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2004 DIGILAW 862 (SC)

N. KRISHNANS v. C. R. NARAYANANS

2004-07-29

B.N.SRIKRISHNA, SHIVARAJ V.PATIL

body2004
ORDER 1. THIS APPEAL IS BY THE DEFENDANTS AGGRIEVED BY THE IMPUGNED JUDGMENT PASSED BY THE HIGH COURT IN A SECOND APPEAL. THE PLAINTIFFS FILED A SUIT FOR DECLARATION THAT THE SUIT PROPERTY FORMS PART OF KATTICULAM NEW KANMAI PORAMBOKE LOCATED IN SURVEY NO. 214/1 MEASURING 28 ACRES AND THAT THE ORDER OF THE ASSISTANT SETTLEMENT OFFICER DATED 14-11-1983, WAS ILLEGAL AND D UNENFORCEABLE. THE TRIAL COURT ACCEPTED THE PLEA RAISED ON BEHALF OF THE DEFENDANTS THAT THE SUIT WAS NOT MAINTAINABLE, HAVING REGARD TO SECTION 64-C OF THE TAMIL NADU ESTATES (ABOLITION AND CONVERSION INTO RYOTWARI) ACT, 1948 (FOR SHORT "THE ACT"). THE PLAINTIFFS FILED FIRST APPEAL CHALLENGING THE CORRECTNESS OF THE JUDGMENT AND DECREE PASSED BY THE TRIAL COURT. THE FIRST APPELLATE COURT TOOK A CONTRARY VIEW HOLDING THAT THE SUIT WAS MAINTAINABLE HAVING REGARD TO THE NATURE OF THE RELIEF SOUGHT FOR. THE DEFENDANTS FILED SECOND APPEAL BEFORE THE HIGH COURT CONTENDING THAT THE JUDGMENT AND DECREE PASSED BY THE FIRST APPELLATE COURT WERE AGAINST LAW AND UNSUSTAINABLE. THE HIGH COURT, IN THE SECOND APPEAL, CONSIDERED THE SUBSTANTIAL QUESTION OF LAW AS TO WHETHER THE SUIT FILED IN A REPRESENTATIVE CAPACITY CLAIMING RIGHTS OF IRRIGATION WITHOUT IMPLEADING THE GOVERNMENT WAS NOT MAINTAINABLE AND THE QUESTION RELATING TO THE CLASSIFICATION OF LAND AS RYOTWARI OR OTHERWISE. AS IS EVIDENCE FROM THE IMPUGNED JUDGMENT THE HIGH COURT, FOLLOWING THE TWO EARLIER DECISIONS OF THIS COURT IN STATE OF T.N. V. RAMALINGA SAMIGAL MADAM1 AND R. MANICKA NAICKER V. E. ELUMALAI NAICKER2 UPHELD THE JUDGMENT OF THE FIRST APPELLATE COURT CONCURRING WITH THE VIEW TAKEN BY IT THAT THE SUIT WAS MAINTAINABLE. IN THE IMPUGNED JUDGMENT, IT IS OBSERVED THAT AS LONG AS NO 9 RELIEF WAS SOUGHT FOR AGAINST THE INTEREST OF THE STATE OR THE OFFICERS OF THE STATE, IT WAS ABSOLUTELY NOT NECESSARY OR ESSENTIAL FOR THE PLAINTIFFS TO IMPLEAD THE STATE OR THE AUTHORITIES. THE HIGH COURT ALSO NOTICED THAT IN ALMOST SIMILAR SET OF FACTS IN RAMALINGA SAMIGAL MADAM1 THIS COURT HAS APPROVED THE VIEW OF THE HIGH COURT THAT THE SUIT WAS MAINTAINABLE. 2. THE LEARNED SENIOR COUNSEL FOR THE APPELLANTS TOOK PAINS TO DISTINGUISH THE TWO AFOREMENTIONED DECISIONS OF THIS COURT BY REFERRING TO OTHER DECISIONS. THE HIGH COURT ALSO NOTICED THAT IN ALMOST SIMILAR SET OF FACTS IN RAMALINGA SAMIGAL MADAM1 THIS COURT HAS APPROVED THE VIEW OF THE HIGH COURT THAT THE SUIT WAS MAINTAINABLE. 2. THE LEARNED SENIOR COUNSEL FOR THE APPELLANTS TOOK PAINS TO DISTINGUISH THE TWO AFOREMENTIONED DECISIONS OF THIS COURT BY REFERRING TO OTHER DECISIONS. WHEN THE DECISIONS OF THIS COURT ARE DIRECTLY ON THE POINT DEALING WITH THE SIMILAR SET OF FACTS AND REFERRING TO THE VERY PROVISIONS OF THE ACT, NAMELY, SECTION 64-C. WE DO NOT THINK THAT WE CAN TAKE A DIFFERENT VIEW, MORE SO WHEN A BENCH OF THREE LEARNED JUDGES OF THIS COURT IN SRI-LA-SRI SIVAPRAKASA PANDARA SANNADHI AVARGAL V. T. PARVATHI AMMAL3 REFERRING TO R. MANICKA NAICKER2 HELD THAT THE VIEW TAKEN THEREIN IS A CORRECT VIEW. IN THE CASE OF R. MANICKA NAICKER2. THE CASE OF RAMALINGA SAMIGAL MADAML WAS ALSO RELIED ON. 3. THE LEARNED COUNSEL FOR THE RESPONDENTS MADE SUBMISSIONS SUPPORTING THE IMPUGNED JUDGMENT. 4. HAVING REGARD TO THE AFOREMENTIONED DECISIONS OF THIS COURT DIRECTLY ON THE POINT, ON WHICH RELIANCE WAS PLACED BY THE HIGH COURT TO RENDER THE IMPUGNED JUDGMENT, IT IS NOT POSSIBLE FOR US TO TAKE A DIFFERENT VIEW. THE HIGH COURT WAS RIGHT IN DISMISSING THE SECOND APPEAL FILED BY THE DEFENDANTS, AFFIRMING THE ORDER PASSED BY THE FIRST APPELLATE COURT. UNDER THE CIRCUMSTANCES, THE APPEAL, BEING DEVOID OF ANY MERIT, IS LIABLE TO BE DISMISSED. ACCORDINGLY, IT IS DISMISSED. 5. NO COSTS. 6. AT THIS STAGE, THE LEARNED COUNSEL FOR THE RESPONDENTS POINTED OUT THAT THIS COURT ON 25-9-2000, PASSED THE FOLLOWING ORDER: "THE RESPONDENT CONTEMNORS ARE DIRECTED TO DEPOSIT A SUM OF RS 60,000 TOWARDS THE PRICE OF THE TREES CUT WITHIN A PERIOD OF FOUR WEEKS FROM TODAY IN THE HIGH COURT. HAVING ACCEPTED THE UNCONDITIONAL APOLOGY, THE CONTEMPT NOTICES ARE DISCHARGED AND THE CONTEMPT PETITION IS DISPOSED OF." THE OCCASION TO PASS THE ABOVE ORDER CAME IN A CONTEMPT PROCEEDING. THE RESPONDENTS MADE A COMPLAINT THAT THE APPELLANTS HAD CUT THE TREES IN VIOLATION OF THE STATUS QUO ORDER PASSED BY THIS COURT. THE DISTRICT JUDGE, SIVAGANGA WAS DIRECTED TO MAKE A REPORT AS TO WHETHER THE APPELLANTS HAD CUT THE TREES. BASED ON THE REPORT OF THE DISTRICT JUDGE, THE ABOVE ORDER WAS PASSED, HAVING REGARD TO THE UNCONDITIONAL APOLOGY TENDERED BY THE APPELLANTS. 7. THE DISTRICT JUDGE, SIVAGANGA WAS DIRECTED TO MAKE A REPORT AS TO WHETHER THE APPELLANTS HAD CUT THE TREES. BASED ON THE REPORT OF THE DISTRICT JUDGE, THE ABOVE ORDER WAS PASSED, HAVING REGARD TO THE UNCONDITIONAL APOLOGY TENDERED BY THE APPELLANTS. 7. IT IS ALSO BROUGHT TO OUR NOTICE THAT THE HIGH COURT, IN THE SECOND APPEAL, PASSED AN INTERIM ORDER ON 11-7-1990 STAYING THE OPERATION AND ENFORCEMENT OF THE DECREE MADE IN AS NO. 224 OF 1987. SUBSEQUENTLY, THIS INTERIM STAY WAS MADE ABSOLUTE ON THE CONDITION THAT THE APPELLANTS DEPOSIT A SUM OF RUPEES FORTY-FIVE THOUSAND IN THE TRIAL COURT WITHIN TWELVE WEEKS FROM THAT DATE FAILING WHICH THE STAY WOULD STAND AUTOMATICALLY VACATED. ON SUCH DEPOSIT, THE APPELLANTS WERE ENTITLED TO CUT THE KARUVELA TREES STANDING ON THE SUIT PROPERTY. FURTHER DIRECTION WAS GIVEN TO THE TRIAL COURT TO INVEST THE SAID AMOUNT IN A FIXED DEPOSIT FOR A PERIOD OF THREE YEARS IN A NATIONALISED BANK AND AT THE TIME OF FINAL DISPOSAL OF THE APPEAL, APPROPRIATE DIRECTION AS A REGARDS THE AMOUNT DEPOSITED WOULD BE GIVEN. IT APPEARS THAT NONE OF THE PARTIES BROUGHT IT TO THE NOTICE OF THE HIGH COURT WHEN THE IMPUGNED JUDGMENT WAS PASSED. HAVING REGARD TO THE ABOVE FACTS, THE LEARNED COUNSEL FOR THE RESPONDENTS STATES THAT APPROPRIATE DIRECTIONS MAY BE GIVEN WITH REGARD TO THE AMOUNT DEPOSITED BEFORE THE TRIAL COURT, PURSUANT TO THE INTERIM ORDER MADE BY THE HIGH COURT, AS WELL AS THE AMOUNT DEPOSITED IN THE HIGH B COURT, PURSUANT TO THE ORDER OF THIS COURT DATED 25-9-2000. FROM THE TERMS OF THE INTERIM ORDER MADE BY THE HIGH COURT, IT IS CLEAR THAT THE APPELLANTS WERE PERMITTED TO CUT THE TREES ONLY AS AGAINST THE DEPOSIT OF RUPEES FORTY-FIVE THOUSAND. HAVING DEPOSITED THE AMOUNT, THE APPELLANTS HAVE CUT THE TREES. HENCE, THE QUESTION OF RETURNING THE SAID AMOUNT DEPOSITED BY THE APPELLANTS DOES NOT ARISE WHEN THEY HAVE LOST THE CASE. FURTHER, A SUM OF RUPEES SIXTY THOUSAND DEPOSITED IN THE HIGH COURT PURSUANT TO THE ORDER MADE BY THIS COURT ON 25-9-2000, CANNOT ALSO BE REFUNDED TO THE APPELLANTS, HAVING REGARD TO THE FACT THAT THIS AMOUNT WAS DIRECTED TO BE DEPOSITED WHILE ACCEPTING THE UNCONDITIONAL APOLOGY AND DISCHARGING THE APPELLANTS FROM CONTEMPT PROCEEDINGS. OBVIOUSLY, THE APPELLANTS CANNOT CLAIM THIS AMOUNT ALSO. OBVIOUSLY, THE APPELLANTS CANNOT CLAIM THIS AMOUNT ALSO. THE LEARNED COUNSEL FOR THE RESPONDENTS STATES THAT THE RESPONDENTS HAVE BEEN D PURSUING THIS PRO BONO LITIGATION FOR A LONG TIME AND THE AMOUNT DEPOSITED IN THE TRIAL COURT AS WELL AS IN THE HIGH COURT MAY BE ORDERED TO BE GIVEN TO THEM. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE THINK IT IS JUST AND APPROPRIATE TO DIRECT THE HIGH COURT TO PAY RUPEES TEN THOUSAND TO EACH OF THE FIVE ORIGINAL PLAINTIFFS (RESPONDENTS 1 TO 5 HEREIN) OUT OF THE AMOUNT OF RUPEES SIXTY THOUSAND DEPOSITED PURSUANT TO THIS COURTS ORDER DATED 25-9-2000. THE REMAINING AMOUNT LYING WITH THE HIGH COURT, ALONG WITH INTEREST, IF ANY, ACCRUED THEREON, MAY BE SENT TO THE DISTRICT COLLECTOR, SIVAGANGA, FOR DEPOSITING IN AN APPROPRIATE REVENUE ACCOUNT OF THE TREASURY. SIMILARLY, THE TRIAL COURT IS DIRECTED TO HAND OVER THE AMOUNT OF RUPEES FORTYFIVE THOUSAND, ALONG WITH INTEREST ACCRUED THEREON, TO THE DISTRICT COLLECTOR, SIVAGANGA, FOR DEPOSITING IN AN APPROPRIATE REVENUE ACCOUNT OF THE TREASURY.