Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P. (PD) No.1553 of 2004 C.M.P.No.14439 of 2004

Advocates

P.H. Arvind Pandian
for Petitioners. V. Manohar
for Respondents.

Judges

Mr. Justice S. Ashok Kumar

Acts

I.A.No.1295 of 2004 underO.39, Rules 1 and 2 of the Code of Civil Procedure
I.A.No.295 of 2004 underO.39, Rules 1 and 3 of C.P.C.,
provision of O.39, Rule 3-A, C.P.C.,
ofO.39, Rule 3-A, CPC,
(ii)O.39, Rule 3-A

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This civil revision petition was filed under Article 227 of the Constitution of India challenging an order dated 3.6.2004 that granted an ex parte/ad interim injunction in the trial court proceedings arising out of O.S.No.637 of 2004 (later renumbered as O.S.No.81 of 2004) on the file of the Subordinate Judge at Chengalpattu.

The plaintiffs are the santhathis (hereditary trustees) of M/s. Adilakshmi Ammal Hereditary Trust, deriving title under a registered Will dated 2.10.1900, which appointed W.B. Devaraja Mudaliar as trustee and thereafter hereditary trustees (santhathis). The plaintiffs are grandchildren of Gajaraj Mudaliar through his daughter Kamalabai Ammal and claim the properties under the Will. The revision petitioners are defendants 4 to 6 in the suit and are alleged purchasers/alienees who (according to the plaintiffs) demolished a tiled house on the Trust properties and have undertaken construction. The plaintiffs sought, inter alia, delivery of vacant possession of certain schedule properties, a permanent injunction restraining defendants 4 to 6 from further construction on a portion of the C schedule property, and future damages for use and occupation of B schedule property.

In the suit the plaintiffs obtained an interim injunction (application referenced in the record under O.39 of the CPC). The revision challenges the trial court's grant of that ad interim injunction.

Legal Issues Presented

Whether the civil revision petition is maintainable at this stage challenging the trial court's grant of ad interim injunction (i.e., whether the High Court should entertain the revision under Article 227 when alternative remedies exist).
Whether the trial court's injunction was vitiated by non-compliance with Section 92 CPC (sanction to sue) as alleged by the revision petitioners.
Whether there was non-compliance of Order 39, Rule 3-A CPC and, if so, whether that invalidates the injunction.
Whether an earlier order in Transfer C.M.Ps. (Tr.C.M.P.No.5873 to 5875 of 2004) or any prior suit operates as res judicata or otherwise bars the present injunction.

Arguments of the Parties

Revision Petitioners (defendants 4 to 6) — Principal Grounds Raised

No sanction was obtained as required under Section 92 of the Code of Civil Procedure for instituting the suit.
Order 39, Rule 3-A CPC has not been complied with.
An earlier order of this Court in Tr.C.M.P.Nos.5873 to 5875 of 2004 is against the grant of interim injunction.
The order of the lower Court is hit by the principles of res judicata.

Respondents / Plaintiffs — Principal Contentions in Resistance

An application for sanction under Section 92 CPC was filed and permission obtained, so the suit was lawfully instituted.
Even assuming non-compliance with Order 39, Rule 3-A CPC, the proper remedy for the petitioners is to file an appeal (implying that the High Court should not entertain the revision on that ground).
The order in Tr.C.M.P.Nos.5873 to 5875 of 2004 is not an impediment to granting interim relief in the present suit because that High Court order only observed that constructions by the alienees would be subject to the result of the suits filed by the transfer petitioners therein.
Res judicata does not arise because the suit filed by the power of attorney holder of the mother of the plaintiffs has a different cause of action; res judicata cannot operate unless the earlier matter is finally heard and decided.
The balance of convenience lies in favour of the plaintiffs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A. Venkatasubbiah Naidu v. S. Challappan and others; reported (2001) 1 MLJ (S.C.) 75 : (2000) 7 S.C.C. 696	The principle that, although the High Court's constitutional powers should not be unduly fettered, the High Court should generally direct a party to avail alternative statutory remedies (such as appeals) before resorting to a constitutional remedy; a learned single Judge need not entertain a revision petition where alternative remedies are available, and a party affected by an interim ex parte order should be directed to resort to other remedies.	The Court relied on this authority to justify refusing to entertain the revision petition at this stage and to direct the revision petitioners to pursue remedies before the trial court (i.e., to approach the trial court to vacate the injunction), rather than seeking relief by way of this revision under Article 227.

Court's Reasoning and Analysis

The Court proceeded by examining the nature of the revision and the factual matrix presented in the record. Key elements of the Court's reasoning are:

The petition challenges an ad interim injunction granted by the Subordinate Judge, Chengalpattu on 3.6.2004. The revision petitioners are alleged purchasers (defendants 4 to 6) while the plaintiffs are santhathis claiming under a Will.
The Court noted that a separate suit (O.S.No.7 of 2003) was filed by others (Arivudiar Nambi, T. Arumugam) representing themselves as beneficiaries of the Trust; the record did not make clear whether that suit was pending or disposed of.
The Court took into account an earlier order in Transfer C.M.Ps. (Tr.C.M.P.No.5873 to 5875 of 2004) where this Court observed that respondents (purchasers) had demolished portions of the suit property and that any construction they put up would be subject to the result of suits filed by transfer petitioners. That order therefore recognised the purchasers' actions but kept such constructions subject to the final outcome of related suits.
The Court observed that the plaintiffs in the present suit were not parties to the mentioned Transfer C.M.Ps., and the power of attorney holder who had instituted other proceedings was not the same as the present plaintiffs (who are santhathis). The plaintiffs therefore have a right to initiate the present proceedings.
On the contention of non-compliance with Section 92 CPC, the Court held that the contention that no permission was obtained "is not true" (i.e., permission was obtained as required under Section 92, according to the Court's assessment of the record).
With respect to the alleged non-compliance of Order 39, Rule 3-A CPC, the Court held that whether the plaintiffs have complied with the mandatory provision is a question of fact for the trial court to decide; the High Court should not enter into a broad "roving enquiry" on compliance at the revision stage.
The Court emphasised the availability of alternative remedies: the proper remedy for the revision petitioners was to file an appeal or to seek vacation of the injunction before the trial court and to raise factual and legal issues there. The High Court should normally direct parties to exhaust such remedies before entertaining a constitutional revision.
The Court cited A. Venkatasubbiah Naidu v. S. Challappan and others to support this approach and concluded that the revision petition should not be entertained at this stage under Article 227.

Holding and Implications

Holding: The civil revision petition is dismissed.

The Court ordered specifically that the revision petitioners should approach the trial court with a petition to vacate the injunction, filing necessary pleadings and documents. The CRP was dismissed with costs, and connected miscellaneous petitions were closed.

Implications:

Direct effect on the parties: The revision petitioners must pursue relief in the trial court (by moving to vacate the injunction) rather than seeking immediate relief in this High Court revision under Article 227.
No broader or new precedent was created by this order beyond the Court's application of the settled principle (as cited from A. Venkatasubbiah Naidu) that a High Court should generally direct parties to avail alternate remedies before entertaining a constitutional revision challenging an interim order. The decision leaves factual determinations (e.g., compliance with Order 39, Rule 3-A CPC, and issues about Section 92 CPC) to be decided by the trial court on the record of the suit.

This summary is based exclusively on the information contained in the provided opinion and does not add or infer facts not present in that text.

Show full summary ...

Tmt.S. Devi Others v. M/S. Adilakshmi Animal Dharma Sathiram, Thirukkalikundram Represented By Its Present Trustee (Santhathis) Thiru P.Srinivasan Others

1. This civil revision petition has been filed to set aside the order dated 3.6.2004 granting ex parte injunction in I.A.No.998 of 2004 in O.S.No.637 of 2004 on the file of the Subordinate Judge of Chengalpattu.

2. The brief facts of the case are as follows: The revision petitioners are defendants 4 to 6 in O.S.No.637 of 2004 on the file of the Subordinate Judge at Chengalpattu. The suit has been filed by the Santhathis of M/s.Adilakshmi Ammal Hereditary Trust established in the year 1890. Adilakshmi Ammal wife of Rathinam Mudaliar created the Adilakshmi Ammal Dharma Sathiram under a registered Will dated 2.10.1900. As per the said Will, she appointed her only son W.B.Devaraja Mudaliar as the Trustee and thereafter the Santhathis were to be the hereditary trustees. The said Devaraja Mudaliar had a daughter, V.G.Padmavathi Ammal who was married to one Gajaraj Mudaliar. Padmanavathi Ammal predeceased her father Devaraja Mudaliar on 17.7.1943. Through Padmavathi Ammal, Gajaraj Mudaliar had a daughter, Kamalabai Ammal and son V.G.Srinivasan. Kamalabai Ammal was married to one Parthasarathy. Kamalabai Ammal and Parthasarathy had four children namely, P.Srinivasan, P.Saraswathi, P.Shyamaldharan and P.Vijayalakshmi, who are the plaintiffs in the suit. Gajaraj Mudaliar had married one Dhanalakshmi as second wife. Through Dhanalakshmi, Gajaraj Mudaliar had begotten V.G.Bhoopathy and V.G.Ramaswamy, defendants 1 and 2 apart from three daughters. The said defendants 1 and 2 have created sale deeds in the names of S.Devi, M.Mangalam, Uma Maheswari, defendants 3 to 6 in respect of the properties belonging to the Adilakshmi Ammal Dharma, Sathiram. The alienees, particularly revision petitioners/defendants 4 to 6, illegally demolished a tiled house and also put up construction. To prevent the alienees from putting up further constructions, the Santhathis of Kamalabai Ammal and Parthasarathy filed the suit in O.S.No.637 of 2004 on the file of the Subordinate Judge, Chengalpattu which was later renumbered as O.S.No.81 of 2004. The suit was filed claiming the reliefs in respect of three (Schedule mentioned properties viz., (i) to deliver vacant possession of B and C Schedule properties, (ii) for grant of permanent injunction restraining the defendants 4 to 6 from in any way putting up construction in respect of a portion in C Schedule property, and (iii) for future damages of use and occupation at Rs.1,000 per month in respect of B Schedule property.

3. In the said suit the plaintiffs filed I.A.No.1295 of 2004 underO.39, Rules 1 and 2 of the Code of Civil Procedure for ad interim injunction and the trial Court granted an order of ad interim injunction on 3.6.2004. Aggrieved against the said order, this civil revision petition has been filed under Art.227 of the Constitution of India.

4. The main grounds raised in the revision are: (ii) No sanction was obtained as required under Sec.92 of C.P.C., for instituting the suit, (ii)O.39, Rule 3-A has not been complied with: (iii) Order of this Court in Tr.C.M.P.No.5873 to 5875 of 2004 are against the grant of interim injunction, and (iv) The order of the lower Court is hit by the principles of res judicata.

5. The contention of the respondents/plaintiffs who resist this revision are: (i) As required under Sec.92 of the Code of Civil Procedure, separate application was filed for sanction and permission was obtained and the suit has been lawfully instituted; (ii) Even assuming here is non compliance ofO.39, Rule 3-A, CPC, the remedy for the petitioners is to file an appeal, (iii) the order in Tr.C.M.P.Nos.5875 of 2004 is not an impediment for the Court to grant an order of ad interim injunction in the present suit since the High Court has only made an observation that constructions put up by the petitioners/ alienees will be subject to the result of the suits filed by the transfer petitioners therein; (iv) The question of res judicata does not arise since the suit filed by the power of attorney of the mother of the respondent/plaintiffs will not have any bearing over the present suit since the respective causes of action are entirely different. Unless the matter is finally heard and decided, it cannot operate as res judicata. No such suit as alleged by the petitioners/alienees is pending, and (v) The balance of convenience rests with the plaintiffs.

6. The point for consideration is:

Whether the civil revision petition is maintainable at this stageě

7. This revision has been filed against the grant of ad interim injunction by the learned Subordinate Judge of Chengalpattu. The revision petitioners are defendants 4 to 6 in the suit. They have claimed to have purchased the properties under registered sale deeds said to have been executed by the defendants 1 and 12, who are not the Santhathis of Devaraja Mudaliar. The plaintiffs are none other than the grand children of Gajaraj Mudaliar through his daughter Kamalabai Ammal, who was married to Parthasarathy. According to the plaintiffs as per the Will the properties should not be sold or encumbered in any manner. One Arivudiar Nambi, T.Arumugam, representing themselves to be the members of the general public and ben- eficiaries; of the Trust filed O.S.No.7 of 2003 against the trust and the defendants 1 to 6. We are not aware whether the suit is spending or disposed of.

8. When the plaintiffs i.e., grand children of Gajaraj Mudaliar through his daughter Kamalabai Ammal filed a suit against the two sons of Gajaraj Mudaliar's second wife and the alienees, respondents 3 to 6, they also filed I.A.No.295 of 2004 underO.39, Rules 1 and 3 of C.P.C., for grant of ad interim injunction and the same was granted by the trial Court on 3.6.2004. The plaintiffs in O.S.No.97 of 2003 filed Transfer C.M.Ps.5673 to 15875 of 2004 to transfer O.S.No.5152 and 5153 of 2004 on the file of the District Munsif Court, Thirukalikundarm to be tried along with O.S.No.97 of 2003 pending on the file of the Principal Subordinate Judge, Chengalpattu and this Court passed a common order wherein this Court has observed as follows:

3. But, however, the learned Advocate for the respondents has stoutly protested that the transfer petitioners are not entitled to have any order of injunction on the ground that the respondents, particularly, respondents 4 to 7 have purchased the properties in 1981 and 2002 and they have also taken possession of the same, demolished the main portion of the suit property and also demolished the other portion and put up construction in the suit property and in the said circumstances any order of injunction would cause unnecessary hardship to them.

4. Taking note of the fact that the respondents 4 to 7 are the purchasers of the suit property demolished the main portion of the suit property and also demolished the other portion of the suit property and put up construction and also continuing construction, it would not be is the interest of justice to prevent them from putting up further construction in the suit property. But, however, it is made clear that any manner of construction that will be put up by the respondents 4 to 7 in the suit property is subject to the result of the suits filed by the transfer petitioners herein.

9. This Court has taken note of the fact that the respondents 3 to 6 have purchased the suit property in the year 1981 and that they want to demolish the suit property and also demolished other portion of the suit property and put construction and continuing construction and has further held that any construction put up by the respondents therein in the suit property will be subject to the result of the suit filed by the transfer petitioners. This order was passed on 29.4.2004. Subsequently these plaintiffs have filed a suit in O.S.No.637 of 2004, which was later renumbered as 81 of 2004 and got interim injunction on 8.6.2004. The plaintiffs in the suit are not the parties in the Tr.C.M.P.No.5873 to 5875 of 2004. The power of attorney of Kamalabai Ammal, Arivudai Nambi is a party in the above transfer C.M.Ps. But the plaintiffs are the santhathis of Adilakshmi Ammal as mentioned earlier and they have got a right to initiate the proceedings.

10. The contention of the revision petitioners that no earlier permission was obtained under Sec.92 of the Code of Civil Procedure is not true. The tendency of the suit filed by the power of attorney of the members of the plaintiffs/respondents cannot operate as res judicata, unless the matter is finally, heard and disposed of. Whether the plaintiffs have mandatory provision of O.39, Rule 3-A, C.P.C., is a matter to be decided on facts by the trial Court and this Court cannot go into a roving enquiry with regard to the compliance of the provision. The remedy of the revision petitioners is to file an appeal, but no appeal has been filed. On the other hand, jurisdiction of this Court has been invoked under Art.227 of the Constitution of India.

11. In A. Venkatasubbiah Naidu v. S.Challappan and others A. Venkatasubbiah Naidu v. S.Challappan and others A. Venkatasubbiah Naidu v. S.Challappan and others (2001)1 MLJ. (S.C.) 75: (2000)7 S.C.C. 696, their Lordships of the Supreme Court have held thus:

Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognised principle which have gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies.

12. In the above circumstances, this civil revision petition is dismissed with a direction to the revision petitioners to approach the trial Court with a petition to vacate the injunction by filing necessary pleadings and documents. In the result, this C.R.P. is dismissed with costs. Consequently connected miscellaneous petitions are closed.

Tmt.S. Devi Others v. M/S. Adilakshmi Anim...