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1999 DIGILAW 730 (MAD)

T. Palanisamy Gounder v. Sankara Ramanathan

1999-07-29

P.SHANMUGAM

body1999
Judgment :- Third defendant in suit O.S. No. 671 of 1998 and third respondent in I.A. No. 1202 of 1998, on the file of the Sub Judge, Erode is the revision petitioner. 2. Briefly stated the facts are as follows: The revision petitioner had purchased a building at No. D. No. 28, Pon Veethi, Erode on 15.7.1988 from one Thiru S. Gowthaman, fifth respondent. The said property was under the tenancy of one Thiru A.V.G. Ponnuswamy Chettiar. After the purchase, a request was made for the attornment of tenancy. Without conceding, the tenant along with his three sons as also a partnership firm, consisting of himself and his sons presented a plaint in an Original Suit on 11-8-1998, on the file of Subordinate Judge, Erode against three defendants viz., the petitioners vendor, petitioner and one Mandi Venkata Naicker. Dharman under Section 92 of Code of Civil Procedure. They had prayed for a declaration and permanent injunction to declare that the alienation of plaint schedule properties is null and void and not binding on Mandi Venkata Naicker Dharmam and to frame a proper scheme for the enforcement and smooth running of the trust and for a permanent injunction from interference. The Sub-Court numbered the suit and has taken it on the file as O.S. No. 338 of 1988, after granting leave under Section 92 of the Code of Civil Procedure in I.A. No. 496 of 1988 on 11.8.1988. The revision petitioner and his vendor applied to the Sub-Court to set aside the said order granting leave and to dismiss the same. In the meanwhile, the plaintiffs in the suit made an endorsement, requesting for the return of the plaint with liberty to give notice and to proceed. Accordingly, the plaint was returned on 2.12.1988. 3. On 5.12.1988, the petitioner initiated proceedings to vacate the tenant Thiru A.V.G. Ponnusamy Chettiar by issuing a legal notice and thereafter filing an Application in R.O.C. No. 5 of 1989, before the Rent Controller, Erode for eviction. The plaintiff in the aborted suit, O.S. No. 338 of 1988 along with two more individuals, one R. Sankararamanathan and another C. Balasubramanian presented a suit before the Sub-Court, Erode praying for almost” the same relief for a declaration and for certain direct ions in reference to the same property. The plaintiff in the aborted suit, O.S. No. 338 of 1988 along with two more individuals, one R. Sankararamanathan and another C. Balasubramanian presented a suit before the Sub-Court, Erode praying for almost” the same relief for a declaration and for certain direct ions in reference to the same property. The Sub Court granted the leave under Section 92 of Code of Civil Procedure in I.A. No. 1024, of 1988 to institute that suit on 21.9.1990, which thereupon came to be numbered as O.S. No. 539 of 1990. As against granting of leave the petitioner herein preferred a Civil Revision Petition, C.R.P. No. 3368 of 1990 before this Court. The revision was allowed on 23.8.1991. The Special Leave Petition filed against this order was dismissed by the Supreme Court on 23.8.199 6. While the Civil Revision Petition was pending the Rent Control proceedings initiated by the petitioner were taken up. On 4.11.1991, the. Rent Controller, Erode allowed the R.C.O.P. No. 5 of 1989 and ordered eviction of the tenant, as prayed for. The said eviction order was confirmed by this Court in Civil Revision Petition No. 1082 of 1994, dated 17.11.1998. After pronouncing the Judgment in the said Civil Revision Petition, this Court at the request of the tenants granted six months’ time to them to vacate the premises on condition that the respondent therein should file an affidavit of undertaking. While so, the first respondent herein who was the sixth plaintiff in the earlier suit O.S. No. 539 of 1990 filed another suit before Sub-Court Erode, O.S. No. 671 of 1998 and also filed an Interlocutory Application No. 1202 of 1998 and obtained an interim injunction, restraining the petitioner herein and his vendor not to take any further action in pursuance of the sale deed, dated 15.7.1988, in other words not to execute the eviction order against the tenant. 4. The present Civil Revision Petition is filed to set aside the orders passed by the Court below in the said Interlocutory Application as well as to dismiss the suit. 5. Learned senior counsel, Mr. Gopalaratnam, appearing for the revision petitioner submitted that the respondents have wilfully suppressed all the earlier proceedings at the time of filing of the later suit and that therefore, the filing of the present suit by the respondents is only an abuse of process of Court. 5. Learned senior counsel, Mr. Gopalaratnam, appearing for the revision petitioner submitted that the respondents have wilfully suppressed all the earlier proceedings at the time of filing of the later suit and that therefore, the filing of the present suit by the respondents is only an abuse of process of Court. The respondents, claiming to be the worshippers have no right to interfere or in any manner to precipitate (sic) with the possession of the alleged trust, especially when the allegation in the plaint itself is that there was in existence a trustee. If the sale was alleged to be voidable it could be avoided only by a person competent to avoid the same and in the absence of even an averment as to any avoidance by any one at any point of time in the body of the plaint, the same was not at all maintainable. Excepting such plaint averment no suit by an outsider can lie, in which the prayer is directed against the trustee. According to learned counsel no grounds are made out for grant of the interim order and the Court below has failed to comply with the requirements of Order 39 Rule 3 of Code of Civil Procedure, in granting the order. 6. On the other hand, Mr. S.V. Jayaraman, learned senior counsel for the respondents fairly submitted that the interim order granted by the Court below cannot be sustained, as it was made in violation of the provisions of Order 39 Rule 3 of Code of Civil Procedure. However, learned counsel for the respondents submits that the suit is not liable to be dismissed by invoking the extraordinary Jurisdiction under Article 227 of the Constitution of India. It is always open to the petitioner to raise the maintainability of the suit at the time of trial. According to him, there are sufficient grounds and averments to sustain the relief sought for in the suit and it is beyond the scope of this Court to go into that question at thus stage. It is further submitted that the finding of this Court in Civil Revision Petition No. 3268 of 1990 was that the first defendant is the Religious and Charitable Endowment Trust within the meaning of Tamil Nadu Hindu Religious and Charitable Endowment Act and that therefore, the suit is maintainable. 7. It is further submitted that the finding of this Court in Civil Revision Petition No. 3268 of 1990 was that the first defendant is the Religious and Charitable Endowment Trust within the meaning of Tamil Nadu Hindu Religious and Charitable Endowment Act and that therefore, the suit is maintainable. 7. I have heard the counsel appearing on either side and considered the matter carefully. 8. It is seen that the first respondent, Thiru, Sankara Ramanathan was the sixth plaintiff in O.S. No. 539 of 1990 with reference to the same property. The prayer in the said suit was for a declaration that the alienation by the vendor Gowthaman to the petitioner herein is void, to frame a scheme for running the trust, to appoint a fit person and to restore the suit property to the trust (while the relief for permanent: injunction was prayed in O.S. No. 339 of 1998 the same was omitted in O.S. No. 539 of 1990). In Civil Revision Petition No. 3368 of 1990, Srinivasan, J (as he then was) dismissed the suit. Consequent on the dismissal of Special Leave, the Supreme Court confirmed the order in S.L.P. No. 17529 of 1991. Thiru Sankara Ramanathan, who had sworn to an affidavit in the Application in I.A. No. 1202 of 1998 in O.S. No. 671 of 1998 was a party in C.R.P. No. 3368 of 1990 as well as in S.L.P. No. 17529 of 1991. The proximity in dates viz., on 17.11.1998 when the C.R.P. No. 4082 of 1994 was allowed directing eviction and 4.12.1998, the date of filing O.S. No. 1082 of 1994 and obtaining injunction from eviction would obviously establish that the action of the respondents is at the instance of the tenant, who was directed to be evicted. Thiru Sakara Ramanathan in O.S. No. 539 of 1990 was aware by December, 1989, when he joined his co-plaintiff in filing the petition for the grant of leave to institute O.S. No. 539 of 1990, of the sale deed executed on 15.7.1988 by Gowtham in favour of the petitioner. The first respondent has made no attempt in the plaint in O.S. No. 671 of 1998. Nor has he sworn to an affidavit, explaining his total inaction for the past ten years. 9. The first respondent has made no attempt in the plaint in O.S. No. 671 of 1998. Nor has he sworn to an affidavit, explaining his total inaction for the past ten years. 9. I find much force in the submissions of learned senior counsel for the petitioner that in the plaint allegations, the plaintiffs have not pleaded any personal interest to be protected by the Court. Section 38 of the Specific Relief Act provides the contingencies under which perpetual injunction can be granted. As per this provision, perpetual injunction can be granted to the plaintiff to prevent the breach of an “obligation” existing in his favour. The word “obligation” is defined under Section 2 of th e Specific Relief Act, 1963 as obligation including every duty enforceable by law. As per Section 41 (d) of the said Act, injunction cannot be granted, when the plaintiff has no personal interest in the matter. 10. In paragraph 4 of the plaint in O.S. No. 671 of 1998, it is averred that they are ardent devotees and faithful followers of Lord Sri Vigneswara at Ef. No. 1075/A in front of the Choultry built by the founder of the Trust at Erode. They are the worshippers and beneficiaries of the regular poojas performed thereof. So, they are interested in the trust. The trustee in violation of interdicts of trust deed and contrary to the provisions of law alienated the plaint described the trust property on 15.7.1988 in favour of the third defendant. On the other hand, the case of the petitioner is that the property was purchased only as a private personal property of his vendor Gowtham and did not belong to any trust whereas die plaintiff in O.S. No. 671 of 1988 did not bother to question some twenty three instances of alienations, which were claimed to be the property of the trust and even in reference to this property they were aware of the sale in the year 1988 and waited till eviction was ordered finally by the High Court to move the present suit Though the petitioner has succeeded in the eviction proceedings, ultimately on 17.11.1988 and even after the lapse often years from the date of purchase he is yet to get the fruits of it. During this period he had to fight two civil suits viz., Civil Revision Petition No. 3368 of 1990 and Special Leave Petition. 11. During this period he had to fight two civil suits viz., Civil Revision Petition No. 3368 of 1990 and Special Leave Petition. 11. From these averments, it is obvious that there is no obligation relatable and that could be enforced in law in reference to the property. It is alleged that the trustee is acting in violation and prejudicial to the interest of the trust. According to them the idol was installed in front of the choultry founded by Mandi Venkata Naicker. The main object of the trust was performance of pooja for the idol Sri Vigneswarasamy and other temples. Thus, the plaintiff is a worshipper and outsider to the trust. When the defendant is the trustee, there should be an obligation enforceable in law to maintain a prayer for injunction. Admittedly, the petitioner has no personal interest in the matter, as according to him he is a mere worshippper. 12. The Supreme Court in the case reported in Smt. Pataisbai and others v. Ratanlal (JT 1990 (3) SC 68) held that when no cause of action is disclosed, the trial should not be allowed to be proceeded with since no triable issue has arisen. The Supreme Court has further held in the said decision, as the plaint averments do not disclose a cause of action, die plaint is liable to be rejected under Order 7 Rule 11 C.P.C. Hence, it is not necessary to adopt the technical bourse of directing the trial Court to make the consequential order of rejecting the plaint and instead practical course of making that order in these proceedings should be adopted to avoid any needless delay in conclusion of this litigation. 13. A Division Bench of this Court in Murugesan v. Sri Kundramadai Ayyanar Roil etc. , ( 1997 2 LW 780 ) has held that it is a settled proposition of law that it is the duty of the person invoking the jurisdiction of the Court to make a full and true disclosure of all relevant facts. He should not suppress any fact. If he makes a statement, which is false, or conceals something from the Court, which is relevant, the Court will refuse to go into the matter. He should not suppress any fact. If he makes a statement, which is false, or conceals something from the Court, which is relevant, the Court will refuse to go into the matter. It was further held that the suit as well as the injunction application are liable to be dismissed not only on the ground that there is suppression of material fact but also on the ground that the very basis of the suit does not exist. 14. In the decision reported in T. Arivanandam v. T.V. Satyapal (1997) 4 SCC 467), the Supreme Court has held that if on a mere reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a dear right to sue, it should exercise its power under Order VII Rule 11 of Code of Civil Procedure taking care to see that the grounds mentioned therein are fulfilled. The Trial Court will remind itself of Section 35A of Code of Civil Procedure and take deterrent action, if it is satisfied that the litigation was inspired by vexatious motives for an altogether groundless litigation. Applying the ratio laid down in the aforesaid decision, it is clear that the averments made in the plaint do not disclose the cause of action, besides the plea raised by them are not maintainable. Applying the ratio laid down in the aforesaid decision, it is clear that the averments made in the plaint do not disclose the cause of action, besides the plea raised by them are not maintainable. Therefore the suit and the application are liable to be dismissed for (a) in action of the plaintiff after having been a party to the suit O.S. No. 539 of 1990 and Civil Revision Petition No. 3368 of 1990 and Special Leave Petition Civil No. 17529 of 1991 who were fully aware of the sale deed executed on 15.7.1988; (b) The plaintiff did not disclose the full facts, particularly of the suit O.S. No. 539 of 1990 and the Special Leave Petition candidly and explain the action initiated by the plaintiff either in the plaint or in the affidavit filed in support of the petition for injunction in the present suit; and (c) The fact that the first respondent has admitted that he had no personal interest or obligation in law to be protected, coupled with the failure to avoid the sale all these years will only lead to the irresistible conclusion that the present suit is filed at the instance of his Co-plaintiff/tenant in O.S. No. 539 of 1990 to set at naught the order of eviction, confirmed by this Court and in abuse the process of Court. It is true that under normal circumstances this Court will not entertain any revision against an ad-interim exparte order under which notice is directed to the opposite party. But in cases of gross injustice and patent ‘violation of elementary principles of law this Court will not hesitate to interfere, with such orders. 15. In the above circumstances, the order of ad interim injunction in I.A. No. 1202 of 1998 cannot be sustained and on consideration of the matter further it is clear that the plaint does not disclose any cause of action, but appears to be a sham litigation brought about in collusion with the erstwhile co-plaintiff in O.S. No. 539 of 1990 and tenant to avoid the eviction from the property in the guise of ‘a mere worshipper’. Having come to this conclusion, the plaint and the suit have no survival value and the practical course is to avoid any needless delay in the conclusion of this vexatious litigation. 16. Having come to this conclusion, the plaint and the suit have no survival value and the practical course is to avoid any needless delay in the conclusion of this vexatious litigation. 16. For all the foregoing reasons., this Civil Revision Petition is allowed and the plaint in O.S. No. 671 of 1998, pending on the file of the Sub Court,. Erode is struck off. No costs.