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2011 Supreme(Mad) 4471
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
First
Versus
Second
O.A.Nos.865 & 866 of 2011 & A.No.5189 of 2011 in C.S.No.700 of 2011
Decided On :Decided on : 15-11-2011
The court emphasized the need for objective satisfaction before calling upon the defendant to furnish security for production of property and highlighted the requirement for plaintiffs to satisfy the court that all the ingredients specified in Order 38 Rule 5(1) CPC exist before their application can be allowed.
Headnote:
GARNISHEE - Partition Suit - Order 21 Rule 46, 46(A), 46(B), 46(C), 46(D), 46(E), 46(F) & 46(G, Order 38 Rule 5 CPC - The court dismissed the applications for interim injunction, appointment of Advocate Receiver, and direction to deposit rents in court, finding them to be misconceived and pressure tactics to harass defendants in a suit for partition.
Fact of the Case:
The plaintiffs filed a suit for partition of a property and sought recovery of rent, reduction of account, and injunction against alienation, charging, or encumbering the property. The suit suffered from mis-joinder of party as tenants were impleaded as defendants.
Finding of the Court:
The court found the applications to be misconceived and motivated with ulterior motive to harass defendants from collecting rent. It held that the plaintiffs did not approach the court with clean hands and failed to prove a prima facie case or balance of convenience in their favor.
Issues: Mis-joinder of party, misuse of court process, lack of clean hands, failure to prove prima facie case or balance of convenience.
Ratio Decidendi: The court applied Order 21 Rule 46 and Order 38 Rule 5 of the Code of Civil Procedure and emphasized the need for objective satisfaction before calling upon the defendant to furnish security for production of property. It also highlighted the requirement for plaintiffs to satisfy the court that all the ingredients specified in Order 38 Rule 5(1) CPC exist before their application can be allowed.
Final Decision: The court dismissed all the applications, stating that the plaintiffs approached the court with ulterior motives and failed to prove their case. It also emphasized that the applications did not disclose any ground for protection of the plaintiffs' interest pending suit.
VINOD K.SHARMA, J.,
1. This order shall dispose off O.A.Nos.865 and 866 of 2011 and A.No.5189 of 2011 in C.S.No.700 of 2011, praying therein as under:
i) O.A.No.865 of 2011– To grant interim injunction, restraining the respondents 2, 3 and 4 as well as the first respondent and respondents 5 to 11 from collecting rents as well as enhanced rents if any and additional advances from respondent Nos.12 to 25, they being the tenants in the suit property Nos.159 and 160, T.T.K. Road, Alwarpet, Chennai
– 600 018, more particularly described in the schedule, pending disposal of the suit.
ii) O.A.No.866 of 2011– To appoint an Advocate Receiver to collect, from the 12 to 25 respondents/Garnishees, the monthly rents being paid by them to respondents/defendants 1 to 11, as tenants in the suit schedule property and more particularly described in schedule, in respect of the portions occupied by them therein and to deposit the said amount into this Court of the above suit after deducting the statutory dues like property tax etc., pending disposal of the suit.
iii) A.No.5189 of 2011– To direct the 12 to 25 respondents/Garnishees, who are occupying as tenants in different portions of the suit schedule property and more particularly described in the schedule to deposit every month into this Court, the monthly rents being paid by them to the third respondent or respondents 1, 2 and 4 to 11, pending disposal of the application for appointment of an Advocate Receiver in the suit.
2. The applicants/plaintiffs filed a suit for partition by metes and bounds of the property bearing Old No.71, New Nos.159 and 160, T.T.K. Road, Alwarpet, Chennai. Each of the plaintiffs claimed 1/4th share in the half share of their late father R.Velayudham. The prayer is also made for recovery of Rs.1,32,618/- (One Lakh Thirty Two Thousand Six hundred and Eighteen only) from defendants 1 to 4, towards plaintiffs share out of the rent in respect of portion occupied for the month of May, June and July 2011 and for 50% share in the rental income with respect to the suit premises from August 2011 onwards. The plaintiffs also prayed for retention of accounts of the income derived from family business for a period of three years, prior to filing of suit and payment of their share.
3. Consequential relief has been prayed for permanent injunction, restraining defendants from alienating in any manner charging or encumbering the suit property as detailed in the schedule.
4. The reading of the plaint shows that the specific prayer in the suit is for recovery of specified amount and for reduction of account, and the injunction prayed is only with regard to alienation, charging or encumbering of suit property.
5. In paragraph-12 of the plaint, the details of tenants have been given by pleading therein that third defendant is collecting the entire rental income from the suit property. The plaintiffs claim 50% share from the suit property for which a notice was said to have been issued to the tenants, calling upon them not to pay rent to defendants 2 to 4, but inspite of notice, tenants continue to pay rent to defendant no.3, thus, it would be seen that defendant nos. 12 to 25 have been impleaded as defendants merely being tenants.
6. The suit, therefore, prima facie suffers from mis-joinder of party, as tenants cannot be impleaded as party. Even if the object of the impleading defendant nos. 12 to 25 is as garnishees, still the suit is bad for non-joinder of parties.
7. Order 21 of the Code of Civil Procedure deals with execution of decrees and orders. It is under the provisions of Order 21 Rule 46, 46(A), 46(B), 46(C), 46(D), 46(E), 46(F) & 46(G), that order can be passed in execution of decree in a pending suit. The only provisions to secure the claimed amount is governed under Order 38 Rule 5 of the Code of Civil Procedure, which reads as under:
"5. Where defendant may be called upon to furnish security for production of property
(1) Where, at any stage of a suit,
