Varalakshmi vs Janakiraman, Ramu @ Kothandaraman and Selvi

M. Venugopal, J.—The civil revision petitioner/appellant/petitioner/plaintiff has filed this revision petition as against the judgment dated

24.6.2008 in C.M.A. No. 6 of 2007 passed by the learned Principal Sub Judge, Tindivanam in confirming the order in I.A. No. 349 of 2007 in

O.S. No. 59 of 2007 dated 26.09.2007 passed by the learned Principal District Munsif cum Judicial Magistrate, Vanur.

The trial Court, while passing order in I.A. No. 349 of 2007 in O.S. No. 59 of 2007 dated 26.09.2007, has inter alia opined that ''contrary to

Ex.P.9-Order dated 12.01.2001 passed in O.P. No. 21 of 2000, the sale deed dated 26.02.2001 namely, Ex.P.5 has come into existence and

the sale deed obtained by Rajamani is not legally valid and resultantly, dismissed the application for interim injunction.''

The First Appellate Authority, in the judgment in C.M.A. No. 6 of 2007, has inter alia observed that whether the statement of the revision

petitioner that she has been in possession of suit property after purchasing the same from Rajamani is true or whether the respondents are in

possession and enjoyment of the suit property through sale deed and also as per oral partition allotment of Kannaya Gounder etc., are all matters

to be gone into at the time of trial of the case as per oral and documentary evidence to be let in by the parties etc. and resultantly, dismissed the

civil miscellaneous appeal thereby confirming the order of trial Court in dismissing the application for interim injunction.

The learned Counsel for the revision petitioner/plaintiff urges that both the Courts have not considered Ex.P.1 to P.31 filed on the side of

revision petitioner and that the revision petitioner has been in possession and enjoyment of the property as per title deeds and revenue records has

not been considered in proper perspective by the Courts below and the fact is that the revision petitioner is in possession of the property as per

patta and therefore, the order passed by both the Courts in dismissing the application and appeal are not correct in the eye of law and therefore,

prays for allowing the civil revision petition.

The learned Counsel for the respondent submits that the suit filed by the revision petitioner is not maintainable and that the trial Court as well as

the Appellate Court has given cogent reasons while dismissing the application and appeal and therefore, the same need not be interfered with by

this Court sitting in revision.

It is not out of place to point out that the revision petitioner in I.A. No. 349 of 2007 in O.S. No. 59 of 2007 has inter alia averred that as per

permission dated 12.01.2001 of the District Judge, Villupuram in O.P. No. 21 of 2000 Dharmaraj has sold the entire extent of suit property in

favour of the revision petitioner''s husband Rajamani as per sale deed dated 26.02.2001, which has been executed for a proper and valid

consideration etc. and that her husband Rajamani has executed a settlement deed dated 13.01.2003 in favour of her and that out of 3.94 cents

purchased by her husband from Dharmaraj, the settlement deed has been executed to an extent of one acre 97 cents and the balance extent has

been sold by her husband in favour of Chinnamoorthy Ammal by means of sale deed dated 31.1.2002 and that she is the daughter of Kalyanee,

sister of Chinnamoorthy Ammal and that she is in possession and enjoyment of the suit property after the settlement deed and therefore, has

prayed for the relief of ad-interim injunction as per Order XXXIX Rule 1 and 2 of Civil Procedure Code.

In the counter filed before the trial Court, it is inter alia averred that the respondent''s father Kannaiya Gounder and respondent''s brothers

Sundaramurthy, Ramu @ Kothandaraman have been become legal owners of the petition mentioned properties and no one has either right or in

enjoyment of the same after the year 1961 and further that the partition arrangement dated 03.01.2000 is not legally valid and a fabricated one and

never at any point of time Kalivarathaperumal has been in enjoyment of 3 acres and 94 cents and moreover, neither Dharmaraj or others have

enjoyed the petition mentioned properties and in fact the revision petitioner has not enjoyed the suit property as per settlement deed and therefore,

she cannot lay any claim over the same and that the sale executed by Dharmaraj in favour of Chinnamoorthy is a false and fabricated one and that

in O.S. No. 39 of 2004 a judgment has been delivered on 12.01.2005 in and by which the petition mentioned property including 3 acres and 94

cents have been shown as ''B'' schedule etc. and therefore, the revision petitioner has no prima facie case and the balance of convenience in her

favour and has prayed for dismissal of the application.

At this stage, this Court pertinently points out that a perusal of the plaint filed by the revision petitioner O.S. No. 59 of 2007 on the file of

District Munsif cum Judicial Magistrate, Vanur indicates that the revision petitioner has sought a relief of declaration of title to the suit property in

her favour and also the relief of permanent injunction.

The learned Counsel for the revision petitioner has referred to Ex.P.1 to P.13, right from kist receipt to sale deed and contends that both the

Courts ought to have granted the relief of interim injunction in favour of the revision petitioner. In support of the contention that the revision

petitioner has made out a case for the grant of relief of interim injunction, the learned Counsel for the revision petitioner cites the decision M.

Gurudas and Others Vs. Rasaranjan and Others, wherein the Honourable Supreme Court has held that ''finding on ''prima facie case'' would be a

finding of fact and that the Court not only must arrive at a conclusion that a case for trial has been made out but would consider the question in

regard to balance of convenience of parties as also irreparable injury which might be suffered by plaintiffs if prayer for injunction is to be refused,

etc.'' He also relies on the decision Surya Dev Rai Vs. Ram Chander Rai and Others, , whereby the Honourable Supreme Court has observed that

''Interlocutory orders passed by Courts subordinate to High Court are open to challenge in and continue to be subject to certiorari and supervisory

jurisdiction of High Court.'' He also draws the attention of this Court to the decision Chokkaiya Chettiar and Ors. v. T. Sivakumaran and Anr.

(2004) 3 M.L.J. 342 wherein this Court has held that ''the High Court can interfere with the orders passed by the Court below under Article 227

of the Constitution, etc.''

It is to be noted that an interim relief which amounts to final relief shall not be granted except where situation of the case so warrants for which

the Court must record reasons, in the considered opinion of this Court. Further, the relief of temporary injunction can be granted only if the person

seeking the same has a concluded right capable of being enforced by means of injunction. Admittedly, a prima facie case is not to be confused with

prima facie title, which has to be established on evidence during trial of the main case. No wonder, an individual seeking a relief of temporary

injunction must satisfy (a) that there is a serious question to be tried in the suit to dispel cloud of doubt in regard to her entitlement; (b) Courts

interference is necessary to protect an individual from an irreparable injury; and (c) the balance of convenience in her favour. As a matter of fact,

the relief under Order XXXIX Rule 1 of CPC is wholly equitable in nature and the applicant should establish that he was not at all at fault.

Be that as it may, on a careful consideration of respective contentions and in view of the rival stand taken by the parties which are a mixed

question of fact and law to be proved by means of oral and documentary evidence besides raising arguable points, this Court, without going into

the merits of the matter on the basis of equity, fair play and even as per law, directs the trial Court viz., the District Munsif cum Judicial Magistrate,

Vanur to dispose of the suit O.S. No. 59 of 2007 within a period of four months from the date of receipt of copy of this order and to report

compliance to this Court. Liberty is given to the parties to raise all factual and legal contentions before the trial Court and the trial Court is directed

to dispose of the suit in accordance with law.

Resultantly, the Civil Revision Petition is disposed of in above terms, leaving the parties to bear their own costs. Consequently, connected

miscellaneous petition is closed.