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2012 DIGILAW 3563 (MAD)

Petitioner v. Respondent

2012-08-13

R.SUBBIAH

body2012
Judgment : R. SUBBIAH, J., 1. A.No.2041 of 2012: This is an application filed by defendants 2 and 3 to revoke the leave granted to the plaintiff to sue the defendants in A.No.4980 of 2009. A.No.328 of 2012: This is an application filed by defendants 2 and 3 to vacate the order of interim injunction granted on 09.02.2010 in O.A.No.1033 of 2009. 2. In both applications, the applicants are defendants 2 and 3, the 1st respondent is the plaintiff and the 2nd respondent is the 1st defendant. For easy reference, the parties are hereinafter referred to as they are arrayed in the plaint. 3. The plaintiff herein filed a suit as against the defendants for permanent injunction restraining them from in any manner disturbing his peaceful possession and enjoyment of schedule 'A' and 'B' properties. 'A' schedule property, namely, 1050/4200 sq.ft. undivided share together with flat is situated at Kodambakkam, within the jurisdiction of this Court. Schedule 'B' property measuring to an extent of 5021.5 sq.ft. together with building thereon measuring to an extent of 1728 sq.ft. in the ground floor and 1008 sq.ft. in the first floor, bearing door No.24-2-153 is situated at Shanthi Nagar, Nellore, Andhra Pradesh. It is the case of the plaintiff that he is the absolute owner of the suit properties. Defendants 2 and 3 are the wife and son of the 1st defendant respectively. Schedule 'A' property was purchased by the plaintiff from defendants 2 and 3 through the 1st defendant, as their power agent dated 24.03.2009, under two registered sale deeds both dated 24.03.2009, registered as Document No.885 and 887 of 2009 on the file of S.R.O., Kodambakkam. Schedule 'B' was purchased by the plaintiff from the 3rd defendant through the 1st defendant as his power agent, under a registered sale deed dated 22.08.2009, registered as Doc.No.6943 of 2009 on the file of District Registrar, Nellore. The allegation of the plaintiff is that he is in absolute possession and enjoyment of both schedule properties. It appears that there was some dispute between the defendants in sharing the consideration paid by the plaintiff. In the said situation, the plaintiff was called by some third persons claiming to be representatives of defendants 2 and 3 and asked him to vacate the schedule mentioned properties; otherwise, he would be thrown out by force. It appears that there was some dispute between the defendants in sharing the consideration paid by the plaintiff. In the said situation, the plaintiff was called by some third persons claiming to be representatives of defendants 2 and 3 and asked him to vacate the schedule mentioned properties; otherwise, he would be thrown out by force. Similarly, the tenants, who are in occupation of the properties, have also been threatened by them. Hence, the present suit has been filed for an injunction restraining the defendants from in any manner disturbing the plaintiff's peaceful possession and enjoyment of the suit properties. Since 'B' schedule property is situated outside the jurisdiction of this Court, the plaintiff herein obtained leave in A.No.4980 of 2009 on 01.10.2009 to file a suit before this Court. The plaintiff also filed O.A.No.1033 of 2009 seeking an order of interim injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. This Court, by order dated 09.02.2010, granted an order of interim injunction. 4. On appearance, defendants 1 and 2 filed the present applications (i) to revoke the leave granted by this Court in respect of 'B' schedule property and (ii) to vacate the order of interim injunction granted on 09.02.2010 in respect of 'B' schedule property. 5. The main contention of defendants 2 and 3 is that this Court has no jurisdiction with regard to 'B' schedule property, situated in Nellore. The defendants are also residing outside the jurisdiction of this Court i.e. in Andhra Pradesh. Therefore, the leave granted with regard to 'B' schedule property has to be revoked and the interim injunction with regard to 'B' schedule property has to be vacated. 6. Per contra, the plaintiff filed a common counter stating that the suit 'A' schedule property situated at Kodambakkam is within the jurisdiction. Schedule 'B' property is at Nellore. The defendants threatened the plaintiff that they would dispossess him from the schedule properties, which gave cause of action for filing the suit. The threat made by defendants is one and the same for both schedule 'A' and 'B' properties and, as such the cause of action is inseparable. Further, as the threat was received by the plaintiff from defendants 2 and 3 in Chennai, the part of cause of action for the suit in respect of 'B' schedule property arose within the jurisdiction of this Court. Further, as the threat was received by the plaintiff from defendants 2 and 3 in Chennai, the part of cause of action for the suit in respect of 'B' schedule property arose within the jurisdiction of this Court. Moreover, it is a suit for permanent injunction and it is not a suit for land and it is only seeking right in personam and as such, this Court has rightly granted leave under clause 12 of the Letters Patent. The present suit has been filed before this Court on 05.10.2009 and after granting interim injunction, notice of the same was duly served on them. Thus, he prayed for the dismissal of both applications. 7. Learned counsel for defendants 2 and 3 submitted that 'B' schedule property is situated at Nellore, Andhra Preadesh. The defendants are also residing in Andhra Pradesh. Under such circumstances, the interim order granted in respect of 'B' schedule property is liable to be vacated since the property is not situated within the jurisdiction of this Court. In support of this contention, the learned counsel has relied on the decisions reported in Ranganathan.vs. Sai Jagannathan ( 1995 (II) MLJ 559 ) and Thamiraparani Investments Pvt.Ltd., .vs. Mota Films Pvt.Ltd., ( 2006(1) CTC 270 ). 8. Per contra, the learned Senior Counsel appearing for the plaintiff submitted that this is not a suit for recovery of possession of the land. This is only for a suit for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the property. The cause of action for filing the suit in respect of 'A' and 'B' schedule is one and the same. Therefore, the cause of action is inseparable and since one of the schedule properties is situated within the jurisdiction of this Court, the suit in respect of 'B' schedule is also maintainable before this Court. The learned senior counsel for the applicants, by relying upon the decision of this Court in the case of N.Dhanalakshmiand others .vs. S.Eknathan (1997 MLJ 132) submitted that the relief sought for by the plaintiff is a personam in nature and under such circumstances, he prayed for the dismissal of both applications. 9. keeping in mind the submissions, I have carefully gone through the entire materials available on record. 9. keeping in mind the submissions, I have carefully gone through the entire materials available on record. It is the submission of the learned counsel for defendants 2 and 3 that even if the suit is for bare injunction, it is a suit for land and when the land is situated outside the jurisdiction of this Court and the defendants are also residing outside the jurisdiction of this Court, this Court will have no jurisdiction. At this stage, it would be appropriate to refer the judgment relied on by defendants 2 and 3 in support of this contention reported in Ranganathan'scase (supra), wherein it has been statedc as follows: "6. ..... Their Lordships have considered the construction and meaning of words "suit for land" in Clause 12 and have held that the last part of Clause 12 applies to all other cases other than suits for land only and therefore, we have to necessarily hold that the present suit being one for land lying outside the jurisdiction of this Court, the High Court has no jurisdiction to entertain the suit irrespective of the fact that the defendants are residing with the jurisdiction of this Court. When the suit itself is not maintainable, the question of granting injunction does not arise. Therefore, the preliminary point raised in the injunction application is decided to hold that the suit is not maintainable in this Court and therefore, injunction also cannot be granted and the injunction already granted has to be vacated and the plaint is to be returned to the plaintiffs for presentation before proper court." 10. Therefore, the preliminary point raised in the injunction application is decided to hold that the suit is not maintainable in this Court and therefore, injunction also cannot be granted and the injunction already granted has to be vacated and the plaint is to be returned to the plaintiffs for presentation before proper court." 10. In the case of ThamiraparaniInvestments Pvt.Ltd (supra), the Head Notes are extracted hereunder: "Suit property situate outside jurisdiction of Madras High Court - Suit filed seeking permanent injunction retraining defendant from in any manner entering into suit property and disturbing possession of plaintiff and for mandatory injunction directing defendant to restrict their activities to property adjoining to suit property -Such suit is for purpose of acquiring possession of or safeguarding possession of or establishing title to or right in suit property - Expression suit for land should not be confined and limited to suits for recovery of possession of land or to obtain declaration of tile -Suit for control of land would also fall within ambit of expression suit for land -Leave granted to file suit in High Court when suit property is situate outside jurisdiction of High Court is liable to be revoked - Order revoking leave upheld". 11. Per contra, the learned senior counsel for the plaintiff relied on the judgment reported in Dhanalakshmi'scase (supra) in support of his contention that this is a suit for bare injunction and it is not a suit for land and the relief sought for by the plaintiff is personam in nature. 12. A perusal of the facts of that case would show that the suit was for specific performance and also for injunction restraining the defendant from alienating the suit property. So far as the suit for specific performance is concerned, it is only an enforcement of the contract and the injunction sought for was also only restraining the defendant from alienating the suit property pending suit. So far as the present suit is concerned, the suit is for injunction restraining the defendants from interfering with the peaceful possession of the suit property. Therefore, the plaintiff by restraining the defendants, intended to have a control over the land. Hence, the nature of relief sought for would amount to control over the land. Under such circumstances, this suit has to be construed only as the suit for land. Therefore, the plaintiff by restraining the defendants, intended to have a control over the land. Hence, the nature of relief sought for would amount to control over the land. Under such circumstances, this suit has to be construed only as the suit for land. Hence, the judgment relied on by the plaintiff cannot be made applicable to the facts of this case where there is no prayer with regard to the possession of the property by the plaintiff. On the other hand, the factual aspects of that case would show that the suit was filed only for specific performance of the contract. In my considered opinion, the judgments relied on by the learned counsel for defendants 2 and 3 are squarely applicable to the facts of the case. In a suit for land, the cause of action is immaterial. When the land is not situated within the jurisdiction of this Court, the suit is not maintainable before this Court. So far as 'B' schedule property is concerned, the plaintiff ought to have filed a suit before the Court only where the property is situated. Therefore, in my considered opinion, the leave granted in respect of 'B' schedule property is liable to be revoked. Accordingly, both the applications are allowed and leave granted in respect of 'B' schedule property is revoked. Consequently, the interim order granted in respect of 'B' schedule property is also vacated.