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2012 Supreme(Mad) 4062
High Court of Judicature at Madras
P.R. SHIVAKUMAR
Palayammal
Versus
I. Dhanamma & Others
S.A.No.87 of 2012 & M.P.No.1 of 2012
Decided On : 05-10-2012
Advocate Appeared:
For the Appellant:S. Parthasarathy, Senior counsel for R. Murugan, Advocate.
For the Respondents:P.B. Ramanujam, Advocate.
Ratios
a. After the possession of a property was recovered through the Court in a legal proceeding and it was also recorded by the executing Court, if the party who got possession was again dispossessed by the same party, separate suit could be filed for recovery of possession.
b. A suit for injunction filed by a party to save his possession except by a due process of law would not prevent the defendant in that suit from filing another suit against that plaintiff for recovery of possession.
Headnote:(A)Specific Relief Act, 1963(47 of 1963)-Sec.6-Code of Civil Procedure, 1908(5 of 1908)-Sec.11-Property-Possession-Recovery-Dispossession-Suit-Maintainability-Injunction-In a suit for eviction instituted by the respondents, the appellant was evicted through the Court-After such eviction was completed and it was recorded by the Court, the appellant had trespassed into the property and occupied it for which the respondents filed a separate suit praying for recovery of possession and damages-When the trial Court had decreed the suit and the appeal was also dismissed, appellant filed second appeal-While the appellant contended that, remedy for the respondent was only to approach the executing Court and not a fresh suit and the suit for injunction filed by him created bar on the respondents from filing a suit seeking recovery of possession in respect of the same property, respondents resisted it-Held, there could not be any injunction against a person from approaching the Court seeking relief-Once delivery was completed and it was recorded by the executing Court, execution proceeding came to an end and for subsequent dispossession, separate suit could be filed-Appeal was dismissed and the decree and judgment of the trial Court was upheld.
(B)Specific Relief Act, 1963(47 of 1963)-Sec.6-Code of Civil Procedure, 1908(5 of 1908)-Sec.11-Property-Possession-Recovery-Dispossession-Suit-Maintainability-Injunction- After the possession of a property was recovered through the Court in a legal proceeding and it was also recorded by the executing Court, if the party who got possession was again dispossessed by the same party, separate suit could be filed for recovery of possession.
But such an opportunity will be available to the decree holder if such disposition is made before recording delivery (execution of the decree) and termination of the execution proceedings. Once the execution proceeding is terminated recording the execution of the decree, thereafter, it is doubtful whether the decree holder can file a second execution petition for the very same relief. But there cannot be any semblance of doubt that if any wrong is committed by the judgment debtor in respect of the subject matter of the decree after the execution of a decree or order that will give rise to a cause of action for a new suit. Therefore, the contention of the appellant that the suit is not maintainable and the remedy available to the plaintiff is to initiate execution proceedings for executing the eviction order passed by the rent controller has got to be rejected as untenable. Para 10
(C)Specific Relief Act, 1963(47 of 1963)-Sec.6-Code of Civil Procedure, 1908(5 of 1908)-Sec.11-Property-Possession-Recovery-Dispossession-Suit-Maintainability-Injunction-A suit for injunction filed by a party to save his possession except by a due process of law would not prevent the defendant in that suit from filing another suit against that plaintiff for recovery of possession.
Simply because an alleged trespasser files a suit for injunction against the person claiming to be the owner and an injunction is granted not to disturb his possession otherwise than by due process of law, the same will not be a bar for the suit filed by the person claiming to be the owner based on the alleged trespass praying for recovery of possession and damages for use and occupation. In fact, there cannot be any valid injunction against a person from instituting a suit for recovery of possession of a property claimed by him to be his own against the alleged trespasser. No injunction can be granted against any person from seeking remedy in a Court of law by adopting due process of law. Para 11
The fourth defendant in the original suit is the appellant in the second appeal. The suit was originally filed by the deceased first plaintiff Jacob for recovery of possession and damages for use and occupation in respect of the suit property, namely the building bearing Door No.20/1, Perumal Koil Garden, 6th Lane, Sowcarpet, Madras 600 079 comprised in Old S.No.3668 and ReS.No.7854. The suit was filed against all the 7 respondents arraying them as Defendants 1 to 7. The first respondent/first defendant Muthammal is the mother of the other respondents, namely Defendants 2 to 7. Contending that Muthammal was the tenant in respect of the suit property and other defendants being members of the same family were residing together with the first defendant Muthammal; that following due process of law, the deceased first plaintiff Jacob filed a Rent Control Original petition before the Rent Controller, got an order of eviction, executed the eviction order and thus got delivery of possession of the suit property on 04.05.1994 and that within a day thereafter, namely on 05.05.1994, the defendants trespassed into the property, the deceased first plaintiff Jacob filed the suit in O.S.No.8663 of 1994 for recovery of possession and also for recovery of damages for use and occupation at the rate of Rs.50/- per day.
2. After the filing of the suit and before its disposal, the original plaintiff Jacob died and his legal representatives Dhanamma, Jaya, Anitha and Prabhakaran got impleaded as plaintiffs 2 to 5. Subsequently Prabhakaran died and the surviving plaintiffs being his legal heirs perused the remedy sought for in the suit by the original plaintiff. Among the seven defendants, the present appellant, who figured as fourth defendant, alone contested the suit and rest of the defendants remained exparte. The appellant, who happened to be the only contesting defendant, filed a very short written statement contending that the other defendants, namely defendants 1 to 3 and 5 to 7 were not necessary parties; that the suit was barred under Section 47 and 144 of the Civil Procedure Code; that the trial Court did not have the jurisdiction to grant the relief of damages; that regarding the very same property, two previous suits, namely O.S.No.3823 of 1994 and O.S.no.5594 of 1994 had been filed by the 4th defendant and that the present suit, being a vexatious and frivolous one, was liable to be dismissed with exemplary cost.
3. Based on the above said pleadings, the trial Judge framed four issues which are as follows:
1. Whether it is true that the respondents have trespassed into the suit property and are in possession of the same?
2. Whether the respondents are bound to vacate and hand over vacant possession of the suit property to the plaintiff as prayed for in the plaint?
3. Whether the plaintiff is entitled to claim damages?
4. To what relief the plaintiff is entitled?
4. In the trial that was conducted before the trial Court, the second plaintiff figured as the sole witness (PW1) and six documents were marked as Exs.A1 to A6 on the side of the plaintiffs. The appellant/4th defendant figured as the sole witness (DW1) and produced 5 documents as Exs.B1 to B5 on her side.
5. The learned trial Judge, at the conclusion of trial, considered the evidence, both oral and documentary, in the light of the points convassed on both sides by the respective counsel in their arguments and upon such consideration, answered the Issues 1 and 2 in favour of the plaintiffs. So far as the third issue is concerned, the learned trial Judge held that the defendants were liable pay damages for use and occupation, but however chose to award damages for use and occupation only the period subsequent to the date of decree at the rate of Rs.40/- per month as against Rs.50/-per day claimed by the plaintiffs.
6. Aggrieved by and challenging the decree passed by the trial Court directing delivery of vacant possession and also payment of damages for use and oc
