Ashok Kumar vs The Commissioner, Madurai Corporation, Anna Maligai and Others

S. Manikumar, J.—1. Resident of a house situated in S.No.63, New T.S. No.457, Settlement Re-Survey T.S. No.3340/2010, has sought for a writ of Mandamus to direct the Commissioner, Madurai Corporation, first respondent herein, to stop the illegal construction of the second respondent, in the pathway in front of the house at D.No.38/1, in Survey No. 63, New T.S. No.457, Settlement Re-Survey T.S. No. 3340/2010 at Asari Thoppu, Gandhi Nagar.

According to him, the said property and another property belonged to Sangumani Paradesikar Trust. On 18.02.1970, the earlier trustees entered into a rental agreement with one Pandian Asari, father of the writ petitioner, vide Reg.No.278/1970 and permitted his father to construct a superstructure. Accordingly, he constructed a house and it was also assessed to tax by the Commissioner, Madurai Corporation, the first respondent herein.

The petitioner has further contended that his father expired on 14.09.2015 and thereafter, his legal representatives jointly enjoyed the property. They have been paying the rent to the Trust. On 24.11.2010, a partition deed was also executed between the petitioner, his brothers and sisters. Portions of the property apportioned, are in possession and enjoyment of the petitioner, his brothers and sisters. When the matter stood thus, the second respondent filed a suit in O.S. No.825 of 1980 on the file of the Principal District Munsif Court, Madurai, for recovery of possession. The said suit has been dismissed. Description of the schedule property, mentioned in the suit is the property located on the eastern side of the property belonging to the Trust and it was also mentioned as pathway. The Trust filed a suit in O.S. No.655 of 2010, for the relief of recovery of possession. The petitioner has filed C.T.O.P. No.1 of 2011 and the same is pending. When the matter stood thus, the second respondent with an evil intention to evict the writ petitioner, is trying to build a room on the northern side of the passage. It infringes the right of the writ petitioner to use the pathway. The action of the second respondent is contrary to Sections 272 and 273 of the Madurai City Municipal Corporation Act, 1971. Though a representation to the Commissioner of Madurai Corporation, Madurai was made not to allow the second respondent to put up construction, without permission and approval, the same was not acted upon and therefore, the petitioner filed O.S. No.155 of 2016 on the file of the Principal District Munsif Court, Madurai, for a relief of injunction and not to disturb his possession and enjoyment.

According to him, the second respondent is trying to construct a building and if the same is allowed, pathway hitherto used by the petitioner would be closed. In this regard, he sent a representation dated 29.02.2016 to the Commissioner of Madurai Corporation, Madurai, the first respondent herein.

Another representation dated 05.03.2016, was also made. It is the contention of the petitioner that though the abovesaid representations have been acknowledged, no action has been taken and therefore, the petitioner is constrained to file this writ petition for a Writ of Mandamus, directing the first respondent to stop the illegal construction of the second respondent in the pathway in front of his house at D.No.38/1, in Survey No. 63, New T.S. No.457, Settlement Re- Survey No.T.S. No.3340/2010 at Asari Thoppu, Gandhi Nagar.

We have heard the learned Counsel for the petitioner and perused the materials on record.

A perusal of the prayer made in C.T.O.P. No.1 of 2011 in O.S. No.655 of 2010 on the file of the Principal District Munsif Court, Madurai, shows that the petitioner along with four others, have filed C.T.O.P. No.1 of 2011 in O.S. No.655 of 2010 for a prayer against the trustee of Sankumani Paradesikar Trust, the respondent therein, to sell the vacant site to the petitioners therein, for the value, that may be fixed by the Court. O.S. No.655 of 2010 has been filed by T.Gurusamy Asari, Trustee of Sankumani Paradesikar Trust, for recovery of possession and for a direction to hand over vacant possession to the trust.

The second defendant therein is the writ petitioner herein. The description of the property in the suit schedule, is as hereunder:

"Description of Property

(extracted as such)

The description of the property in C.T.O.P. No.1 of 2011 in O.S. No.655 of 2010, is extracted hereunder:

"Description of Property

(extracted as such)

As per the version of a petitioner, the suit in O.S. No.655 of 2010 on the file of the Principal District Munsif Court, Madurai, has been dismissed. The writ petitioner has also filed a suit in O.S. No.155 of 2016 on the file of the Principal District Munsif Court, Madurai, for a prayer directing the defendants therein and representatives, etc., not to disturb the peaceful possession and enjoyment of the plaintiff on the eastern passage way of the suit property. In the plaint averments, the petitioner/plaintiff has contended that he is in possession and enjoyment of the property and the defendants therein have attempted to build a store room.

T.Gurusamy Asari, Trustee of Sankumani Paradesikar Trust, Madurai/first respondent herein, is the first defendant in the suit. Description of the suit schedule property in O.S. No.155 of 2016 is extracted hereunder:

"Schedule of Property

(extracted as such)

The cause of action for filing of the suit, as per paragraph 16 of the plaint averments in O.S. No.155 of 2016, on the file of the Principal District Munsif Court, Madurai, is extracted hereunder:

"16. Cause of Action arose on and from 18.02.1970 when the predecessors of the Madurai Sangumani Paradeshigar Trust delivered the suit property and its extended property to the father of the plaintiff under registered rent agreement and on and from 26.06.1980 when the predecessors of the said Trust filed a suit in O.S. No.825 of 1980 against father of the plaintiff and on and from 27.02.2016 when the defendants tried to built a store room in the eastern passage way of the suit property and the plaintiff made objection to their construction and on and from 28.02.2016 when the hirelings of the defendants came to the suit property and threatened the plaintiff''s wife and the plaintiff made complaint in the Madhichiyam Police Station and the police issued receipt in CSR No. 56/2016 to the plaintiff and on and from the subsequent time a threat is made by the defendants subsequent to the complaint at Madurai and all the cause of action fall under the jurisdiction of this Hon''ble Court."

(extracted as such)

Though the petitioner, has sought for permanent injunction, restraining the defendant/second respondent herein, from disturbing his peaceful possession and enjoyment, of the suit property, it is not known as to whether the petitioner/plaintiff has sought for any interim order by filing interlocutory application in the suit.

Before the civil Court, asserting his right over the suit property and claiming to be himself in possession, the petitioner has filed a suit, in O.S. No.155 of 2016 for injunction and at the same time, before this Court, contending inter alia, that the first respondent is attempting to put up a room, a writ of Mandamus is sought for.

Thus, it could be seen from the above extract, the writ petitioner has approached two fora to achieve the same objective of protecting his alleged possession and enjoyment of the suit property. When he is already in possession of the subject property, nothing prevented him from taking an interlocutory application in the pending suit.

Remedy under Article 226 of the Constitution of India, is sought to be invoked, alleging illegal construction without approval and permission. The same contentions have been made in paragraph 15 of the plaint, to the effect that an unlawful construction of a store room, is sought to be made by the second respondent, on the eastern passage of the suit property and hence, the plaintiff/writ petitioner has filed a suit for permanent injunction.

As observed earlier, it is not known as to whether the plaintiff/writ petitioner has filed any interlocutory application before the civil Court. However, in the suit, he has sought for a judgment and decree directing the defendants therein, not to disturb his peaceful possession and enjoyment, on the eastern passage, and before this Court, in a camouflaged manner, has sought for a Mandamus, to stop the alleged illegal construction of the second respondent, in the pathway at Door No. 38/1 in Survey No. 63, New T.S. No.457, Settlement Re-Survey No.T.S. No.3340/2010, Asari Thoppu, Gandhi Nagar.

Going through the entire averments both in the suit in O.S. No.155 of 2016 and the present writ petition in W.P(MD)No.4916 of 2016 and the materials on record, this Court is of the view that the writ petition is nothing but forum shopping.

In Chetak Construction Ltd., v. Om Prakkash reported in , 1998 (4) SCC 577, the Hon''ble Supreme Court, at paragraph 16, held that "a litigant cannot be permitted choice of the forum and every attempt at forum shopping must be crushed with a heavy hand."

In Tamil Nadu Mercantile Bank Share Holders Welfare Association v. S.C. Sekar reported in , 2009 (2) SCC 784, at paragraph 51, the Hon''ble Supreme Court held that the superior Courts of this country must discourage forum shopping. A person seeking equity must do equity. A party cannot take recourse to a machination which amounts to abuse of process of Court.

In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav reported in , 2005 (1) CTC 783, the Hon''ble Supreme Court has observed, that ordinarily Court would not permit litigant to revisit issues that had been canvassed earlier as it would lead to speculation and uncertainty in administration of justice and may lead to forum hunting.

In the light of the discussions and decisions cited supra, this Court is not inclined to entertain the writ petition and accordingly, the same is dismissed. No costs.