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2010 DIGILAW 4420 (MAD)

Varadharajalu Chettiar v. Ramasamy

2010-10-01

M.VENUGOPAL

body2010
Judgment : M. VENUGOPAL, J. 1. The Petitioner/Appellant (son of the deceased 1st Defendant) has filed this Miscellaneous Petition praying to stay the Judgment and Decree dated 26.06.2009 in O.S.No.33 of 2006 passed by the trial Court viz., Additional District Judge, Puducherry at Karaikal. 2. The Learned Counsel for the Petitioner/Appellant submits that the Petitioner/Appellants father (deceased), during his life time, has beenlooking after the management of the Temple and that the Respondents 1 to 10/Plaintiffs have no manner of right and interest in the Temple and on the basis of the Judgment and Decree passed by the trial Court in the main suit, the Respondents 1 to 10 are making an endeavour to usurp the management of the Temple from him at any point of time and therefore, in the interest of justice, the Judgment and Decree passed by the trial Court dated 26.06.2009 in O.S.No.33 of 2006 may be stayed. 3. In response, it is the contention of the Learned Counsel for the Respondents 1 to 10/Plaintiffs that the trial Court has come to the conclusion that the Defendants are bound to hand over the Temple property to the Plaintiffs and that the trial Court has decreed the suit as prayed for with costs and moreover, the trial Court has held that the deceased 1st Defendant viz., father of the Appellant has entered into an agreement with the Plaintiffs and Exs.A.7 and A.8 bind the 1st Defendant (deceased) and the 1st Defendant (deceased) has filed O.S.No.52 of 2003 on the file of the Additional District Court, Puducherry at Karaikal claiming to be the present Trustee of the Temple for recovery of property and mandatory injunction and in the said suit, the Court has come to the conclusion that the Plaintiff (1st Defendant in the present suit) viz., the father of the Appellant has not established his status as Trustee and that he has been mentioned as administer in the documents filed and therefore, when the Petitioner/ Appellants father has not established that he has been the Trustee of the suit Temple, then, the claim of the Petitioner that they are Hereditary Trustees has no basis whatsoever. 4. 4. Advancing his arguments, it is the contention of the Learned Counsel for the Respondents 1 to 10 that the Petitioner/Appellant has never been looking after the management of the Temple and he has come into the picture after closing of the evidence and before argument has been advanced, the Petitioner/Appellants father (1st Defendant) died and therefore, the Petitioner has been brought on record and the main object of the Petitioner in seeking the stay of the Decree of the trial Court is to perpetuate the mismanagement and illegal activities and therefore, prays for dismissal of the stay petition. 5. As per Order 41 Rule 5 of Civil Procedure Code, a discretionary power has been conferred on the Appellate Court to grant stay if Sufficient Cause is made out and the litigant satisfies the judicial conscience of the Court that it will sustain Substantial Cause. 6. It is to be noted that the power to grant stay is discretionary and flows from the jurisdiction conferred on the Appellate Court, which is Equitable in nature as per decision Atma Ram Properties Private Limited V. Federal Motors Private Limited (2005) 1 SCC at page 705. 7. It is an axiomatic principle in law that an Appeal is a continuation of original proceedings viz., the suit. The trial Court has come to the conclusion that the 1st Defendant viz., Petitioners father (since deceased) has not been the Trustee of the Temple and only he has been maintaining the Temple and managing the property and if at all there has been any agreement between the Petitioner/Appellants father viz., the 1st Defendant (deceased) and other Defendants, the same will not bind the Plaintiffs and therefore, has directed the Defendants 2 to 3 to hand over the possession of property to the Plaintiffs. Added further, the trial Court has also, in its Judgment, inter alia, observed that the Petitioner/Appellants father (1st Defendant since deceased) has admitted that the Temple belongs to Vaniya Vysya Community etc. 8. Added further, the trial Court has also, in its Judgment, inter alia, observed that the Petitioner/Appellants father (1st Defendant since deceased) has admitted that the Temple belongs to Vaniya Vysya Community etc. 8. On a careful consideration of respective contentions and though an Appeal is a continuation of original trial Court proceedings in law viz., that of the suit, yet, on the basis of facts and circumstances of the case, prima facie this Court opines that the balance of convenience and equity are not in favour of the Petitioner/Appellant and as such, he is not entitled to get the relief of Stay of trial Courts Judgment and Decree dated 26.06.2009 passed in the main suit O.S.No.33 of 2006 and consequently, the Petition fails. 9. In the result, the Miscellaneous Petition is dismissed, leaving the parties to bear their own costs. It is open to the parties to take necessary steps for early hearing of the Appeal to prevent an aberration of justice.