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2009 DIGILAW 610 (MAD)

M. Sivalingam v. S. Ghouse Mohideen

2009-02-19

G.RAJASURIA

body2009
Judgment :- Inveighing the order dated 16.09.2008, passed by the learned Subordinate Judge, Vellore in I.A.No.23 of 2006 in O.S.No.13 of 2006, this civil revision petition is focussed. 2. Heard both sides. 3. A summation and summarization of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus: (i) The respondent/plaintiff filed the suit O.S.No.13 of 2006 seeking the following reliefs: "a) granting a permanent injunction restraining the defendant his men, agents and servants from in any way proceeding with any sort of construction work in the suit property; b) directing the defendant to pay the cost of this suit; and c) granting such other further relief as this Honble Court may deem fit and proper." (ii) While so, I.A.No.23 of 2006 was filed by the plaintiff seeking injunction so as to restrain the defendant from raising construction in the suit property. However, the said application was ordered granting injunction. Being disconcerted and aggrieved by the said order of the lower Court, this revision has been focussed on various grounds. 4. The learned counsel for the revision petitioner/defendant would develop his argument to the effect that already the additional construction, so to say, the first floor construction is up to the lintel level and if it is stalled, certainly the defendant would be prejudiced; on the other hand, based on the undertaking that is being given by the defendant that he would not claim any compensation in the event of he losing the O.S., no prejudice would be caused to the respondent/plaintiff and that the balance of convenience is in favour of the defendant. Remonstrating and refuting and also by way of torpedoing the said argument of the learned counsel for the revision petitioner/defendant, the learned counsel for the respondent cited the decision of the Honble Apex Court reported in AIR 2005 SUPREME COURT 104 [Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass]. An excerpt from it would run thus: "Unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, and therefore, the respondent should be permitted to put the scheduled property to better use. In the facts and circumstances of the case, the lower appellate court and the High Court were not justified in permitting the respondent to change the nature of property by putting up constructions also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellants claim being found baseless ultimately, it is always open to the respondent to claim damages or in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same. Courts below erred in making the impugned orders. The said orders are liable to be set aside." 5. No doubt, during the pendency of the suit, if construction is ordered to be stopped, certainly the defendant would not be benefited. But, I could see that at one point of time, the very same defendant admitted his status as that of a tenant under the plaintiff. However, subsequently he disputed the landlord and tenant relationship. There is a remark by this Court in the order dated 03.03.2008 in W.P.No.24622 of 2003 to the effect that the Court also shall consider about the title dispute which emerged between the petitioner and the defendant. Taking into consideration the fact that at one point of time the petitioner/defendant admitted the tenancy, but subsequently he turned turtle and disputed the title of the plaintiff over the suit property, am of the considered view that he should not be allowed to continue with the construction by way of changing the status quo. 6. It is a common or garden principle of law that this Court while exercising its supervisory power under Article 227 of the Constitution of India would be reluctant to interfere with the discretionary power exercised by the lower Court based on factual analysis. Here I could see no error of law in the order passed by the lower Court. For all these reasons, I could see no merit in this revision petition. Here I could see no error of law in the order passed by the lower Court. For all these reasons, I could see no merit in this revision petition. The ends of justice would be met if a direction is given to the lower Court to dispose speedily and expeditiously the present suit O.S.No.13 of 2006 as well as one other suit filed by the same plaintiff in O.S.No.257 of 1998, which is also pending in the same Court between the same parties. Accordingly, this civil revision petition is dismissed with a direction to the lower Court to dispose of both the said suits within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.