S. Ramasamy vs V. Ranganayaki and 5 others

Dead men tell no tales, it is said, but in this case a dead man did. The respondents 1 and 2 filed O.S.No.1973 of 1996 against the third

respondent herein and four others for bare injunction in respect of 49 cents of land bounded on the south by Ponnamallee High Road, east and

north by Tamarai Kulam and west by their own land. Notice was ordered and the first defendant in the said suit who is the predecessor in interest

of the petitioners herein stated that the defendants were in possession of 16 cents out of 49 cents and that as early as 1977, the Revenue

Department had issued a notice to them u/s 7 of the Act 3 of 1905. The same 16 cents of the land is the subject matter of a second suit out of

which this revision arises. According to the third respondent survey No. 149 which is adjacent to survey No. 150 belongs to him and the said 16

cents is the only way from the main road to the property in Survey No.149. It was stated in the counter that if injunction was granted for the entire

49 cents the only access to Survey No.149 would be by helicopter. This suit is pending.

Subsequently, the respondents 1 and 2 filed O.S.No.6673 of 1998 against the petitioner and respondents 3 to 6 for the same relief. The cause

of action for the suit being the attempt to trespass made by the third respondent herein in the month of July, 1998. It is also the case of the

respondents 1 and 2 that since they are residing far away from the suit property and since the petitioner and the other respondents are residing near

the suit property they would grab the land, Exparte interim injunction was asked in I.A.No.15598 of 1998 and the same was granted. Thereafter,

according to the petitioner herein though he was in possession of the property the respondents 1 and 2 committed trespass and demolished the

compound wall which was constructed around survey No.149 and the extent of 16 cents in survey No.150. So, the petitioner filed an application

for appointment of Advocate Commissioner. An Advocate Commissioner was appointed and he filed his report. The interim order was being

extended from time to time without recording reasons, though the petitioner had filed his counter and opposed the grant of injunction. So the

petitioner was constrained to file C.R.P.No.3530 of 1998 under Article 227 of the Constitution of India. This court came to the conclusion that the

ad-interim injunction was extended without following the provisions of Order 39, Rule 3(a), C.P.C. The learned Judge also commented about the

conduct of the respondents 1 and 2 in approaching the Court by filing the suit for bare injunction without disclosing that there was an earlier suit

and it was pending. Pursuant to the directions of this court in the above civil revision petition, the Trial Court took up the interlocutory application

and after hearing both parties came to the conclusion that the respondents 1 and 2 were not entitled to the order of injunction having suppressed

the pendency of the earlier suit and also held in favour of the petitioner on the ground of prima facie case and balance of convenience.

Against this, the respondents 1 and 2 filed C.M.A.No.42 of 1999. In this appeal the case of the respondents 1 and 2 is that the reference to the

earlier suit is irrelevant, since according to them, immediately after filing of the suit they had come to know that the third respondent had already

died and they had also filed a petition to delete the other defendants since ""they are no where in the picture."" The other statement in the affidavit

filed in the civil miscellaneous petition for interim injunction pending the civil miscellaneous appeal is that now the only person is Mr.S.

Ramaswamy, the petitioner herein and that they were entitled to get injunction. Interim injunction was granted by the Appellate Court and

thereafter counter was filed by the petitioner herein. In the counter he had stated that in spite of lodging caveat, the respondents 1 and 2 had

moved an interim application without notice to the petitioner or his counsel and the averments made by the respondents 1 and 2 were also denied.

The learned III Additional City Civil Judge who heard the appeal came to the conclusion that the respondents 1 and 2 are entitled to injunction.

Against this the present civil revision petition has been filed.

Mr. Satish Parasaran, learned counsel for the petitioner submitted that here was a party who had come to court with unclean hands having

suppressed the earlier suit. He also submitted that the respondents 1 and 2 had not made out prima fade case and the balance of convenience was

also not in their favour. According to the learned counsel, the petitioner and before him his predecessors in title had been in possession of the suit

property. The petitioner and three others had purchased survey No.149 and the 16 cents namely the suit property in survey No.150 by four sale

deeds which were marked as Exs-B6, B19, B20 and B21, all dated 12.3.1997; each of them purchasing an equal share in the total extent.

Learned counsel submitted no sane man would purchase a property which is landlocked and that the very fact that four persons purchased the suit

property in 1997 would show that on that date the petitioner''s predecessors in title were using the 16 cents to reach the Poonamallee High Road

as a matter of right. To grant an injunction pending dispute would result in the property belonging to the petitioner being land locked without any

access to the main road and therefore, the balance of convenience was obviously not in favour of granting injunction. The learned counsel also

submitted that the third respondent R. Dayalan was dead even before the date of the suit and therefore, this was also a material fact and that

should be borne in mind while granting the equitable remedy of injunction. He also submitted that the learned Judge who disposed of the civil

revision petition under Article 227 of the Constitution of India had come to certain conclusions regarding the entitlement of the respondents 1 and 2

to the suit property, these findings had become final since they were not challenged by the respondents 1 and 2. He also referred to the fact that

the respondents 1 and 2 chose not to serve notice on civil miscellaneous appeal though caveat had been filed. He referred to decisions in Rev.

Noble Gambeeran 2. the Executive Committee of C.S.I., Vellore Diocese rep. by Hon. Secretary Y. William, I/A, Officers Line, Vellore 3. Rt.

Tev. R.T. Baskaran, Bishop in Vellore C.S.I., I/A, Officers'' Line, Vellore, Peter P. Ponnan for himself and as representative of members of CSI

Christian Community, 1999 (1) L.W. 302, E.K. Palanisamy Vs. A.M. Murugesan and others, Ranipet Municipality rep. but its Commissioner &

Special Officer, Ranipet, 1997 (2) L.W. 761. Therefore, he submitted that the injunction should be vacated.

Mrs. Hema Sampath, learned counsel appearing on behalf of the counsel for respondents submitted that the petitioner can only resist the case in

so far as his four cents are concerned. Since the other three predecessors have not come forward to resist the injunction, he cannot be heard to

speak on their behalf. She also submitted that the findings of the learned Judge in C.R.P.No.3530 of 1998 should not be allowed to influence the

later proceedings since the learned Judge had directed the court below to consider the interim application on merits. Therefore, according to the

learned counsel, it was open to the civil courts to come to an independent decision uninfluenced by the findings rendered by the learned Judge. She

also pointed out to the Advocate Commissioner''s Report, where the Advocate Commissioner has given his opinion that there was no evidence of

any wall being demolished as alleged by the petitioner. As far as the existing wall is concerned which was alleged to have been put by the

respondents 1 and 2 in a hurry, the Advocate Commissioner gave his opinion that the wall would have been laid atleast three months prior to the

grant of interim injunction. Therefore, this report proved the case of the petitioner to be false. The learned counsel also submitted that the Advocate

Commissioner also referred to the fact that about 7 lorries were standing in the suit property which were stated to be connected to the business of

the respondents 1 and 2. According to the learned counsel for the respondents, this Advocate Commissioner was appointed at the behest of the

petitioner and had filed a report which clearly demonstrated that suit property was in the possession of the respondents 1 and 2. So this would only

mean that the respondents 1 and 2 have proved possession on the date of the suit and therefore, entitled to injunction. The learned counsel also

submitted that in 1970; the father of respondents 1 and 2 had obtained a decree for permanent injunction against one Rathnam, who is the father of

the defendants 2 and 3 in O.S.No.1973 of 1996 and who are also the predecessors of title of the petitioner herein. An ex parte decree had been

obtained against the attempt of the said Rathnam. Now, his descendants and successors are attempting to grab the suit property continuously.

When the father of the respondents 1 and 2 had asserted his right over the suit property as early as 1969, it only shows that possession was with

him and thereafter, with respondents 1 and 2 and this possession must be protected.

The parties have marked numerous documents before the Trial Court. Nine documents were marked on behalf of the respondents 1 and 2 and

22 documents were marked on behalf of the petitioner. According to the respondents 1 and 2, the suit property belong to one Doraisamy Naidu

who is their father and who had inherited the property under a family arrangement between himself and his brother Aiyavoo Naidu. It is also stated

that it was purchased by the father of respondents 1 and 2 on 5.9.1934 from one Venkatapathy Naidu. The Ex-A1 shows that one Venkatapathy

Naidu, Ramakrishna Naidu and Nandagopal Naidu and Varadappa Naidu sold this property to Aiyavoo Naidu. This Aiyavoo Naidu appears to

be the brother of the father of respondents 1 and 2. The document does not show as claimed by the respondents 1 and 2 that Doraisamy Naidu,

had purchased the property on 5.9.1934. On the other hand, the vendor in the documents dated 5.9.1934 is Aiyavoo Naidu. The family

arrangement referred was not shown then. It is for this reason that the learned Judge while disposing of the C.R.P.No.3530 of 1998 found that the

case that Doraisamy Naidu purchased the property on 5.9.1934 is not correct and that the two sources of title referred to namely inheritance

under family arrangement, and title under a sale deed 5.9.1934 are irreconcilable. Apart from the ex parte decree in O.S.No.530 of 1969,

thereafter the respondents had also marked a ""kurchit"" dated 30.9.1997 wherein Aiyavoo Naidu and the father of respondents 1 and 2 had

entered into a kind of family arrangement in respect of various properties including the suit property and also some Urban Land Tax Payment

Receipt, Adangal Receipts. On the other hand the respondents traced their title to one Singarammal. G. Varadappa Naidu one of the vendors in

Ex-A1 appears to have sold the suit property to one G.C. Nandagopal. Mr. G.C. Nandagopal, had sold it to Singarammal and the sale deed is

marked as Ex-B1. Subsequently, Singarammal had settled the property to her sons who are the defendants in the earlier suit and therefore, they in

turn had conveyed the suit property to the petitioners and three others. Section 7 notice under Tamil Nadu Act 3 of 1905 has been filed which

shows the possession of Singarammal over the 16 cents. These are marked as Exs-B3, B4 and B5 for the years 1976, 1977, 1983 etc. The other

documents marked are police complaints given by the petitioner and the three other predecessors complaining of the interference by the

respondents 1 and 2 in these 16 cents. Another relevant document is the order passed in the writ appeal filed by the respondents 1 and 2 herein

against the petitioner, Collector of Chennai, Inspector of Police. According to the learned counsel for the petitioner the suit property is actually

Government land and by this order the first Bench of this Court had observed that the company was free to take appropriate action in respect of

the suit property if the land is a poramboke land. As regards the relevance of the Commissioner''s Report, the Trial Court had said that it will not

be possible to come to the conclusion of either party''s possession on the basis of the Advocate Commissioner''s Report without examining the

Advocate Commissioner during the course of the trial. The Trial Court had refused to grant injunction only on the basis of the conduct of the

parties, namely the material suppression of facts by the respondents 1 and 2. For some reason, the Appellate Court seemed to think that the main

issue was that the second suit would be hit by the provisions of Order 2, Rule 2, C.P.C. and came to the conclusion that it would not be hit by the

said provision and without further also stated that the balance of convenience and prima facie case were with the respondents 1 and 2.

The main thrust of the petitioner''s rase is the right of the respondents to knock at the door of equity in view of their conduct. They had filed a

suit for bare injunction in the suit property in 1996. They did not succeed in getting interim injunction. In 1998, they filed a suit again for the same

relief and the cause of action is this:

Again on 24.9.1998, the defendants 2 to 5 with the help of the first defendant tried to demolish the compound wall and enter into the suit

property.

Then again, it is stated,

the first respondent who is the son of Rathnam and other defendant wanted to grab the suit property .. neither the first defendant nor the

defendants 2 to 5 have right, title or interest over the suit property .. The cause of action for filing the suit arose at Chennai in the month of July

when the first defendant made an attempt to trespass in the suit property.

Therefore, it is the categoric case of the respondents 1 and 2 that it is the first defendant who had instigated the trespass. The first defendant is

none other than the third respondent, Dayalan. At the time of arguments the learned counsel for the petitioner submitted that Dayalan had died on

26.10.1997 and as proof thereto the death certificate was produced. This shows that the case of the respondents 1 and 2 that Dayalan attempted

to trespass in July, 1998 is false. To this the learned counsel for the respondent submitted that a petition had been filed on 21.10.1998,

S.R.No.36907 wherein it was stated that the name was wrongly noted as Dayalan, in the plaint, but Dayalan has passed away and therefore, in

place of the name Dayalan, the word Sundararajan should be added. Therefore, the learned counsel submitted that the mention of Dayalan was a

mere error which was sought to be rectified immediately. But we must remember that this petition is yet to be numbered. Another interim

application appears to have been filed on 27.10.1998 in which the respondents 1 and 2 seek to implead the other three purchasers who had

purchased the suit property alongwith the petitioner. In this there is no mention of the said Dayalan being dead on the other hand in the case title

Dayalan son of Rathnam is shown as live person and it is also the averment therein that the respondents had filed the suit for interim injunction

against Dayalan and the other respondents. In 1999, when the Trial Court dismissed the injunction application passing of the petitioner had filed an

application u/s 144, C.P.C., for handing over peaceful and vacant possession of the suit property. In this there is a specific allegation of abuse of

judicial process of suppression of truth and suggestion of falsehood and there is a categoric allegation made against the respondents 1 and 2 as

follows:

The fact that the plaint in the instant suit was nothing but a bundle of lies is evident even from the fact that the very first defendant mentioned in the

suit, namely, R. Dayalan, who is alleged to have illegally interfered alongwith other defendants in respect of the suit property, had died even before

the institution of the suit.

In the counter filed to this application while referring to the allegations made in paragraph No.8, the respondents 1 and 2 have merely stated that

the present suit is filed by the plaintiff for a different cause of action. Therefore, there is no suppression of suit. There is absolutely no mention of the

petition filed to amend the cause title nor any explanation is given as to how Dayalan was shown as a live person committing trespass when he was

already dead. Similarly, in the civil miscellaneous petition for interim injunction filed by the respondents 1 and 2 the following sentence is found:

I submit that immediately after filing the suit, we came to know that Dayalan the 1st respondent herein had already died. Immediately we have filed

a petition to delete the array of parties as well as the other persons who are the defendants in the earlier suits are concerned. They are nowhere in

the picture. Now the only person is Mr. Ramaswamy and we are entitled to get injunction against him. So the reference to the earlier suits are

wholly irrelevant.

This only makes the position worse. Therefore, according to the averments made by the respondents 1 and 2, in this C.M.P. on the date of the

suit, Dayalan was dead and the other three defendants were nowhere in the picture and the only person is the petitioner. If the other three persons

were nowhere in the picture there must be some explanation forthcoming as to why the respondents 1 and 2 had alleged that they had also

committed trespass alongwith the ''dead person''.

The one explanation that comes irresistibly to the mind is, the litigation itself is sham.

When we consider the balance of convenience and the irreparable injury in this case there has been no denial of the averments made by the

petitioner and their predecessors in title that if injunction was granted in respect of 16 cents, the property that they had purchased in survey

No.149 would become landlocked and as described graphically in the first counter filed by the predecessors in title of the petitioner in the earlier

suit one has to land by helicopter. To subject the petitioner to this predicament pending disposal of the suit will without a doubt cause irreparable

injury to the petitioner and the balance of convenience also follows suit. Therefore, this is another ground why injunction should not be granted in

favour of respondents 1 and 2.

Now we come to the affidavit filed by the respondents 1 and 2 in their injunction petition, where it is stated that they have grown trees in the

vacant land and a watchman is living. In the plaint they have stated that they live far away and since the petitioner and other defendant residing near

the suit property, they intend to grab the land. I have already found that the case of the respondents 1 and 2 regarding demolition of the compound

wall by the first defendant on 24.9.1998 is itself suspect, since the first defendant was already dead on that day. The Advocate Commissioner,

however, finds a wall which bars the petitioner from reaching the suit property and several lorries allegedly used for the business of respondents 1

and 2 being parked in the suit property. It is the complaint of the petitioner that the status quo was changed by the respondent 1 and 2 after they

obtain the interim order of injunction which was set aside in the civil revision petition under Article 227 of the Constitution of India. Interim

injunction is granted under Order 39 C.P.C. to preserve the subject matter of the suit in status quo for the time being. The status quo should mean

and can only mean the situation that prevailed at the time of institution of the suit. Using the order of injunction no party can be allowed to alter the

state of affairs to suit his convenience and to create a situation as if this was the status quo that prevailed on the date of institution of the suit. The

decisions are numerous of the Supreme Court and this court, where it has been stated that courts are bound to nullify any undeserved or unfair

advantage gained by a party invoking its jurisdiction. Since I have already stated that the institution of the suit is based on a cause of action which

appears to be sham, the respondents 1 and 2 do not deserve to have an injunction in their favour. Therefore, regardless of the use they may make

of the property which they claim to be is in their possession, they are bound to keep free the 16 cents which is the subject matter of the suit

property so as to provide access to the property in survey No.149.

The decisions relied on by the learned counsel for the petitioner relate to abuse of process of law which is dealt with in detail by the learned

Judge in Ranipet Municipality rep. by its Commissioner & Special Officer, Ranipet, 1997 (2) L.W. 761. The first instance of abuse of process of

law listed in the said case may very well apply to the procedure adopted by the respondent 1 and 2 which is gaining an unfair advantage by the use

of the rule of procedure.

In that case also the learned Judge said,

When the very initiation of legal proceedings itself is an abuse of process, it is the duty of the court to see that the respondent did not take

advantage of that litigation and put a Local Authority to further hardship.

(2) In the decision reported in E.K. Palanisamy Vs. A.M. Murugesan and others, the learned Judge dealt with the question to what is status quo.

That also was case similar to this one and the learned Judge held that since the petitioner was in possession of the properties, the injunction

application filed by the plaintiff cannot be maintained.

(3) In Rev. Noble Gambeeran 2, The Executive Committee of C.S.I., Vellore Diocese rep. by Hon. Secretary Y. William I/A, Officers Line,

Vellore 3. Rt. Tev. R.T. Baskaran, Bishop in Vellore C.S.I., I/A, Officers'' Line, Vellore, Peter P. Ponnan for himself and as representative of

members of CSI Christian Community, 1999 (1) L.W. 302, dealt with the case where persons indulged in filing one suit alter another and when

they did not get interim relief they attempted to file another suit for the same purpose. The learned Judge held that since the plaintiff is not a honest

litigant, the court process should not be allowed to achieve the oblique purpose.

The questions of prima facie case, balance of convenience and irreparable injury are all answered in favour of the petitioner. Above all the

respondent has demonstrated that they have used (abused?) the process of law to achieve their ends and certainly such persons cannot be

protected by an order of injunction.

For the aforesaid reasons, the civil revision petition is allowed, the interim injunction stands vacated. The respondents 1 and 2 shall pay costs

of a sum of Rs.3000 to the petitioner.