the plaintiff through his Power Agent. The plaintiff claims that he was in occupation of the entire building i.e., ground, first and second floors. But, the defendant in his written statement has submitted that he is in ground floor. He has further stated that keeping the first floor under lock and key, the plaintiff is residing out side of the suit property. According to the defendant, the alleged occupation of the plaintiff as claimed by him is nothing but a trespass.
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14.The plaintiff has admitted that the defendant is the absolute owner of the entire suit building. While residing in the first floor of the suit building, the plaintiff has also obtained the public documents like, ration card, voters identity card, passport etc. However, according to the defendant, possession of those documents on the part of the plaintiff would not get any claim for ownership of the suit building.
15.With the above contentions, pending suit, the defendant has filed Interlocutory Applications in I.A.Nos.11238 of 2017, 6195, 6196 & 6197 of 2016 in O.S.No.5734 of 2013, before the trial Court, to direct the respondent to deposit damages at the rate of Rs.40,000/- per month from August 2013 till handing over the possession of the suit schedule property; to order eviction of the respondent from the suit schedule property; to direct the respondent to pay/deposit the accrued damages of Rs.18,14,000/- and to dismiss the above suit now pending on the fie of the learned VI Assistant Judge, City Civil Court, Chennai, respectively.
16.Having considered the above Interlocutory Applications, the trial Court dismissed those petitions as not maintainable and further, held that the defendant cannot chosen to file counter claim along with the written statement without paying appropriate court fees. http://www.judis.nic.in 7
17.Challenging the said orders passed by the trial Court in the above Interlocutory Applications, the defendant is before this Court with these Civil Revision Petitions.
18.Heard the learned counsel for the plaintiff and the learned counsel for the defendant.
19.The submission of the plaintiff is that he filed the suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. According to him, he cannot be evicted from the suit property except by 'due process of law'. The stand taken by the plaintiff is that he married one Ms.Priya, the daughter of the defendant in the year 1993 and out of the said wedlock, a child was born in the year 1995. They were living in the suit property with the consent of the defendant in the year 1995 itself. For the purpose of renovating the suit property, he has spent more than Rs.50 lakhs.
20.The learned counsel for the plaintiff would submit that before the trial Court, under Order XXVI Rule 9 of the Code of Civil Procedure, a petition for appointment of Advocate Commissioner was filed and http://www.judis.nic.in 8 accordingly, an Advocate Commissioner was appointed for the purpose of inspection of suit property. The Advocate Commissioner has also visited the property and filed a report stating that the plaintiff has spent huge amount for the interior of the first floor.
21.Taking the averment in the written statement filed by the defendant, the plaintiff would submit that the occupation of the first floor of the suit premises by the plaintiff and his wife Ms.Priya is only a 'permissive occupant' and since, the plaintiff staying along with his wife in the suit property, he was in 'permissive occupation' of the suit premises. Hence, according to the plaintiff, since, he is a 'permissive occupant', he cannot be evicted from the suit premises without following the 'due process of law'.
22.According to the further case of the plaintiff, he got permission from the defendant for the interior work of the first floor and hence, now, the defendant cannot claim that he did not know about the interior done by the plaintiff. The plaintiff further denies the stand taken by the defendant that the plaintiff is only a care taker of Ms.Priya. The plaintiff claim that he is the husband of Ms.Priya. The plaintiff further contended that the defendant cannot claim any rent or damages from him, in the present suit, as the present suit was filed by http://www.judis.nic.in 9 him for permanent injunction. The plaintiff further contended that he cannot be evicted without following the due process of law for the whims and fancies rather contended that without paying the court fee, the defendant is not correct in asking for recovery of possession.
23.In the order, the trial Court has held that for the contradictory contentions, it is necessary to conduct the trial by way of adducing oral and documentary evidence in both sides to prove their contentions. After full fledged trial only the Court can come to the conclusion to decide about the suit property. The defendant has already filed his written statement. During that period, he has not come forward to file counter claim seeking for the relief of damages for a sum of Rs.40,000/- per month for use and occupation and for deposit the amount of Rs.18,40,000/- being the occurred damages from the plaintiff.
24.Further, if at all the defendant seeks for the relief of damages, he ought to have pay the proper court fees along with counter claim. But in this case, the defendant did not chosen to file a counter claim interpreted under Order VIII Rule 6A of C.P.C., instead he had filed a petition under Section 151 C.P.C. The distinct pleadings made by the defendant for damages in the written statement is a counter claim. If at all any relief asked by the defendant, he ought to http://www.judis.nic.in 10 have made an amendment in the written statement under Order VI Rule 17 C.P.C. Further, the defendant did not chosen to file a petition under Order VIII Rule 9 C.P.C seeking for filing of additional written statement. Counter claim cannot be entertainable when there is no written statement on record.
25.In civil cases, adherence to Section 30 C.P.C., would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges. Section 30 CPC reads as under:-
“30. Power to order discovery and the like. - Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party, -
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summons to persons whose http://www.judis.nic.in attendance is required either to give evidence 11 or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.''
26.The learned Senior Counsel appearing for the defendant would rely on a judgment of the Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira (2012 (5) SCC 370) wherein, in paragraph Nos.79 & 80, it has been held as follows:-
“Due process of Law
79. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
80. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:
http://www.judis.nic.in 12 "28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law.
Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an http://www.judis.nic.in 13 action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
27.In view of the above submissions, it is the admitted fact that the defendant is the absolute owner of the suit building. The plaintiff is the permissive occupier of the suit premises. Originally, the plaintiff was granted injunction. Later, at the instance of the defendant, the http://www.judis.nic.in 14 said injunction was vacated by the Hon'ble Supreme Court and the same reached finality. Hence, the plaintiff is a rank - I trespasser. At the same time, the defendant cannot claim counter claim in the suit filed by the plaintiff for permanent injunction. In any event, when the injunction granted in favour of the plaintiff was vacated by the Superior Court, the plaintiff is not entitled to have possession of the suit premises as since, the said order vacating injunction reached finality.
28.Grant or refusal of an injunction in a civil suit, is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. In order to grant or refuse injunction, the judicial officer or the judge must carefully examine the entire pleadings and documents with utmost care and seriousness. http://www.judis.nic.in 15
29.The plaintiff's suit for injunction against the true owner/the defendant, was not maintainable, particularly, when the marriage between the plaintiff and Ms.Priya was not accepted by the defendant and his wife who are the parents of Ms.Priya and further, when it was reported by the defendant that there was a strained relationship between the plaintiff and his wife Ms.Priya and the said Ms.Priya along with her son went and settled in Abroad, the plaintiff ought to have given possession of the premises to the true owner of the suit property viz., the defendant, on demand. Admittedly, the plaintiff does not claim any title over the suit property and he had not filed any proceedings disputing the title of the defendant. http://www.judis.nic.in 16
30.In view of all the above, the Civil Revision Petitions are allowed and the common order passed by the learned VI Assistant Judge, City Civil Court, Chennai in I.A.Nos.11238 of 2017, 6195, 6196 & 6197 of 2016 in O.S.No.5734 of 2013 is set aside. This Court directs that the possession of the suit premises be handed over by the plaintiff to the defendant, who is admittedly the owner of the suit property, within a period of three months from the date of receipt of a copy of this order. Liberty is given to the plaintiff to file a suit for recovery of the amount spent by him in the alleged suit premises, if he chooses to do so. The defendant is also given liberty to file a suit for recovery of damages, if any, from the plaintiff. No costs. Consequently, connected miscellaneous petitions are closed.
11.10.2018 jbm Index:Yes/No Speaking order/non speaking order To The VI Assistant Judge, City Civil Court, Chennai.
http://www.judis.nic.in 17 HULUVADI G.RAMESH.J., jbm CRP.(PD) Nos.1862 to 1865 of 2018 11.10.2018 http://www.judis.nic.in