Beach Estates vs Likhami Holdings Limited

Shivaraj Patil, J.—This Civil Revision Petition is filed by the plaintiffs in O.S.No. 252 of 1995 in the Court of the Additional Subordinate

Judge of Chengalpattu, aggrieved by the order dated 1.7.1996 passed by the learned Principle District Judge, Chengalpattu in C.M.A.No. 55 of

1996 reversing the order dated 24.11.1995 passed by the learned Additional Subordinate Judge, Chengalpattu in I.A.No. 350 of 1995 in

O.S.No. 252 of 1995 and dismissing the application filed by the plaintiffs i.e., I.A.No. 350 of 1995 for grant of injunction.

The parties in this order will be referred to as they were arrayed in the suit itself.

Briefly stated the facts leading to the filing to this civil revision petition are the following :-

The plaintiffs have filed the suit O.S.No. 252 of 1995 in the Court of the Subordinate Judge, Chengalpattu for grant of a decree of permanent

injunction restraining the defendant, his men, servants, agents and representatives, from interfering with the plaintiffs possession of the suit property,

stating that they purchased the suit property measuring an extent of 6 acres 95 cents under six sale deeds. In the plant the suit land is described as

A-B-C-D-E-F-G. Their vendors delivered possession of the suit property and that the plaintiffs have been in possession and enjoyment of the

same. After purchase of the property they have enclosed the entire area with fence on the north and south, and with a compound wall on the east

and west, with a wicket gate. They have also painted on the wall ""BEACH STATE SAND AVENUE"". They have kept a watchman over the

property who is residing in the suit property itself. The defendant having no interest in the suit property tried to interfere with the possession on

23.10.1995 which was prevented by the plaintiff. They apprehend that the defendant may repeat his attempts, Hence an application was filed in

the suit for temporary injunction.

The defendant denied that the plaintiffs purchased the property under six sale deeds. He also denied the allegations that the vendors of the

plaintiffs delivered possession, and that the plaintiffs are in possession of the same. The defendant states that the allegation that after purchase the

plaintiffs have enclosed the area with barbed wires and that they have put up a watchman quarters and the watchman is residing in the property are

not true. The plaintiffs have no title to the suit property. Their vendors were not in possession of the suit property. The power of attorney of the

plaintiffs is the plaintiffs'' own brother. The defendant has purchased 4 acres and 60cents in Survey No. 168/3E-1A and 1A1A with specific

boundary under sale deed dated 20.11.1986 and took possession of the same. The plaintiffs have not properly described the suit property.

The defendant further stated that his wife viz., Chandrika purchased an extent of 96 cents in Survey No. 168/3E1A from one Damodaran and

86 cents in the same survey No. from one Rajendran, and she is in possession and enjoyment of the property of those extents. The defendant has

enclosed the property by putting up a compound wall and has put up a small gate on the east and a big gate on the west, having put up wire fence

with stone pillars on the south and north. He has also proposed to put up a guest house and garden in the suit property. He has also appointed a

watchman to look after the property. He has put up the name board ''LIKHAMI HOLDINGS''. The patta and revenue records stand in the name

of the wife of the defendant. After obtaining the injunction order, in order to take forceful possession on 13.11.1995, at the instigation of the

plaintiffs, the name board was demolished. The defendant is in lawful possession of the suit property.

The trial Court on 24.11.1995 had allowed the petition granting temporary injunction. As already stated above, against the said order, C.M.A.

No. 55 of 1995 was filed in the Court of the Principal District Judge, Chengalpattu. In the said appeal, before the learned District Judge, the

defendant filed I.A.No. 120 of 1996 and I.A.No. 146 of 1996 to receive additional documents under Order 41 Rule 27 of C.P.C. The plaintiffs

also filed I.A.No. 143 of 1996 for receiving additional documents.

The learned District Judge, after hearing both the parties, considering the material on record including the additional documents produced by

allowing the above-mentioned I.As. filed by both the parties to receive additional documents, allowed the C.M.A.No. 55 of 1995 by the order

under appeal on 1.7.1996, in the result, dismissing the injunction application filed by the plaintiffs. Hence the plaintiffs are before this Court in the

C.R.P. as stated above challenging the order of the learned Principal District Judge.

Shri M. Venkatachalapathy, learned senior counsel for the petitioners contended that the learned District Judge manifestly erred in interfering

with the discretionary order dated 24.11.1995 passed by the learned Additional Subordinate Judge granting injunction in I.A.No. 350 of 1995 in

O.S.No. 252 of 1995; it is well settled in law that the scope of miscellaneous appeals filed against the discretionary orders passed by the trial

Courts either granting or refusing injunction is limited; the appellate Court could interfere in such discretionary orders only on showing that the

discretion exercised by the trial Court in the matter of granting or refusing injunction was either perverse or capricious or arbitrary; the order dated

24.11.1995 passed by the Subordinate Judge granting injunction was not such an order where the exercise of discretion by the trial Court could be

said to be either arbitrary, perverse or capricious. The learned counsel also referred to various documents and the material on record in support of

his submission to contend that the order under revision dated 1.7.1996 passed by the learned Principal District Judge is unsustainable.

Shri R. Thiagarajan Learned counsel for the respondent--defendant argued justifying the order passed by the learned District Judge reversing

the order passed by the trial Court and dismissing the application made by the petitioners--plaintiffs for grant of injunction. He submitted that the

petitioners were guilty of suppressing material facts; they, having sold major portion of the suit property, and having delivered possession to others,

did not have any subsisting right and interest to claim injunction over the suit property; they have not disclosed above the sale of property and

delivery of possession to others; they have wrongly asserted that they are the absolute owners in possession of the property; this ground alone was

sufficient to dismiss the application filed by the petitioners for grant of injunction.

In support of his submission the learned counsel pointed out to the averments made in the plaintiff as well as in the affidavit filed by the

petitioners in the applications. He also referred to various documents placed on record before the trial Court as well as the first appellate Court to

contend that the petitioners were not at all entitled for grant of injunction order. The petitioners failed to establish prima-facie case and that the

balance of convenience was in their favour. Thus the learned counsel for the respondent--defendant prayed for dismissal of the revision petition.

I have considered the submissions made by the learned counsel for the parties.

No doubt, both the learned counsel made submissions in support of their respective contentions and they have also cited certain decisions

touching the principles governing the grant or refusal of injunction and as to the scope of appeals against the discretionary orders passed by the trial

Courts in the matter of granting or refusing injunctions. It may not be necessary to refer to the decisions as the principle in regard to the

aforementioned aspects are well settled.

It cannot be disputed that in the appeal C.M.A.No. 55 of 1995 on the file of the Principal District Judge, Chengalpattu, the discretionary order

dated 24.11.1995 passed by the trial Court i.e., the learned Additional Subordinate Judge, Chengalpattu in I.A.No. 350 of 1995 in O.S.No. 252

of 1995 was called in question. The learned district Judge in the appeal had to essentially examine the validity, correctness and the property of the

said order, of course having regard to the scope of such an appeal. In other words the order made in I.A.No. 350 of 1995 in the discretion of the

trial Court granting injunction could be reversed only on finding that the discretion exercised by the trial Court on the material placed before it was

either perverse, arbitrary or capricious.

Before the learned District Judge, the respondent--defendant filed I.A.No. 120 of 1996 and I.A.No. 146 of 1996 to received 33 documents

as additional documents in the Civil Miscellaneous Appeal 55 of 1995 under Order 41, Rule 27 of C.P.C. Similarly the petitioners also filed

I.A.No. 143 of 1996 to receive 25 documents as additional documents. The learned District Judge allowed all the said three I.As.

As can be seen from the order under revision, the learned District Judge has relied upon the additional documents produced by the parties, and

considering some of the documents as material documents, came to the conclusion that the learned Subordinate Judge was wrong in granting

injunction in favour of the petitioners. I specifically asked the learned counsel for the parties, whether additional documents could be received by

the appellate Court in a miscellaneous appeal challenging the order granting or refusing injunction, and whether it was permissible for the appellate

Court to find fault with the discretion exercised by the trial Court in the matter of granting or refusing injunction on the basis of the material that the

placed before the trial Court at that stage. The learned counsel submitted that the learned Principal District Judges has received additional

documents produced by both the parties and passed the order under appeal.

In a miscellaneous appeal, the appellate Court could reverse the discretionary order of the trial Court in granting or refusing an injunction order

only when the appellate Court would find that the discretion exercised by the trial Court was either capricious, perverse or arbitrary, and not even

on the ground that two views are possible on the material placed before the trial Court. If additional documents which were produced before the

learned District Judge had been produced before the trial Court, the position would have been different. The trial Court could have exercised its

discretion having regard to such documents also. When such documents were not placed before the trial Court, the appellate Court receiving

additional documents and then stating that the order passed by the trial Court granting injunction in favour of the petitioners was wrong, cannot be

sustained.

The learned District Judge was called upon to scrutinise and decide whether the discretion exercised by the trial Court was capricious,

perverse or arbitrary, in the given circumstances prevailing on the date of passing the order by the trial Court having regard to the material that was

placed before it including the situation existing on the date of filing the suit. In my view, it is not open to the appellate Court to receive additional

documents in such miscellaneous appeals challenging the order of the trial court granting or refusing the order of injunction for the simple reason

that if those documents were produced before the trial Court, the trial Court could have exercised its discretion keeping in view those documents

also. The aggrieved party could always take up such matters in appeal.

At any rate, if the appellate Court were to consider that the documents sought to be produced were material having a bearing in the exercise of

discretion in the matter of granting or refusing injunction, it could remit the matter to the trial Court along with the additional documents after setting

aside the order impugned in the appeal so that the trial Court could, in the first place, exercise its discretion having regard the additional documents

also what could be the combined effect of the materials already placed before the trial Court and the additional documents is a matter that could be

examined by the trial Court. This apart the aggrieved party will have a right of appeal challenging the order of discretion passed by the trial Court.

Under these circumstances, I have no hesitation to hold that the learned District Judge was not right in receiving the additional documents in the

miscellaneous appeal challenging the discretionary order of granting injunction in favour of the petitioners, and acting on such additional documents

to set aside the discretionary order passed by the trial Court. In any view of the matter the learned District Judge ought to have remitted the matter

to the trial Court along with the additional documents produced after setting aside the order passed by the trial Court and directing it to dispose of

the application filed for grant of temporary injunction by the petitioners/plaintiffs afresh.

The suit properties are vacant lands purporting to use them as beach resorts. Even according to both the parties, only compound walls are built

on the east and west, and fenced with barbed wires on the north and south, and no material structures are put up. Under the circumstances, in my

opinion, it is appropriate to direct the parties to maintain Status-quo and remit the case to the trial Court i.e., the learned Additional Subordinate

Judge, Chengalpattu, directing it to dispose of the I.A.No. 350 of 1995 in O.S.No. 252 of 1995 afresh on merits and in accordance with law

taking into consideration the additional documents filed by both the parties before the learned Principal District Judge.

In the result, for the reasons aforementioned, this civil revision petition is allowed; both the orders dated 1.7.1996 passed by the learned

Principal District Judge, Chengalpattu in C.M.A.No. 55 of 1995 and the order dated 24.11.1995 passed by the learned Additional Subordinate

Judge, Chengalpattu in I.A.No. 350 of 1995 in O.S.No. 252 of 1995 are set aside; the matter is remitted to the learned Additional Subordinate

Judge, Chengalpattu to dispose of I.A.No. 350 of 1995 in O.S.No. 252 of 1995 afresh on merits and in accordance with law taking into

consideration the additional documents filed by both parties before 30.6.1997. The learned Principal District Judge, Chengalpattu is directed to

send the additional documents filed before him to the Court of the learned Additional Subordinate Judge, Chengalpattu. The parties are directed to

maintain Status-quo existing on the suit property till the disposal of the LA. and subject to the orders to be passed, in the said I.A.No. 350 of

1995.