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Case Number

C.M.P No. 12626 of 1996 in W.A.SR No. 61622 of 1996 and O.S No. 130/96

Advocates

Mr. B. Nedunchezhiyan, Advocate for the Petitioner.
Mr. K.P Sivasubramanian, Government Pleader for the Respondents.

Judges

K.A Swami, C.J
AR. Lakshmanan, J.

Acts

ARTICLE 227 CONSTITUTION OF INDIA

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Smart Summary

Case Summary — Judgment by AR. Lakshmanan, J.

Factual and Procedural Background

This opinion concerns a petition filed by Murugesan (C.M.P No. 12626 of 1996) seeking leave to file a Writ Appeal against an order of a learned single judge dated 29.1.1996 in W.P No. 5694 of 1989. The writ petition (W.P No. 5694 of 1989) had been filed by Sri Kundaramadai Ayyanar Koil, Sivagiri (represented by its trustee Arunachala Thevar) to call for and quash certain District Collector and Chief Administrative Officer, Fish Farmers Development Agency, Tirunelveli records and consequential orders that had granted fishery rights in respect of Melakarisalkulam Tank to other parties (respondents 4 to 6 in that writ).

The temple (writ petitioner) relied on a trustee's affidavit stating that the temple had been granted an exclusive, permanent right to the fishery of the tank under an earlier District Collector order (R. Dis. 25909/68 dated 16.4.1968) and that the impugned order had taken away that right without affording an opportunity, thereby violating principles of natural justice. The learned single judge allowed the writ petition, set aside the District Collector's order and directed the Collector to pass suitable orders after giving the writ petitioner an opportunity to be heard.

Murugesan (the present petitioner) sought leave to appeal on the ground that he was aggrieved by the single judge's order and that he and co-allottees had instituted a civil suit (O.S No. 205 of 1993, later transferred and renumbered as O.S No. 130 of 1996) and obtained an interim injunction (I.A No. 890 of 1993, renumbered I.A No. 173 of 1996) restraining the Special Officer, Vasudevanallur Panchayat Union, from interfering with their fishing rights. The Court, invoking its suo motu jurisdiction under Article 227 of the Constitution, directed the subordinate court to transmit the records in O.S No. 205 of 1993 for review.

On perusal of the suit record the Court found that the suit plaintiffs (including Murugesan and two co-plaintiffs who were respondents in the writ) had obtained an interim injunction but had not disclosed that the licence granted to the Tirunelveli District Fish Farmers Development Agency had expired on 8.12.1993. The Special Officer's counter averred that the Agency's five-year licence ran from 9.12.1988 to 8.12.1993 and therefore neither the Agency nor the plaintiffs had any subsisting right thereafter. The Court concluded that material facts had been suppressed in obtaining the interim injunction, that the injunction had been continued past the expiry of the lease, and that the suit and injunction were therefore liable to be dismissed.

Legal Issues Presented

Whether leave should be granted to Murugesan to file a Writ Appeal against the single judge's order in W.P No. 5694 of 1989.
Whether the interim injunction obtained in O.S No. 205 of 1993 (I.A No. 890 of 1993) should be allowed to continue where the plaintiffs allegedly suppressed the fact that the underlying licence/lease (held by the Fish Farmers Development Agency) had expired on 8.12.1993.
Whether the plaintiffs had any subsisting leasehold or fishery right in respect of Melakarisalkulam Tank after 8.12.1993, and relatedly, whether the suit's basis continued to exist after that date.

Arguments of the Parties

Murugesan (petitioner seeking leave to appeal / plaintiff in the suit)

Claimed to be a person aggrieved by the single judge's order and therefore sought leave to file a Writ Appeal against W.P No. 5694 of 1989.
Asserted that he and co-allottees had filed a suit (O.S No. 205 of 1993) and obtained an interim injunction restraining interference with their fishing rights, and that the trustees of Sri Kundaramadai Ayyanar Koil were aware of that suit and injunction.
Contended that the writ petitioner obtained the writ order without impleading Murugesan and thus "behind his back," and that unless the writ is set aside the petitioner would suffer great loss and hardship.

Sri Kundaramadai Ayyanar Koil (writ petitioner / represented by trustee)

Affidavit stated the temple had been granted exclusive and permanent fishery rights over Melakarisalkulam Tank pursuant to a District Collector order (R. Dis. 25909/68 dated 16.4.1968) and that those rights were being enjoyed and had not been violated until the impugned order.
Asserted that the District Collector's impugned order took away the temple's permanent fishery right without giving the temple an opportunity to be heard, violating principles of natural justice.

Special Officer, Vasudevanallur Panchayat Union (defendant in the suit)

Contended that the fishery right had been granted to the Tirunelveli District Fish Farmers Development Agency for the period 9.12.1988 to 8.12.1993 and that this right expired on 8.12.1993; consequently, neither the Agency nor the plaintiffs had any right after that date.
Asserted that the Agency had no authority to grant any lease to the plaintiffs after the expiry of the licence and that no lease in favour of the plaintiffs had been granted.
Relied on administrative directions from the District Collector to lease by public auction after expiry (O.M No. 12727/90 dated 23.7.1990) and on G.O.Ms No. 367, Rural Development Department dated 3-5-1990.
Contended that the plaintiffs suppressed the expiry of the Agency's licence when seeking interim relief, thereby misleading the subordinate court and obtaining an injunction by misrepresentation.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's reasoning proceeded in a stepwise fashion, based explicitly on the material in the transmitted suit records:

The Court exercised suo motu jurisdiction under Article 227 of the Constitution to call for the records of O.S No. 205 of 1993 in order to verify the petitioner's claims that an injunction in that suit affected the rights in question.
On review of the plaint, affidavits and documents the Court noted two primary documentary exhibits relevant to the plaintiffs' claim: the proceedings of the Chief Executive Officer, Fish Farmers Development Agency in Na.Ka No. 215/93-2 dated 13.9.1993 and a receipt showing payment of Rs. 9,000/- on 13.9.1993. Neither document indicated the period of any lease.
The Special Officer's counter specifically alleged that the Fish Farmers Development Agency's licence had been for five years from 9.12.1988 to 8.12.1993 and that this licence expired on 8.12.1993; therefore, post-expiry neither the Agency nor the plaintiffs had any right to the fishery or to grant a lease.
The Court found that the plaintiffs (including Murugesan) did not disclose this material fact (the expiry of the Agency's licence) to the Subordinate Judge when seeking interim relief; as a result, the interim injunction was allowed to continue beyond the expiry of the licence.
The Court characterized the Subordinate Judge's grant of interim relief as mechanically made and indicative of non-application of mind, in light of the nondisclosure; where a party obtains relief by suppressing material facts or by misrepresentation, that relief cannot be allowed to stand.
The Court further found it improbable that Murugesan was unaware of the writ proceedings when two of the co-plaintiffs in the suit were respondents in the writ and were represented by counsel; thus Murugesan's claim of ignorance was not accepted.
Given (a) the suppression of the material fact of licence expiry, and (b) that the basis of the suit (a subsisting lease/right) had in any event ceased to exist after 8.12.1993, the Court concluded that the injunction and the suit were unsustainable and constituted an abuse of process.

On these findings, the Court held that the present petition for leave to appeal based on the plaintiffs' false or suppressed pleadings was not tenable, and that the suit and the injunction obtained in it could not be permitted to continue.

Holding and Implications

Holding:

The Court's dispositive rulings are as follows:

C.M.P No. 12626 of 1996 is dismissed.
O.S No. 205 of 1993 and I.A No. 890 of 1993 (on the Subordinate Judge's file), which were transferred and renumbered as O.S No. 130 of 1996 and I.A No. 173 of 1996 on the District Munsif Court, Sankarankoil, are dismissed.
There will be no order as to costs.
The suit records, a copy of this judgment and a decree dismissing the suit shall be sent to the District Munsif's Court, Sankarankoil.

Implications:

Direct effect on the parties: Murugesan's application for leave to file a Writ Appeal is denied; the civil suit and its interlocutory injunction obtained by Murugesan and co-plaintiffs are dismissed; the interim injunction is vacated.
The Court based its decision on factual findings in the recorded material: primarily the expiry of the Fish Farmers Development Agency's licence on 8.12.1993 and the plaintiffs' failure to disclose that expiry when obtaining interim relief.
The opinion does not set out or declare any novel legal principle or binding precedent beyond application of settled principles regarding suppression of material facts, abuse of process and the requirement of full disclosure when seeking equitable relief; the ruling is confined to the facts of these proceedings.

Administrative note from the judgment: The suit records and a decree dismissing the suit are to be transmitted to the District Munsif's Court, Sankarankoil.

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Murugesan v. Sri Kundramadai Ayyanar Koil, Sivagiri, Rep. Its Trustee Arunachala Thevar And 5 Others

AR. Lakshmanan, J.

The above petition has been filed by one Murugesan to grant leave to him to file the Writ Appeal against the order of a learned single judge of this Court dated 29.1.1996 in W.P No. 5694 of 1989.

2. The Writ Petition was filed by the 1st respondent herein Sri Kundaramadai Ayyanar Koil, Sivagiri, represented by its trustee Arunachala Thevar to call for the records of the District Collector, Tiruneleveli, Kattabomman District, in Na.Ka No. 7 49546/88 dated 20.3.1989 signed on 11-4-1989 and the consequential order in Na.Ka No. 1603/88 dated April, 1989, passed by the Chief Administrative Officer, Fish Farmers Development Agency, Tirunelveli, granting the fishery right of Melakarisalkulam Tank to respondents 4 to 6 therein, and to quash the same and consequently forbear the respondents therein from interfering with the fishery rights of the petitioner over the Melakarisalkulam, Royagiri Village, Sivagiri Taluk, Tirunelveli Kattabomman District.

3. In support of the Writ Petition, one of the trustees of the petitioner temple has sworn to an affidavit wherein he has stated that the petitioner temple was granted the exclusive right to enjoy the fishery right of the tank under the name and style of Melakarisalkulam subject to certain conditions as per the order of the District Collector, Tiruneveli, in R. Dis. 25909/68 (g) 16.4.1968 He has further stated that the petitioner temple was fulfilling all the conditions stated in the order and there had been no notice of violation of any of the conditions at any time and that the said right has been taken away by the District Collector, Tirunelveli. According to the writ petitioner, the right to enjoy the fishery right of Melakarisalkulam tank was given to the petitioner temple permanently and the District Collector, Tirunelveli has passed the impugned order taking away that right without giving an opportunity to the petitioner. Under those circumstances, the petitioner submitted that the order passed by the District Collector has violated the Principles of Natural Justice.

4. After hearing the learned counsel for the writ petitioner and the learned Addtional Government Pleader on behalf of the respondents, the learned single judge allowed the Writ Petition by setting aside the order passed by the District Collector, Tirunelveli and directed him to pass suitable orders after giving an opportunity to the writ petitioner. The learned judge was of the opinion that the order impugned in the Writ Petition could not have been passed without affording an opportunity to the writ petitioner when a right of fishery has been given to it permanently and even though there is a clause in the lease that the government can cancel the fishery patta at any time without notice, when the right of the party is being affected, naturally the said party should be heard before passing the said order.

5. The present petition C.M.P No. 12626 of 1996 has been filed to grant leave to the petitioner herein to file a Writ Appeal against the order in W.P No. 5694 of 1989 on the ground that he is the person aggrieved by the order made in the Writ Petition and that the petitioner and other co-allottees have filed a suit in O.S No. 205 of 1993 on the file of the Subordinate Judge, Tenkasi, (which was later transferred to the District Munsif Court, Sankarankoil and re-numbered as O.S No. 130 of 1996) and obtained interim injunction in I.A No. 890 of 1993 (re-numbered as I.A No. 173 of 1996 on the file of the Disctrict Munsif Court, Sankarankoil) restraining the Special Officer, Vasudevanallur Panchayat Union, from interfering with their fishing right in the Melakarisal Tank till the disposal of the suit. According to the petitioner, the said suit is still pending and the order of injunction is also in force and that the trustees of Sri Kundramadai Ayyanar Koil, Sivagiri, are also aware of the same. It is further contended that when the petitioner and the co-allottees were enjoying the fishing right, the writ petitioner, without impleading the petitioner herein, obtained an order from this Court behind his back. Unless the order in W.P No. 5694 of 1989 is set aside, the petitioner would be put to great loss and hardship.

6. On 17.9.1996, we passed the following order:

“Learned Government Pleader is directed to take notice for respondents 2 and 3. The petitioner claims a right on the basis of a temporary injunction he has obtained in O.S No. 205 of 1993 on the file of Sub Court, Tenkasi, even though his lease period was over long ago.

Hence, in this matter, we would like to exercisee our jurisdiction suo motu under Article 227 of the Constitution of India and call for the records of the suit. We, accordingly, direct the Sub Court, Tenkasi to transmit the records in O.S No. 205 of 1993 on its file along with the papers in the Interlocutory Application and the orders passed thereon.”

Accordingly, the District Munsif, Sankarankoil, to whose file the case was transferred, has transmitted the records to this Court. We have perused the same.

7. The suit O.S No. 205 of 1993 (now O.S No. 130 of 1996 on the file of the District Munsif Court, Sankarankoil) was filed in the Sub Court, Tenkasi by the petitioner herein Murugesan as 4th plaintiff along with three others viz., Sadayandi, Sermakkani and Jayasuriyan. It is seen from the cause title of W.P No. 5694 of 1989 that Sadayandi and Sermakkani, who are plaintiffs 1 and 2 in the suit are respondents 4 and 5 in W.P No. 5694 of 1989. In the Writ Petition, Sadayandi and Sermakkani/respondents 4 and 5 were served on 29.5.1989 and they were also represented by one Mr. V. Sundararajan, Advocate.

8. That suit was laid on 6-10-1993 for declaration and also for a permanent injunction restraining the Special Officer, Vasudevanallur Panchayat Union, from interfering with the plaintiff's fishing rights. It is stated in the plaintiff that the plaintiffs viz. the petitioner herein, respondents 4 and 5 in W.P No. 5694 of 1989 and one Jayasuriyan are in possession and enjoyment of the Melakarisalkulam Tank and that the fishery right was given to them on 13.9.1993 for a sum of Rs. 9,000/-. They are enjoying the fishery right for the last five years. Along with the plaint, the plaintiffs filed I.A No. 890 of 1993 for interim injunction. In the affidavit filed by the petitioner it is stated that the 4th plaintiff Murugesan/petitioner herein had paid a sum of Rs. 9,000/- and that the plaintiffs are enjoying the fishery right. No particulars in regard to the period of lease has been mentioned in the affidavit. It is only stated that on 13.9.1993, a sum of Rs. 9,000/- was deposited by the 4th plaintiff/petitioner herein and that the fishery right is being enjoyed by the plaintiffs.

9. In that suit, the plaintiffs filed four documents out of which the relevant documents are document Nos. 1 and 2. The first document is the proceedings of the Chief Executive Officer, Fish Farmers Development Agency, Tiruneveli, in Na.Ka No. 215/93-2 dated 13.9.1993 The second document is the receipt issued by the said Agency in the name of the petitioner herein for payment of Rs. 9,000/- on 13-9-1993. The period of lease or the lease amount has not been mentioned in these documents. The learned Subordinate Judge, Tenkasi, on 6-10-1993 passed the following order “Heard, perused documents. Ad interim injunction and notice by 3-12-1993. The said interim injunction was again extended on 3-12-1993. On 18.2.1994, the respondent/Special Officer, Vasudevanallur Panchayat Union filed the counter.

10. In the counter filed by the Special Officer it has been specifically stated that the fishery right of Melakarisal Tank was granted to the Tirunelveli District Fish Farmers Development Agency for a period of five years from 9.12.1988 to 8.12.1993 and the said right expired on 8.12.1993 and thereafter neither the plaintiffs nor the Fish Farmers Development Agency has any right over the tank and that the Fish Farmers Development Agency has no right to grant lease, if any, in favour of the plaintiffs after the expiry of the period viz., 8.12.1993 This apart, the fishery right was given only to Fish Farmers Development Agency and no lease was given to the plaintiffs in the suit and therefore, they have no right to claim any fishery right over the Melakarisal Tank. Further, the District Collector, Tirunelveli, has also issued directions to lease out the fishery right by public auction after the expiry of the lease granted in favour of the Fish Farmers Development Agency by his proceedings in O.M No. 12727/90 dated 23.7.1990 Reliance was also placed on the G.O.Ms No. 367, Rural Development Department, dated 3-5-1990. Therefore it is contended by the Special Officer of Vasudevanallur Panchayat Union, in the counter that the plaintiffs have absolutely no right to claim the fishery right which they claimed in the suit and also in the injunction petition.

11. It is thus seen from the counter affidavit filed by the defendant in the suit viz., Special Officer, Vasudevanallur Panchayat Union, that the plaintiffs in the suit have no subsisting lease hold right over the Melakarisalkulam Tank. The licence granted to the Tirunelveli District Fish Farmers Development Agency has expired by 8-12-1993. The suit was filed by the petitioner herein and three others on 6-10-1993 in the Sub Court, Tenkasi. They have also filed an application for injunction. Even though on the date when they filed the suit, the plaintiffs have the lease hold right, but the same expired by 8-12-1993. However, the plaintiffs have not brought this fact to the notice of the Subordinate Judge, Tenkasi, and by suppressing this material fact, they allowed the interim injunction to continue even after the expiry of the lease period on 8-12-1993. The Subordinate Judge, Tenkasi, has also passed an order granting interim injunction in a mechanical manner which only discloses non-application of mind on the part of the Subordinate Judge, Tenkasi (Mr. M. Pappu). Therefore, the order passed without application of mind and obtained by the plaintiffs on the basis of incorrect particulars and by suppression of material facts cannot be allowed to stand in the interest of justice. Therefore, the interim injunction granted in I.A No. 890 of 1993 in O.S No. 205 of 1993 on the file of the Subordinate Judge, Tenkasi and now transferred to the file of the District Munsif, Sankarankoil and re-numbered as I.A No. 173 of 1996 in O.S No. 130 of 1996, shall stand vacated.

12. It is well settled proposition of law that it is the duty of the person invoking the jurisdiction of the Court to make a full and true disclosure of all relevant facts. He should not suppress any fact. If he makes a statement, which is false, or conceals something from the Court, which is relevant, the Court will refuse to go into the matter. The plaintiffs, in order to obtain interim injunction, have misled the Court as to true facts. Therefore, the persons who have abused the process of Court should not be allowed to proceed any further with the suit filed by them or with the permission now sought for by one of the plaintiffs to file a Writ Appeal against the order in W.P No. 5694 of 1989 dated 29.1.1996 on the basis of false plea set up by them. As noticed already by making a false representation that the plaintiffs are in possession and enjoyment of the Melkarisalkulam Tank and actually enjoying the fishery right, which in fact was not given to them after 8.12.1993, the plaintiffs have obtained an order of interim injunction from the Sub Court, Tenkasi. Therefore, on this ground, the present petition to grant leave is liable to be dismissed.

13. The contention of the petitioner that he is not in the know of things in regard to the filing of W.P No. 5694 of 1989 by Sri Kundramadai Ayyanar Koil, Sivagiri, represented by its trustee, may not also be true since plaintiffs 1 and 2 in the suit, who filed it along with the petitioner herein and another, are respondents 4 and 5 in W.P No. 5694 of 1989 and they were also represented by a Counsel. Under such circumstances, the plea of the petitioner, who is one of the plaintiffs along with respondents 4 and 5 in the Writ Petition and another, that he was not aware of the writ proceedings cannot at all be accepted. In our opinion, the petitioner herein is also not entitled to pursue the suit and the injunction application since the petitioner herein and respondents 4 and 5 in W.P No. 5694 of 1989 and another have virtually obtained the injunction order in the suit jointly filed by the petitioner herein and others, which is a nullity and non est in the eyes of laws. As the period of lease expired on 8.12.1993, the very basis of the suit has disappeared, therefore, there is no justification to permit the suit to be continued. In view of this, the suit as well as the injunction application are liable to be dismissed, hot only on the ground that there is suppression of material facts but also on the ground that the very basis of the suit does not exist.

14. For the foregoing reasons, C.M.P No. 12626 of 1996 is dismissed and O.S No. 205 of 1993 and I.A No. 890 of 1993 on the file of the Subordinate Judge, Tenkasi, which were transferred to the District Munsif Court, Sankarankoil, and re-numbered as O.S No. 130 of 1996 and I.A No. 173 of 1996, are also dismissed, However, there will be no order as to costs.

The suit records along with a copy of this judgment and a decree drawn as dismissing the suit, shall be sent to the District Munsif's Court, Sankarankoil.

KA/RR/VCS

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