Saraswathy and another vs Ramaiya Nadar and another

K. Sampath, J.—The Civil Revision Petition has been filed against the order of Principal District Judge, Nagapattinam, in C.M.A. No. 3/96

confirming the order of the learned District Munsif, Thiruthuraipoondi, in I.A. No. 1161/95 in O.S. No. 249/95. The facts giving rise to the present

Civil Revision Petition are as follows:

One Ganesa Nadar had six sons. The eldest son Ramaiah is the plaintiff in the suit and the respondent in the Civil Revision Petition. The petitioners

are respectively the first and the second defendants in the suit being the widow and son of Sarangapani, brother of the respondent. The case of the

respondent in the suit is as follows:

Ganesa Nadar died intestate. The lands were divided. Only the suit building was kept in common. This was pursuant to an oral partition. The

respondent/plaintiff was in management, realising rent, paying taxes, etc. There is a vacant site between two portions of the suit building. The

revision petitioners/defendants either jointly or individually have entered into an agreement with the third defendant in the suit one Panneerselvam

and the second respondent in the Civil Revision Petition for sale of the suit property. The Revision Petitioners have no right to sell the suit property.

The suit has therefore been filed for an injunction restraining, the Revision Petitioners from entering into any agreement or selling or otherwise

alienating the property.

The Revision Petitioners are resisting the suit contending inter alia as follows:

The plaintiff/first respondent has filed the suit with ulterior motive to extract money. It is false to say that the building and house sites had not been

divided. The plaintiff himself has sold the building to the Revision Petitioners and the need to dispose of the property is for celebrating the marriage

of Sarangapani''s daughter.

Pending suit the first respondent applied for temporary injunction, which was granted by the first Court and the appeal filed by the Revision

Petitioners was dismissed. Aggrieved the present Civil Revision Petition has been filed.

Mr. V.K. Vijayaraghavan, learned counsel for the Revision Petitioners, vehemently submitted that the suit itself is not maintainable, that this kind

of suit is unheard of and if at all, the plaintiff has a remedy only by way of a suit for partition. It is the submission of the learned counsel that when

the main relief itself cannot be grunted, the interim relief cannot be equally granted.

In support of his submissions the learned counsel relied on a number of decisions:

(1) K.P.M. Aboobucker Vs. K. Kunhamoo and Others,

(2) R. Venkataswami Naidu v. M/s. South India Viscose Ltd. (100 L.W. 801 = 1985-II MLJ 277)

The learned counsel also submitted that when the Court had no jurisdiction, this Court can exercise suo motu powers and grant relief. In support

he relied on the judgment of this Court in Rasu v. Kokilam and another (1994 TLNJ 324) and Nicco Corporation Ltd. v. Cathar Vessels Ltd. and

another (1997-3- L.W. 599).

Per contra, Mr. Srinath Sridevan, learned counsel for the respondents, contended that the suit was perfectly maintainable and in support of his

stand, he relied on the following decisions:

(1) Nagam Siva Reddy Vs. B. Nazamuddin Saheb,

(2) Rukmani and Others Vs. H.N. Thirumalai Chettiar, and

(3) V. Devarajan Vs. R. Purushothaman and three others,

Two Courts have concurrently held that the first respondent had made out a case for injunction pending suit. No doubt, the suit itself is one for

permanent injunction and the permanent injunction is prayed for against co-owners.

In Nagam Siva Reddy v. Hasamuddin Saheb it was held that suit for permanent injunction was a proper remedy by a co-owner against decree-

holder purchaser of property in Court sale taking a stand that the property was the separate and exclusive property of the judgment debtor and not

of other co-owners. Prima facie this decision answers the point raised by the learned counsel for the Revision Petitioners.

In Rukmani and Others Vs. H.N. Thirumalai Chettiar, a Division Bench of this Court held that a co-sharer cannot be allowed to cause prejudice

to the other co-sharers by putting up a substantial construction during the pendency of a suit for partition.

In Devarajan v. Purushothaman and three others (1998-1 CTC 22) Abdul Wahab, J. has held that injunction can be granted against co-owner

in cases when material and substantial injury is likely to be caused. Applying the above principle, it has to be held that when both the Courts below

have found that if injunction is not granted substantial injury would result to the first respondent, it is not possible to take a different view. No

doubt, the various decisions cited by the learned counsel for the Revision Petitioners say that when the main relief itself cannot be granted, no

interim relief could be granted and in such cases, the High Court can exercise suo motu powers and grant suitable relief to the parties. There can be

absolutely no quarrel over the proposition. But, so far as the present case is concerned, as already held the first respondent has made out a prima

facie case for grant of injunction pending suit and sitting in revision u/s 115 of the Code of Civil Procedure, it cannot be said that there is any error

of jurisdiction involved in the relief granted by the Courts below. The Civil Revision Petition has therefore, to fail and accordingly it is dismissed.

However, the trial Court, viz. the District Munsif''s Court, Thiruthuraipoondi, is directed to dispose of the suit within a period of three months from

the date of receipt of the order in the Civil Revision Petition. There will, however, he no order as to costs. Consequently, the miscellaneous petition

C.M.P. No. 12549/96 is also dismissed.