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2014 DIGILAW 609 (MAD)

Thanji Ammal v. Kuttachi Ammal

2014-03-07

P.R.SHIVAKUMAR

body2014
JUDGMENT : P.R. Shivakumar, J. The 5th defendant in the original suit in O.S.No.224/1999 on the file of the Court of Additional District Munsif, Tiruvannamalai, is the appellant in the present second appeal. The respondents 1 to 6 herein filed the above suit against the rest of the respondents and the appellant herein for the relief of permanent injunction. The learned Additional District Munsif, Tiruvannamalai, after trial, dismissed the suit holding that the respondents 1 to 6/plaintiffs 1 to 6, were not entitled to the relief of injunction sought for in the plaint. As against the decree of the trial court dated 10.2.2004 dismissing O.S. No. 224/1999, the respondents 1 to 6 herein/plaintiffs, preferred an appeal in A.S. No. 36/2005 on the file of the lower appellate judge, namely the Principal Subordinate Judge, Tiruvannamalai. The learned lower appellate judge, after hearing, allowed the appeal, set aside the decree dated 10.2.2004 passed by the trial court and decreed the suit by his judgment and decree dated 20.03.2006. As against the said judgment and decree of the learned lower appellate judge, the present second appeal has been filed by the appellant herein, who figured as the 5th defendant in the suit. 2. The second appeal was admitted identifying the following to be the substantial questions of law involved in the second appeal: "1. Whether the respondents 1 to 6 herein are entitled for a decree for bare injunction without seeking the relief of declaration especially when their right and title to the property in question are subject to disputes 2. Whether the Lower Appellate Court is correct in law in reversing the well considered judgment and decree of the Trial Court especially when the pleadings of the plaintiffs does not correlate to the relief claimed and the property in respect of which the relief is claimed" 3. The arguments advanced by Mr. S. Mukunth, learned counsel appearing for M/s. Sarvabhauman Associates, on behalf of the appellant, by Mr. S. Vediyappan, learned counsel for the respondents 1 to 6 and by Mr. N. Muthuswami, learned counsel for the respondents 7 to 10 are heard. The materials available on record are also perused. 4. The suit was filed by the respondents 1 to 6 herein originally against the respondents 7 to 10, who are the officials of the Tamil Nadu Electricity Board alone. Subsequently, the appellant herein was impleaded as the 5th defendant. N. Muthuswami, learned counsel for the respondents 7 to 10 are heard. The materials available on record are also perused. 4. The suit was filed by the respondents 1 to 6 herein originally against the respondents 7 to 10, who are the officials of the Tamil Nadu Electricity Board alone. Subsequently, the appellant herein was impleaded as the 5th defendant. The pleadings in the plaint are to the effect that a well dug in Survey No. 5/10 of Karunthuvampadi village, Tiruvannamalai Taluk was meant for irrigating not only the land of the appellant herein/5th defendant, but also meant for irrigating the lands belonging to the respondents 1 to 6 herein/plaintiffs in the other sub divisions of the very same survey number, as it was dug by the Government under the "Jeevan Dhara Scheme" based on the request of the husband of the first respondent and his brothers. 5. It was contended further in the plaint that the well was dug in between survey Nos. 5/9 and 5/11 and the said area comprising the well was assigned Survey No. 5/10. Admittedly, electricity service connection for operating a 5 HP electric motor pump-set fitted in the said well was provided by the Tamil Nadu Electricity Board under service connection No. 202. The service connection was given in the name of one Arumugam, the husband of the first respondent herein. The fact that the said service connection was obtained by furnishing a wrong survey number was brought to the notice of TNEB and the electricity officials were apprised of the same, pursuant to which they wanted to disconnect the service connection. Hence the respondents 1 to 6 herein preferred the suit O.S. No. 224/1999 on the file of the District Munsif, Tiruvannamalai. The suit was resisted by the officials of the Electricity Board that the service connection was obtained furnishing a wrong survey number and that therefore the same was liable to be disconnected. The appellant, who was impleaded subsequently as 5th defendant, resisted the suit contending that the well was dug in Survey No. 5/9(b), which exclusively belongs to her; that the service connection was obtained by Arumugam furnishing an erroneous survey number and that hence the attempted disconnection of the service connection should not be prevented. 6. The appellant, who was impleaded subsequently as 5th defendant, resisted the suit contending that the well was dug in Survey No. 5/9(b), which exclusively belongs to her; that the service connection was obtained by Arumugam furnishing an erroneous survey number and that hence the attempted disconnection of the service connection should not be prevented. 6. The learned trial judge, at the conclusion of trial, accepted the above said contention of the appellant/5th defendant, which was also supported by the respondents 7 to 10/defendants 1 to 4 to the extent that the service connection was obtained furnishing wrong survey number. The learned trial judge, based on the said findings held that the respondents 1 to 6/plaintiffs were not entitled to the injunction as prayed for not to disconnect the service connection No.202 and ultimately, the learned trial judge dismissed the suit by his judgment and decree dated 10.02.2004. 7. The decree of the trial court dismissing the suit was challenged before the lower appellate court by the respondents 1 to 6 herein/plaintiffs in A.S. No. 36/2005. The learned lower appellate judge, after hearing, relying on a document which was produced in the appellate stage as additional evidence, namely a copy of the decree, wherein the appellant herein/5th defendant was granted a decree declaring her exclusive right to the areas comprised in survey Nos. 5/9 and 5/13 excepting the well dug in survey No.5/9, over which also she claimed exclusive right. The lower appellate court also came to the conclusion that since the service connection had been given to the electric pump-set fitted in the said well, Arumugam and all his brothers were entitled to equal share in the service connection and that hence the respondents 1 to 6/plaintiffs were entitled to an injunction not to disconnect the service connection. As against the said decree present second appeal has been filed. 8. Of course, there was a claim made by the appellant/5th defendant that the well belonged to her absolutely, in which, others, namely the plaintiffs, did not have any right. The plaintiffs were able to produce a certified copy of the decree passed in another suit filed by the appellant/5th defendant, wherein her claim for exclusive right to the well was negatived. The said document was marked as Ex.A9 in the appellate stage, as an additional evidence. 9. The plaintiffs were able to produce a certified copy of the decree passed in another suit filed by the appellant/5th defendant, wherein her claim for exclusive right to the well was negatived. The said document was marked as Ex.A9 in the appellate stage, as an additional evidence. 9. The first substantial question of law seems to have been formulated on the assumption that a suit for bare injunction without a prayer for declaration, when title is in dispute, is not maintainable. Such a notion is incorrect. In the Specific Relief Act, 1963, there is a provision in Section 34 that the court shall not grant any declaration where the plaintiffs being able to seek further relief than a mere declaration of a title omits to seek such further relief. In short, there is a prohibition against granting declaration in air without a prayer for a further relief. Similar prohibition is not found in Chapters VII and VIII dealing with injunctions. In none of the provisions of the said Act, it has been stated that a suit for bare injunction, when the title is in dispute, is not maintainable. 10. In this regard, a reference to Section 27 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 shall be appropriate. Section 27 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 reads as follows: 27. Suit for injunction" In a suit for injunction - (a) where the relief sought is with reference to any immovable property, and (i) where the plaintiff alleges that his title to the property is denied, or (ii) where an issue is framed regarding the plaintiff's title to the property; Fee shall be computed on one-half of the market value of the property or on rupees seven hundred and fifty, whichever is higher. (b) Where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is value in the plaint or on rupees two thousand, whichever is higher. (b) Where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is value in the plaint or on rupees two thousand, whichever is higher. (c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher." Clause (a) of the said section deals with injunction in respect of the immovable properties. It is provided therein that where the plaintiff alleges in the plaint that his title to the property is denied or where an issue is framed regarding the plaintiff's title to the property, fee shall be computed on one-half of the market value of the property or Rs. 750/- whichever is higher. 11. A reading of the said clause will make it clear that though the title is disputed as per the plaint averment or it was disputed in the defence plea of the defendant leading to the framing of an issue regarding title, then court fee has to be computed as indicated above and nowhere it has been stated that a suit for bare injunction even though the title has been disputed, shall not be maintainable. In this regard, the recent judgment of the Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. & others reported in 2008 (6) CTC 237 : AIR 2008 SC 2033 : (2008) 4 SCC 594 : LNIND 2008 SC 748 : (2009) 1 MLJ 1001 is also relevant. In that case, it was clarified that the grant of injunction being one dependent on the discretion of the court, the court may refuse to grant injunction, when complicated questions of title have arisen. It has also been clarified that in suits with prayers for bare injunctions, the courts have to go into the question of title incidentally for the purpose of deciding whether the relief can be granted or not. It has also been clarified that in suits with prayers for bare injunctions, the courts have to go into the question of title incidentally for the purpose of deciding whether the relief can be granted or not. At the same time, the Hon'ble Apex Court has expressed a view that the court should be cautious when the issue regarding title is complicated and not suitable for resolution in an enquiry in a summary manner and that in such cases, the parties must be relegated to a more comprehensive suit of declaration and injunction. The ultimate result of the judgment is a direction not for a blanket dismissal of the suit on the ground that it has been filed for a bare injunction when the title is in dispute. On the other hand it has been made clear that due to convenience of court and the desirability of having a detailed trial, the courts are directed to decline the relief of injunction and at the same time direct the plaintiffs to seek the more comprehensive relief. In that case also, the court had not shut the doors against the plaintiffs therein. It gave leave and directed the plaintiffs to file a more comprehensive suit for the relief of declaration and injunction. The above said discussion shall provide a fitting answer to the question framed as first substantial question of law. 12. It is an admitted fact that the husband of the first respondent obtained a service connection for the said well stating the survey number of the land in which the well had been dug, as survey No.5/11. Subsequently, without amending the said paragraph in the plaint, namely paragraph 5 in the plaint, a new paragraph came to be added by way of amendment as paragraph 8(a) containing allegations to the effect that the water diviner selected the suitable place for digging the well, which fell in between Survey Nos. 5/9 and 5/10 and that the area in which the well was dug was subsequently sub divided and assigned Survey No.5/9-B. With such contradicting and conflicting pleas between paragraph 5 and paragraph 8(a) of the plaint regarding the survey number, in which the well in dispute had been dug, the plaintiffs proceeded with the trial of the suit. 13. The question framed as the second substantial question of law does have substance in it. 13. The question framed as the second substantial question of law does have substance in it. It relates to the prayer made in the plaint being one thing and the relief granted being something else. In this regard, this court's attention is drawn to the prayer part of the plaint, which reads as follows: "The plaintiffs are therefore prayed that this Hon'ble Court may be pleased to pass a judgment and decree. (a) granting a permanent injunction restraining the defendants their men, agents and servants from in any manner interfering from disconnecting the suit service connection. (b) directing the defendants to pay the plaintiffs the cost of the suit. (c) grant such other or further relief." 14. A reading of the said prayer in the plaint will show that apart from the grammatical blunder in the opening sentence of the prayer, the main prayer itself is quite confusing. If a literal meaning of the prayer is taken, the same shall be construed to be a prayer in support of the proposed disconnection of the suit service connection. What has been prayed for is not to interfere with the disconnection of the suit service connection. Disregarding such a patent error in the prayer, the learned lower appellate judge has chosen to pronounce a judgment with the operative portion, which reads as follows: "In the result, the appeal is allowed. The decree and Judgment in O.S.No.224/99, dated 10.2.2004 is hereby set aside. The suit is decreed as prayed for. In view of the dispute between the parties and relationship no order as to costs." 15. When the operative part of the judgment is that the suit is decreed as prayed for, the decree should have been drafted in consonance with the prayer made in the plaint. Then the decree should have been drafted to the effect that the defendants be prevented from interfering with "the disconnection of the suit service connection". But the office of the lower appellate court seems to have drafted a decree as if the prayer was for an injunction restraining the defendants from disconnecting the suit service connection. The same led to the formulation of the second substantial question of law. Even after such formulation of a substantial question of law, the respondents 1 to 6/plaintiffs have not chosen to rectify the defect by seeking the leave of the court to amend the prayer appropriately. 16. The same led to the formulation of the second substantial question of law. Even after such formulation of a substantial question of law, the respondents 1 to 6/plaintiffs have not chosen to rectify the defect by seeking the leave of the court to amend the prayer appropriately. 16. Even on the previous date of hearing, when it was brought to the notice of the learned counsel for the respondents 1 to 6/plaintiffs, an adjournment was obtained to get instructions from the respondents 1 to 6/plaintiffs for seeking the permission of the court to withdraw the suit, with liberty to file a fresh suit. Today, the respondents 1 to 6/plaintiffs have chosen not to seek such a permission. They have also failed to take steps for amending the prayer. On the other hand, the learned counsel for the respondents 1 to 6/plaintiffs ignoring the same, has chosen to argue the case contending that the mistake that crept in drafting of the plaint could be ignored and the relief could be granted even without such an amendment. This court is not in a position to accept the above said contention of the learned counsel for the respondents 1 to 6/plaintiffs, that too, when it has been made as a substantial question of law on which the appeal was admitted. The continued failure on the part of the respondents 1 to 6/plaintiffs to rectify the defects by amending the prayer and the expectation that the relief should be granted without amending the prayer will make plea of them liable to be rejected. For all the reasons stated above, the second substantial question of law is answered accordingly in favour of the appellant and in line with the said finding, this court decides to allow the appeal, set aside the decree passed by the appellate court and confirm the decree of the trial court dismissing the suit for the reasons stated above and not for the reasons found in the judgment of the trial court. In the result, the second appeal is allowed. The judgment and decree of the learned Principal Subordinate Judge, Tiruvannamalai dated 20.03.2006 made in A.S.No.36 of 2004 reversing the judgment and decree of the learned Additional District Munsif, Tiruvannamalai dated 10.2.2004 made in O.S.No.224/1999, is set aside. The decree and judgment passed by the Additional District Munsif dated 10.02.2004 made in O.S.No.224 of 1999 shall stand confirmed. The judgment and decree of the learned Principal Subordinate Judge, Tiruvannamalai dated 20.03.2006 made in A.S.No.36 of 2004 reversing the judgment and decree of the learned Additional District Munsif, Tiruvannamalai dated 10.2.2004 made in O.S.No.224/1999, is set aside. The decree and judgment passed by the Additional District Munsif dated 10.02.2004 made in O.S.No.224 of 1999 shall stand confirmed. No costs in the second appeal.