Cypress Semiconductor Technology India Private Limited, Represented by its Director Mr. K. Vishwanath v. M. G. Brothers Lorry Service, Represented by its Partners & Others
2009-01-19
P.R.SHIVAKUMAR
body2009
DigiLaw.ai
Judgment :- The fourth defendant in C.S.No. 517 of 2007 is the applicant in these applications. The plaintiff in the suit is the first respondent and the other defendants in the suit are the respondents 2 to 4. 2. This suit has been filed by the first respondent herein against the applicant and respondents 2 to 4 herein, (i) for a declaration that the order of the DRT-II, Chennai, dated 10.08.2006 as modified by order dated 30.8.2006 and 38. 2006 made in I.A.No. 336 of 2006 in T.A. 1/2004 on the file of the said Tribunal to be null and void and not binding on the property of the first respondent/plaintiff described in plaint ‘A’ Schedule, (ii) for a declaration that the sale certificate No.53 of 2006 dated 38. 2006 issued by DRT-II, Chennai is null and void and not binding on the property described in plaint A schedule and (3) for a permanent injunction restraining the applicant/4th defendant from acting upon the sale certificate No.53 of 2006 and dealing with the property described in plaint ‘A’ schedule. 3. Along with the plaint the first respondent/plaintiff also filed:- (i) O.A.No.729 of 2007 for an interim injunction restraining the applicant herein/fourth defendant and his men from developing or dealing with property, (ii) an application A.No.4144 of 2007 for staying the operation of the above said sale certificate, pending disposal of the suit and (iii) another application A.No.4145 of 2007 under Order II Rule 2 CPC. The applicant herein, on his part, filed A.No.4349 of 2007 for rejection of plaint under Order VII Rule II C.P.C. All the said applications were jointly heard and disposed by a common order dated 17. 2007. By the said order, A.No.4145 was allowed and leave sought for was granted. O.A.No.729 of 2007 and A.No.4144 were allowed and an order of stay staying the operation of sale certificate No.53 of 2006 pending disposal of the suit and an order of injunction were granted as prayed for. A.No.4349 of 2007 was dismissed. .4. The above said common order was challenged in O.S.A.Nos.211 to 214 of 2007 before a Division Bench of this Court. After hearing, all the said appeals were dismissed by the Division Bench by Judgment dated 8. 2007 confirming the order of the learned single Judge.
A.No.4349 of 2007 was dismissed. .4. The above said common order was challenged in O.S.A.Nos.211 to 214 of 2007 before a Division Bench of this Court. After hearing, all the said appeals were dismissed by the Division Bench by Judgment dated 8. 2007 confirming the order of the learned single Judge. Thereafter, the applicant herein preferred Special Leave Petitioners before the Honourable Supreme Court in SLP.Nos.9034-9037/2008 and the same were dismissed on 14. 2008. Only thereafter, the applicant has come forward with the present applications for restricting the orders of stay and injunction to the first item of the suit A schedule properties alone. 5. This Court heard the arguments advanced by Mr. N.R. Chandran learned senior counsel for Mr. R. Kannan learned counsel for the applicant and Mr. J. Sivanandaraj counsel for the respondents. Judges summons, affidavits, counter affidavits and other connected papers relied on by the parties were also perused. 6. It is the contention of the applicant that the first respondent/plaintiff claims interest in respect of item No.1 of ‘A’ schedule properties alone under the sale certificate No.53 of 2006; that however the first respondent/plaintiff had filed A.No.4144 of 2007 seeking stay of operation of the entire sale certificate and O.A.No.729 of 2007 for injunction inrespect of the entire property covered by sale certificate; that this Court also chose to grant a blanket order of stay and injunction without restricting its application to the property in which the first respondent/plaintiff is interested namely item No.1 of the suit ‘A’ scheduled properties alone; that the respondent/plaintiff cannot have any interest in any other property; that the said mistake was committed by the learned single judge while dealing with those applications by oversight and that the same has to be corrected by using the inherent powers of this Court by passing an order restricting the application of the orders of stay and injunction to item No.1 of the suit ‘A’ Schedule Properties alone. .7. Per contra, it is contended on behalf of the first respondent/plaintiff that even though the plaintiff may be interested in item No.1 of the suit ‘A’ Schedule properties alone, stay of the entire sale certificate and injunction inrespect of the entire properties covered by the sale certificate have been sought for on the ground that the sale was vitiated by fraud; that the learned single Judge in the order dated 17.
2007 made a clear observation to the effect that fraud would vitiate the entire proceedings and hence, the operation of the entire sale certificate had to be stayed and injunction had to be granted in respect of the entire properties covered on the sale certificate; that the order of the learned single Judge was a conscious one passed knowing fully well that the first respondent/applicant was interested in item No.1 of the ‘A’ schedule properties alone and that hence, there is no ambiguity capable of being corrected in these applications using this court’s inherent powers under 151 of CPC either by way of clarification or by way of restricting the application of stay and injunction to one of the properties alone. The further contention of the first respondent/plaintiff is that the order of the single Judge, having been confirmed by the Division Bench in appeal and thereafter by the Hon’ble Supreme Court in Special Leave Petitions, is not capable of being modified by this Court (single Judge) by restricting its application to one of the properties alone as prayed for in these applications; that if at all the applicant thinks that the order has got to be modified by restricting its application to one or other of the properties alone, the applicant has to approach the appellate forum which dealt with the last of the appeals, in this case the Hon’ble Supreme Court, and that hence, the present applications are to be dismissed as not maintainable. 8. Thiru N.R. Chandran, learned senior counsel, who advanced arguments on behalf of the applicant, submitted that the order passed by the Honourable Supreme Court in the Special Leave Petitions was not an order passed after notice to the opposite party and that in such cases (namely when the order was passed without notice to the other party such order would not prevent an application for review being entertained by the Court below whose order had been challenged before the Supreme Court in the Special Leave Petitioners. However, the learned counsel for the first respondent/plaintiff contended that in such an event, the applicant should have approached the Division Bench whose Judgment was sought to be challenged in the Special Leave Petitions for the modification of its Judgment and not the order of the single Judge as the single Judge’s order had got merged with the Judgment of the Division Bench. .9.
.9. The learned senior counsel appearing for the applicant relies on the Judgment of the Honourable Supreme Court in M.Shankaraiah and another vs. State of Karnataka and others, reported in 1993 supp 4 SCC 595 wherein it was held that the Supreme Court could recall an order using its inherent powers to avoid injustice. In the said Judgment, the Honourable Supreme Court has observed that an order of a competent Court, even though erroneous, mistaken or improperly obtained, could not be substituted or clarified or modified by the executive authorities according to their own views and that remedy in such cases can be had only from a higher Court or from the same Court. Relying on the said observations of the Honourable Supreme Court, the learned senior counsel for the applicant has contended that the apparent error that crept in the order (single Judge) can be corrected by this Court using its inherent powers under Section 151 of CPC. According to him, no larger relief than what has been sought for in the plaint can be granted in the interlocutory application. Relying on another Judgment of the Honourable Supreme Court in Gulabrao Balwantrao shinde and others Vs. Chhabubai Balwantrao Shinde and others reported in 2003 1 CTC 254, learned senior counsel for the applicant has made an attempt to show that the Court has granted a larger relief than what was claimed by the first respondent/plaintiff. According to the submissions made by the learned senior counsel, in stay Application No.4144 of 2007, the stay of operation of Sale Certificate No.53 of 2006 was sought for only in respect of suit ‘A’ schedule properties, but however the Court has chosen (probably by mistake) to grant blanket stay in respect of the entirely of the Sale Certificate. In support of the above stand, learned senior counsel showed a copy of the affidavit and Judge’s summons served on the applicant. Of course, it is true that the affidavit and Judge’s summons originally contained the sentence “pertaining to schedule ‘A’ mentioned property.” However, the same has been scored out in the affidavit and in the Judge’s summons in O.A.No.729 of 2007 to make the prayer one for stay of operation of the Sale Certificate without any qualification and for injunction restraining the applicant herein from developing or dealing with the suit ‘A’ schedule property.
In Judge’s summons of A.No.4144 of 2007, the words “pertaining to schedule ‘A’ mentioned property” have been deleted making the prayer one for stay of operation of Sale Certificate in its entirety without any qualification. Therefore, the contention of the learned senior counsel for the applicant to the effect that the prayer for stay and injunction in A.No.729 of 2007 was restricted to suit ‘A’ schedule properties alone and this court, by inadvertence granted stay of the operation of Sale Certificate and injunction in respect of the entire property covered by Sale Certificate cannot be accepted. 10. However, the learned senior counsel for the applicant has argued that the interim relief which is larger than the relief of permanent nature prayed for in the suit cannot be granted in the interlocutory application; that the relief sought for in the plaint still remains restricted to plaint ‘A’ schedule properties and that hence, the interim orders which are wider in scope than the final relief that can be granted in the suit are liable to be modified. 11. Per Contra, the learned counsel for the first respondent/plaintiff in support of his contention that the power of review is not available to the High Court after the Special Leave Petitions were dismissed by the Honourable Supreme Court, relies on the Judgment of the Supreme Court reported in AIR 1999 SC 1486 (Abbai Maligai Partnership firm Vs. K. Santhakumaran and another). The Honourable Supreme Court made the following observations in the said Judgment:- “The manner in which the learned single Judge of the High Court exercised review jurisdiction after the SLPs against the self same order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the order dated 1. 1987 had already been dismissed by this court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed.” 12.
The High Court was aware that the SLPs against the order dated 1. 1987 had already been dismissed by this court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed.” 12. Learned Senior Counsel for the applicant pointed out the fact that in the said case, the SLP had been dismissed after hearing both parties and the same was the reason why the Honourable Supreme Court held that the High Court did not have the power of review after the Special Leave Petitions had been dismissed. It is obvious that the said observation of the Honourable Supreme Court in the above said Judgment is not qualified to the effect that the High Court cannot exercise the power of review only in cases where SLP was dismissed after notice to the opposite party. However, even assuming that the proposition put forward by the learned senior counsel for the applicant that the said observation could be applicable only in cases wherein the appellate forum passed an order or Judgment after notice to the opposite party is sustainable, the present application for review invoking the inherent powers of the Court before the single Judge are not maintainable, in view of the fact that the order of the single Judge has been confirmed by a Division Bench of this Court in O.S.A.Nos.211 to 214 of 2007 and the Judgment in the said appeals was pronounced after hearing both sides. 13. For all the reasons stated above, this Court comes to the conclusion that the applications seeking orders restricting the order of stay and injunction dated 17.07.2007, made in A.No.4144 of 2004 and O.A.No.729 of 2007 to item No.1 of the suit properties ‘A’ schedule property alone deserves to be dismissed as not maintainable. Accordingly both A.No.4336 of 2008 and 4337 of 2008 are dismissed.