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2014 DIGILAW 1509 (MAD)

Santha v. Govindan

2014-06-17

M.DURAISWAMY

body2014
Judgment M. Duraiswamy, J. 1. The above Second Appeal arises against the judgment and decree passed in A.S. No. 59 of 2005 on the file of Additional Subordinate Court, Pondicherry confirming the judgment and decree passed in O.S. No. 596 of 1999 on the file of Additional District Munsif Court, Pondicherry. 2. The defendants are the appellants and the respondent was the plaintiff in the suit. 3. The plaintiff filed the suit in O.S. No. 596 of 1999 initially for bare injunction and subsequently altered the same for recovery of possession. 4. According to the plaintiff, he took possession of the property as lessee and has been carrying on business in the said place by paying monthly rent to the defendants. While so, since the defendants tried to interfere with his possession, he filed a suit for bare injunction restraining the defendants from interfering with his possession. Further, according to the plaintiff, when the suit was disposed of, an appeal was filed before the lower appellate court and the lower appellate court set aside the judgment and decree of the trial court and remanded the matter back to the trial court. According to the plaintiff, the defendants took forcible possession of the suit property from the plaintiff, therefore, the plaintiff amended the prayer for recovery of possession. 5. According to the defendants, the plaintiff voluntarily handed over possession of the suit property to them and therefore, there is no forcible dispossession of the plaintiff from the suit property as alleged in the plaint. 6. Before the trial court, on the side the plaintiff, 6 witnesses were examined and 32 documents Exs. A1 to A32 were marked and on the side of the defendants, 4 witnesses were examined and 10 documents Exs. B1 to B10 were marked. 7. The trial court after taking into consideration, the oral and documentary evidences of both parties, decreed the suit. Aggrieved over the judgment and decree of the trial court, the defendants preferred an appeal in A.S. No. 59 of 2005 on the file of Additional Subordinate Court, Pondicherry and the lower appellate court also confirmed the judgment and decree of the trial court and dismissed the appeal. Aggrieved over the judgments and decrees of the courts below the defendants have filed the above second appeal. 8. Heard Mr. Aggrieved over the judgments and decrees of the courts below the defendants have filed the above second appeal. 8. Heard Mr. R. Saseetharan, learned Counsel appearing for the appellants and K. Thangavelu, learned Counsel appearing for the respondent. 9. The appellants have raised the following substantial questions of law in the above second appeal:- "(i) Whether the courts below are right in holding that the suit is not and for non-joinder of party in the amended plaint the plaintiff has heavily alleged against the Sub Inspector of Police, Bahoor Police station, Pondicherry stating that the Sub Inspector of Police handed over the key to the defendant No. 2 particularly when in the earlier occasion in A.S. No. 142 of 2000 dated 30.01.2000, the first appellate court has remanded the matter for retrial in view of the subsequent events? (ii) Whether the courts below are right in holding that the Sub Inspector of Police, Bahoor Police station is not a necessary party as he has no interest in the suit property without considering the fact that heavy allegation has been made against the Sub Inspector of Police, Bahoor Police Station, Pondicherry and that in his absence, the allegations cannot be proved? (iii) Whether the courts below are right in not considering the judgment of the criminal court granted in STR No. 1140 of 2001 in which very same allegations of dispossession was made against the 2nd defendant and the 2nd defendant was acquitted on a specific finding that the accused are not guilty of the offences charged, in terms of section 225(1) of Criminal Procedure Code? (iv) Whether the courts below are right in not considering the contradictions in the evidence adduced by the plaintiff/respondent as P.W.1 in the STR No. 1140 of 2001 and the averments made in plaint in O.S. No. 596 of 1999 regarding the date of dispossession of the suit property? (v) Whether the courts below is proper in not considering the evidence of P.W.6 adduced on the side of the plaintiff/respondent in the criminal court to the effect that the plaintiff/respondent was dispossessed on 17.12.2000 whereas it is the evidence of the plaintiff in the civil court that he was dispossessed on 10.12.2000? (vi) Whether the evidence adduced in the criminal court in same issue and in same et of facts is relevant for considerations before the competent civil court? (vi) Whether the evidence adduced in the criminal court in same issue and in same et of facts is relevant for considerations before the competent civil court? (vii) Whether the findings of the competent criminal court in same issue and in same set of facts is relevant for consideration before the competent civil court? (viii) Whether the first appellate court is right in not considering the I.A. No. 30 of 2007 filed by the appellants herein to receive judgment in STR No. 1140 of 2001, dated 24.6.2004 as an additional evidence particularly, when in the earlier occasion in A.S. No. 142 of 2000 dated 30.01.2002 the first appellate court has remanded the matter for retrial in view of the subsequent events? (ix) Whether the appellants have a right to take the plea as to non-recipient of additional evidence as one of the ground in the second appeal?" 10. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that there is no dispute that the plaintiff was a tenant under the defendants. Earlier, when the defendants tried to interfere with the plaintiff's possession, he filed a suit in O.S. No. 596 of 1999 for bare injunction. The said suit was disposed of by the trial court and on appeal, the lower appellate court set aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh consideration. After remand, during the pendency of the suit, the Sub Inspector of Police, Bahoor Police Station took the key of the property from the plaintiff and handed over the same to the defendants. Therefore, according to the plaintiff, he was forcibly dispossessed from the suit property. Though this contention was denied by the defendants, the courts below accepted the case of the plaintiff that he was dispossessed from the suit property and therefore, entitled to get back possession of the same. 11. The learned counsel appearing on behalf of the appellants submitted that since the plaintiff has made allegation as against the Sub Inspector of Police, Bahoor Police Station, he is a proper and necessary party to the proceeding, therefore, non-joinder of necessary party is fatal to the case. 12. 11. The learned counsel appearing on behalf of the appellants submitted that since the plaintiff has made allegation as against the Sub Inspector of Police, Bahoor Police Station, he is a proper and necessary party to the proceeding, therefore, non-joinder of necessary party is fatal to the case. 12. However, I am of the view that the Sub Inspector of Police, Bahoor Police Station is not a proper and necessary party for the reason that no relief is sought for as against the said Sub Inspector of Police, Bahoor Police Station. The relief sought for was only as against the defendants and the dispute was only between the plaintiff and the defendants. If at all, in order to prove the averments stated in the plaint, the plaintiff could have examined the Sub Inspector of Police, Bahoor Police Station as a witness on his side. Even, the non examination of the Sub Inspector of Police is also not fatal to the case for the reason that the very conduct of the plaintiff would establish that he was fighting tooth and nail for protecting the possession of the suit property. Such being the case, there is no necessity for the plaintiff to hand over possession of the suit property to the defendants voluntarily. If the plaintiff had an intention to hand over possession of the suit property voluntarily, he would not have prosecuted the suit and contested the same on all aspects. The very conduct of the party would establish that handing over possession of the suit property to the defendants cannot be voluntary. That apart, plaintiff's side evidence also clearly spoke about the dispossession of the plaintiff from the suit property. The oral and documentary evidences let in by the parties clearly established that the plaintiff was forcibly dispossessed from the suit property. The courts below, taking into consideration all these aspects, rightly decreed the suit for recovery of possession. 13. In these circumstances, I find no ground much less any substantial question of law to interfere with the concurrent findings of the courts below. The Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs.