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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN
A. Shanmugasundara Pandia Nadar & Another
Versus
Raja Vaithialingam
C.M.A. No. 749 of 1991
Decided On :Decided on : 06-09-1991
CIVIL PROCEDURE - SUIT - MAINTAINABILITY - ORDER OF HIGH COURT CONFIRMED BY SUPREME COURT - SUBSEQUENT SUIT CHALLENGING THE ORDER - NOT MAINTAINABLE - INTERIM RELIEF - INJUNCTION - CANNOT BE GRANTED AGAINST LAWFUL ACT - BALANCE OF CONVENIENCE - NOT IN FAVOUR OF PLAINTIFF.
Fact of the Case:
The plaintiff, Raja Vaithialingam, filed a suit in the High Court of Madras challenging an order passed by the High Court in a civil revision petition. The order had directed the 34 members of the Administrative Council of the Dakshinamara Nadar Sangam, Tirunelveli, to hand over charge to the petitioners in the revision petition. The plaintiff claimed that the order was not binding on him and his colleagues in the Administrative Council and sought a declaration to that effect and a consequential injunction restraining the petitioners from interfering with the peaceful possession and management of the Sangam.
Finding of the Court:
The High Court held that the suit was not maintainable and that the plaintiff was not entitled to an interim injunction. The Court observed that the order passed in the civil revision petition had been confirmed by the Supreme Court and that it was not open to the plaintiff to challenge the order again in a subsequent suit. The Court further held that an injunction could not be granted against a lawful act and that the balance of convenience was not in favour of the plaintiff.
Issues: 1. Whether the suit filed by the plaintiff was maintainable? 2. Whether the plaintiff was entitled to an interim injunction?
Ratio Decidendi: 1. The suit was not maintainable because the order passed in the civil revision petition had been confirmed by the Supreme Court and it was not open to the plaintiff to challenge the order again in a subsequent suit. 2. The plaintiff was not entitled to an interim injunction because an injunction could not be granted against a lawful act and the balance of convenience was not in favour of the plaintiff.
Final Decision: The High Court allowed the civil miscellaneous appeal and set aside the order of the lower court granting an injunction in favour of the plaintiff.
(i) When this appeal was admitted on 14.8.91, Mr. K. Sridhar appearing as Senior Counsel to the Advocates on record prayed for time to file counter. He prayed for four weeks time and contended that no interim order should be passed. That request was opposed by learned counsel for the appellants. Hence I granted two weeks time for filing counter and it was agreed at that time by all counsel that the appeal would itself be heard on the adjourned date. The matter was adjourned by two weeks without any interim order of stay. But, it was not posted on the expiry of two weeks. It was posted in the list only on 3.9.91. On that day, Mr. Sridhar appearing for the respondents as Senior counsel prayed for further adjournment on the ground that an application has been filed before the Supreme Court of India for clarification of its order in S.L.P. No. 14222 of 1990 and that the same stood posted to 16.9/1991. He wanted adjournment of this matter till 17.9.1991. I refused to grant adjournment reminding him of what was agreed to on 14.8.91. As he was not ready to argue the matter, I granted him time till 2.15 PM today. The matter was specifically posted to 2.15 PM today and counsel were directed to get ready for argument.
(ii) This morning Mr. S.K. Sundaram appearing for the respondents prayed for adjournment. I refused to grant it. He states that he went to the Chief Justice and made a representation for transferring the case to some other Judge. When the matter was called at 2.15 PM he made a reference to his request to the Chief Justice and prayed for further time. So far there is no order of the Chief Justice transferring the matter from my file to another Judge. In view of the recent judgment of the Division Bench of this Court, the Chief Justice has no jurisdiction to transfer the matter to any other Judge, when it is posted in one list. Whatever it may be there is no order of transfer till now.
(iii) I proceeded to hear Mr. V. Sridevan, Senior Counsel appearing for the appellants. He finished his arguments at 3.15 PM. When I called Mr. S.K. Sundaram to argue for the respondent, he represented that he had not gone through the records and he wanted time till Monday. I refused to adjourn the matter. Then he modified his request and prayed for adjournment till tomorrow, so that he can go through the records. Reluctantly, I adjourn the matter till 10.30 AM tomorrow. No further time will be granted. The matter shall be posted as the first case above motion cases tomorrow at 10.30 AM for further hearing, and marked part heard. 6.9.1991: This matter was heard in part yesterday. After hearing counsel for the appellants, I passed an order stating the reason for my adjourning the matter till this morning at the request of Mr. S.K. Sundaram, Advocate. My order of yester-date shall also be annexed to the present order and both must be read together as one order.
2. When the matter was called this morning, A. Bobbilas and K. Murugan, who are counsel on record represented that they had given their consent for change of vakalat on 3.9.1991 itself. Mr. S.K. Sundaram represented that he filed vakalat for the respondent yesterday. So far the vakalat has not come to the file.
3. Mr. S.K. Sundaram represented that he has been instructed by his clients to pray for two weeks adjournment on the ground that they want to bring a senior counsel from Delhi to argue this matter. I refused to adjourn the matter.
4. He raised objections to my hearing the appeal. Those objections are: (1) I had already disposed of C.R.P. No. 2308 of 1990 in which I had held against the respondent herein and I should not hear the present matter; (2) An objection was raised by then counsel on record that the appeal should not be posted before me for admission (3) I am empowered by the Chief Justice to dispose of only C.M.Ps. and not main matters. Hence, I should not hear the C.M.A.; (4) Mr. S.K. Sundaram stated that he made a representation to the Chief Justice yesterday that
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