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2013 DIGILAW 1386 (MAD)

C. Sambasivam v. C. Ramakrishnan

2013-03-21

M.JAICHANDREN, M.M.SUNDRESH

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Judgment :- M.M. Sundresh, J. 1. These two Original Side Appeals have been preferred by the appellant, being aggrieved against the orders passed by the learned single Judge in Application No.1018 of 2012 in C.S.No.753 of 2012 and Application No.1027 of 2012 in C.S.No.789 of 2012 respectively. 2. The appellant herein, who is the respondent in Application No.1018 of 2012 in C.S.No.753 of 2012, challenging the order of injunction granted against him, has preferred an appeal in O.S.A.No.462 of 2012. Challenging the order of the learned single Judge in not granting injunction in favour of the appellant, who is the applicant in Application No.1027 of 2012 in C.S.No.789 of 2012, has filed an appeal in O.S.A.No.100 of 2013. 3. The appellant is the one among the three brothers, who owned entire suit property. A portion of the land in the suit property owned by the appellant and his brothers were sold in pursuant to the development agreement with the third parties. Number of flats have been constructed in the portion of the suit property. After the said construction, the appellant and his brothers partitioned the remaining properties. Now the question for consideration in the suit is as to whether the passage, which is the subject matter of the suit, is to be exclusively used by the appellant and his brothers as against their tenants and other flat owners. 4. The suit in C.S.No.753 of 2012 has been filed by one of the brothers of the appellant and one of the owners of the flat. It is the case of the brother of the appellant, who is the first plaintiff in C.S.No.573 of 2012, that he has inducted number of tenants in the property owned by him and therefore, he being the co-owner and they being his tenants, the appellant cannot interfere with the usage of the common path way. The case of the second plaintiff therein is that as per the Group Development Project and as per the Development Control Rules, he is entitled to use the path way. The case of the appellant in both the appeals is that the sale deed executed between the parties as well as the Partition Deed would show that the path way is to be exclusively used and owned by the brothers alone and no one else. 5. The case of the appellant in both the appeals is that the sale deed executed between the parties as well as the Partition Deed would show that the path way is to be exclusively used and owned by the brothers alone and no one else. 5. The learned single Judge, after considering the materials available on record, has granted an order of injunction pending suit in favour of the applicants in Application No.1018 of 2012 in C.S.No.753 of 2012, thereby, consequently rejected the injunction sought for by appellant in Application No.1027 of 2012 in C.S.No.789 of 2012. Challenging the said orders passed in Applications viz., Application No.1018 of 2012 in C.S.No.753 of 2012 and Application No.1027 of 2012 in C.S.No.789 of 2012 respectively, the present Original Side Appeals have been filed. 6. The facts involved in the case are not in dispute. The applicant in one of the Applications viz., Application No.1018 of 2012 in C.S.No.753 of 2012 , is admittedly a brother of the appellant. Being the co-owner, he is entitled to use the said pathway, which is not in dispute. Therefore, when he is entitled to use the pathway, the appellant cannot have any grievance to use the said pathway by his tenants. A technical interpretation regarding the enjoyment cannot be given. When a right has been given by the owner over a property exclusively owned by him, the consequential right to use the common right enjoyed by the said person as a co-owner would also accrue to his tenants. Therefore, we do not find any error in the order of the learned single Judge. 7. Now coming to the other question as to whether the second applicant in Application No.1018 of 2012 in C.S.No.753 of 2012 is entitled to use the pathway or not, prima facie, we find that he is entitled to use the said pathway. While considering the principles governing under Order XXXIX Rules 1 and 2 of the Civil Procedure Code, this Court will have to see the settled principles having regard to the prima facie case, balance of convenience and irreparable loss. Even if a prima facie case is made out, an order of injunction shall not follow automatically without considering the aspect as to whether irreparable loss would be caused to the party in the event of non granting of injunction. Even if a prima facie case is made out, an order of injunction shall not follow automatically without considering the aspect as to whether irreparable loss would be caused to the party in the event of non granting of injunction. In the case on hand, it is not as if the appellant would be substantially prejudiced as he is not prevented from using the passage. What he seeks by way of interim injunction is preventing others from using it. Therefore, the question as to whether the appellant would succeed or not will have to be decided in the suit. Further more, it is also a settled principles of law that when an order of injunction is granted by the learned single Judge on appreciation of facts, this Court cannot substitute its view by reversing the same. 8. Therefore, we are of the view that the respondents, who are the applicants in Application No.1018 of 2012 in C.S.No.753 of 2012 have made out a prima facie case. It is further to be seen that except the appellant herein, the other brother does not have any serious objection. Of all the three brothers, only the appellant has filed these appeals and another brother has filed a suit against the appellant, supporting the case of the second applicant in Application No.1018 of 2012 in C.S.No.753 of 2012. The question regarding the relevancy of the sale deed and the partition deed will have to be seen only at the time of hearing the suit. The further question as to whether the clause contained in the documents relied upon by the appellant or the provisions of Development Control Rules will have primacy, also will have to be decided in the suit. Hence, looking from any angle, we do not find any reason to interfere with the order of the learned single Judge. Accordingly, these Original Side Appeals fail and the same are dismissed. However, we make it clear that this order will not stand in the way of the parties from taking appropriate steps to restrain any third party from entering into the suit property without any authorisation. We further make it clear that this order is made only for the purpose of deciding the interlocutory application and it will not have any bearing in the suit, which is yet to be decided on merits and on pleadings adduced by both the parties. We further make it clear that this order is made only for the purpose of deciding the interlocutory application and it will not have any bearing in the suit, which is yet to be decided on merits and on pleadings adduced by both the parties. Considering the limited scope of prayer, we request the learned single Judge dealing with the final hearing of the civil suit to expedite the same. No costs. Consequently, connected miscellaneous petitions are also dismissed.