Tmt. S. Devi and others v. Adilakshmi Animal Dharma Sathiram, Thirukkalikundram represented by its Present Trustee (Santhathis) Thiru P. Srinivasan and others
2004-11-23
S.ASHOK KUMAR
body2004
DigiLaw.ai
ORDER: This civil revision petition has been filed to set aside the order dated 3.6.2004 granting ex parte injunction in I.A.No.998 of 2004 in O.S.No.637 of 2004 on the file of the Subordinate Judge of Chengalpattu. 2. The brief facts of the case are as follows: The revision petitioners are defendants 4 to 6 in O.S.No.637 of 2004 on the file of the Subordinate Judge at Chengalpattu. The suit has been filed by the Santhathis of M/s.Adilakshmi Ammal Hereditary Trust established in the year 1890. Adilakshmi Ammal wife of Rathinam Mudaliar created the Adilakshmi Ammal Dharma Sathiram under a registered Will dated 2.10.1900. As per the said Will, she appointed her only son W.B.Devaraja Mudaliar as the Trustee and thereafter the “Santhathis” were to be the hereditary trustees. The said Devaraja Mudaliar had a daughter, V.G.Padmavathi Ammal who was married to one Gajaraj Mudaliar. Padmanavathi Ammal predeceased her father Devaraja Mudaliar on 17.7.1943. Through Padmavathi Ammal, Gajaraj Mudaliar had a daughter, Kamalabai Ammal and son V.G.Srinivasan. Kamalabai Ammal was married to one Parthasarathy. Kamalabai Ammal and Parthasarathy had four children namely, P.Srinivasan, P.Saraswathi, P.Shyamaldharan and P.Vijayalakshmi, who are the plaintiffs in the suit. Gajaraj Mudaliar had married one Dhanalakshmi as second wife. Through Dhanalakshmi, Gajaraj Mudaliar had begotten V.G.Bhoopathy and V.G.Ramaswamy, defendants 1 and 2 apart from three daughters. The said defendants 1 and 2 have created sale deeds in the names of S.Devi, M.Mangalam, Uma Maheswari, defendants 3 to 6 in respect of the properties belonging to the Adilakshmi Ammal Dharma, Sathiram. The alienees, particularly revision petitioners/defendants 4 to 6, illegally demolished a tiled house and also put up construction. To prevent the alienees from putting up further constructions, the ‘Santhathis’ of Kamalabai Ammal and Parthasarathy filed the suit in O.S.No.637 of 2004 on the file of the Subordinate Judge, Chengalpattu which was later renumbered as O.S.No.81 of 2004. The suit was filed claiming the reliefs in respect of three (Schedule mentioned properties viz., (i) to deliver vacant possession of B and C Schedule properties, (ii) for grant of permanent injunction restraining the defendants 4 to 6 from in any way putting up construction in respect of a portion in “C” Schedule property, and (iii) for future damages of use and occupation at Rs.1,000 per month in respect of B Schedule property. 3.
3. In the said suit the plaintiffs filed I.A.No.1295 of 2004 under O.39, Rules 1 and 2 of the Code of Civil Procedure for ad interim injunction and the trial Court granted an order of ad interim injunction on 3.6.2004. Aggrieved against the said order, this civil revision petition has been filed under Art.227 of the Constitution of India. 4. The main grounds raised in the revision are: (ii) No sanction was obtained as required under Sec.92 of C.P.C., for instituting the suit, (ii) O.39, Rule 3-A has not been complied with: (iii) Order of this Court in Tr.C.M.P.No.5873 to 5875 of 2004 are against the grant of interim injunction, and (iv) The order of the lower Court is hit by the principles of res judicata. 5. The contention of the respondents/plaintiffs who resist this revision are: (i) As required under Sec.92 of the Code of Civil Procedure, separate application was filed for sanction and permission was obtained and the suit has been lawfully instituted; (ii) Even assuming here is non compliance of O.39, Rule 3-A, CPC, the remedy for the petitioners is to file an appeal, (iii) the order in Tr.C.M.P.Nos.5875 of 2004 is not an impediment for the Court to grant an order of ad interim injunction in the present suit since the High Court has only made an observation that constructions put up by the petitioners/ alienees will be subject to the result of the suits filed by the transfer petitioners therein; (iv) The question of res judicata does not arise since the suit filed by the power of attorney of the mother of the respondent/plaintiffs will not have any bearing over the present suit since the respective causes of action are entirely different. Unless the matter is finally heard and decided, it cannot operate as res judicata. No such suit as alleged by the petitioners/alienees is pending, and (v) The balance of convenience rests with the plaintiffs. 6. The point for consideration is: Whether the civil revision petition is maintainable at this stage? 7. This revision has been filed against the grant of ad interim injunction by the learned Subordinate Judge of Chengalpattu. The revision petitioners are defendants 4 to 6 in the suit. They have claimed to have purchased the properties under registered sale deeds said to have been executed by the defendants 1 and 12, who are not the Santhathis of Devaraja Mudaliar.
The revision petitioners are defendants 4 to 6 in the suit. They have claimed to have purchased the properties under registered sale deeds said to have been executed by the defendants 1 and 12, who are not the Santhathis of Devaraja Mudaliar. The plaintiffs are none other than the grand children of Gajaraj Mudaliar through his daughter Kamalabai Ammal, who was married to Parthasarathy. According to the plaintiffs as per the Will the properties should not be sold or encumbered in any manner. One Arivudiar Nambi, T.Arumugam, representing themselves to be the members of the general public and ben- eficiaries; of the Trust filed O.S.No.7 of 2003 against the trust and the defendants 1 to 6. We are not aware whether the suit is spending or disposed of. 8. When the plaintiffs i.e., grand children of Gajaraj Mudaliar through his daughter Kamalabai Ammal filed a suit against the two sons of Gajaraj Mudaliar’s second wife and the alienees, respondents 3 to 6, they also filed I.A.No.295 of 2004 under O.39, Rules 1 and 3 of C.P.C., for grant of ad interim injunction and the same was granted by the trial Court on 3.6.2004. The plaintiffs in O.S.No.97 of 2003 filed Transfer C.M.Ps.5673 to 15875 of 2004 to transfer O.S.No.5152 and 5153 of 2004 on the file of the District Munsif Court, Thirukalikundarm to be tried along with O.S.No.97 of 2003 pending on the file of the Principal Subordinate Judge, Chengalpattu and this Court passed a common order wherein this Court has observed as follows: "3. But, however, the learned Advocate for the respondents has stoutly protested that the transfer petitioners are not entitled to have any order of injunction on the ground that the respondents, particularly, respondents 4 to 7 have purchased the properties in 1981 and 2002 and they have also taken possession of the same, demolished the main portion of the suit property and also demolished the other portion and put up construction in the suit property and in the said circumstances any order of injunction would cause unnecessary hardship to them. 4.
4. Taking note of the fact that the respondents 4 to 7 are the purchasers of the suit property demolished the main portion of the suit property and also demolished the other portion of the suit property and put up construction and also continuing construction, it would not be is the interest of justice to prevent them from putting up further construction in the suit property. But, however, it is made clear that any manner of construction that will be put up by the respondents 4 to 7 in the suit property is subject to the result of the suits filed by the transfer petitioners herein." 9. This Court has taken note of the fact that the respondents 3 to 6 have purchased the suit property in the year 1981 and that they want to demolish the suit property and also demolished other portion of the suit property and put construction and continuing construction and has further held that any construction put up by the respondents therein in the suit property will be subject to the result of the suit filed by the transfer petitioners. This order was passed on 29.4.2004. Subsequently these plaintiffs have filed a suit in O.S.No.637 of 2004, which was later renumbered as 81 of 2004 and got interim injunction on 8.6.2004. The plaintiffs in the suit are not the parties in the Tr.C.M.P.No.5873 to 5875 of 2004. The power of attorney of Kamalabai Ammal, Arivudai Nambi is a party in the above transfer C.M.Ps. But the plaintiffs are the ‘santhathis’ of Adilakshmi Ammal as mentioned earlier and they have got a right to initiate the proceedings. 10. The contention of the revision petitioners that no earlier permission was obtained under Sec.92 of the Code of Civil Procedure is not true. The tendency of the suit filed by the power of attorney of the members of the plaintiffs/respondents cannot operate as res judicata, unless the matter is finally, heard and disposed of. Whether the plaintiffs have mandatory provision of 0.39, Rule 3-A, C.P.C., is a matter to be decided on facts by the trial Court and this Court cannot go into a roving enquiry with regard to the compliance of the provision. The remedy of the revision petitioners is to file an appeal, but no appeal has been filed.
Whether the plaintiffs have mandatory provision of 0.39, Rule 3-A, C.P.C., is a matter to be decided on facts by the trial Court and this Court cannot go into a roving enquiry with regard to the compliance of the provision. The remedy of the revision petitioners is to file an appeal, but no appeal has been filed. On the other hand, jurisdiction of this Court has been invoked under Art.227 of the Constitution of India. 11. In A. Venkatasubbiah Naidu v. S.Challappan and others, (2001)1 M.L.J. (S.C.) 75: (2000)7 S.C.C. 696, their Lordships of the Supreme Court have held thus: "Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognised principle which have gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies." 12. In the above circumstances, this civil revision petition is dismissed with a direction to the revision petitioners to approach the trial Court with a petition to vacate the injunction by filing necessary pleadings and documents. In the result, this C.R.P. is dismissed with costs. Consequently connected miscellaneous petitions are closed. The Judgment of the Court was delivered by P.D.Dinakaran, J.: The appellants, who joined in part time B.E. course in the second respondent College, filed writ petitions (W.P.Nos.1042, 801 and 797 of 2004 respectively) for issue of a writ of mandamus to direct the respondents to permit the appellants herein to write the examinations of V and VI Semester as arrears in the examination of VII Semester, and also to permit them to attend the classes for VII Semester Examinations. 2. Concededly, permission was refused to the appellants to write the examinations of V and VI Semester as arrears in the examination of VII Semester as there was shortage in their attendance. 3.
2. Concededly, permission was refused to the appellants to write the examinations of V and VI Semester as arrears in the examination of VII Semester as there was shortage in their attendance. 3. Under such circumstances, the learned Single Judge, while refusing to grant the relief as prayed for, gave liberty to the appellants to approach the authorities concerned and seek permission to sit along with the regular students for the said course, and dismissed the writ petitions (W.P.Nos.1042, 801 and 797 of 2004 respectively) by order dated 28.9.2004, which is challenged in these writ appeals. 4. It is trite law that in a matter touching either the discipline or the administration of the internal affairs of a University, Courts should be not reluctant to interfere, vide Varanaseya Sanskari Vishwavidyalaya v. Rajkishore Tripathi (Dr.), (1977)1 S.C.C. 279 . 5. Taking note of the fact that the appellants have already completed four semesters and the learned single Judge has rightly given liberty to the appellants to approach the authorities concerned, we find it improbable to give any further direction to the authorities concerned.