Back
2014 Supreme(Mad) 4205
High Court of Judicature at Madras
S. TAMILVANAN, J.
M/s. Sivapriya Constructions, Rep. by its Partner
Versus
P.T. Metilda Prema Devaraj & Others
C.R.P (PD).No. 2477 of 2013 & M.P. No. 1 of 2013
Decided on: 21-11-2014
For the Petitioner:A.R.L. Sundaresan, Senior counsel for R. Bharath Kumar, Advocate.
For the Respondents:R1 to R3, R. Gandhi, Senior counsel for M/s. Giridhar & Sai, R4 to R11, V. Ayyappa Raja Advocates.
Headnote:
Civil Procedure Code - Section 115 - Seeking permanent injunction - Construction in suit property - Possession and enjoyment of property - Senior counsel appearing for revision petitioner submitted that suit filed itself is not legally maintainable since main relief sought for in suit is only an interim relief pertaining to another suit filed by same party – Suit filed by respondents 1 to 3 herein seeking permanent injunction against defendants in suit – However revision petitioner herein was not arrayed as one of defendants in suit - Relief of declaration sought for in other suit is to declare that a registered Will executed father of respondents 1 to 3 in favor of defendants 2, 3 and 5 to 7, as per Document on file of Sub-Registrar as null and void and also consequential permanent injunction against defendants 1 to 4 therein their men agents etc from in any manner interfering and disturbing with alleged possession and enjoyment of property by respondents 1 to 3 herein though it was contended on behalf of Revision petitioner that respondents 1 to 3 were not in possession and enjoyment of property on date of filing of suit – Held, Had respondents 1 to 3/plaintiffs been in possession they could have obtained interim injunction only in that suit by way of filing Interlocutory Application and they are not entitled to file another suit before same Court seeking interim prayer in name of permanent injunction till disposal of earlier suit - It is an undisputed fact that revision petitioner having purchased property from sons and others pursuant to Will executed in favor of said vendors - Revision petitioner got transfer plan approval for construction of multi-storied building and started construction which was nearing completion even on date of filing of suit as per photocopies produced - Though is not a document of title construction of building in a major portion of property shows that respondents 1 to 3 were not in possession and enjoyment of property even on date of filing of suit - On said facts and circumstances Senior counsel appearing for revision petitioner submitted that revision petitioner has no objection in respect of other portion being allotted by mutual understanding between respondents 1 to 3 and their brothers and other legal heirs who are vendors of Revision petitioner herein if any prayer is incorporated in suits by respondents 1 to 3 for partition and separate possession in manner known to law - It is also open to both parties to amicably settle matter if respondents 1 to 3/plaintiffs are entitled to any share on equity or by getting compensation from their brother according to law – However same has to be decided only by Courts below – Here it is crystal clear that impugned order directing to maintain status quo till disposal of suit where prayer is permanent injunction till disposal of earlier suit would show that Courts below had exercised a jurisdiction not vested in them and also failed to exercise jurisdiction so vested even based on undisputed facts of case on said facts and circumstances this Court is of view that interference is warranted under Section 115 of Code of Civil Procedure to meet ends of justice - Civil Revision Petition is allowed
1. As per order passed in the Review Application in Rev.Apln.No.190 of 2013, dated 21.11.2014, the order, dated 18.09.2013 passed in C.R.P (PD).No.2477 of 2013 is set aside and the Revision Petition is restored to file and having considered the arguments advanced by the learned Senior counsel for either side, fresh order is being passed in this Civil Revision Petition on merits.
2. It is seen that the Civil Revision has been preferred by M/s. Sivapriya Constructions, the revision petitioner herein under Section 115 of the Code of Civil Procedure against the Judgment and Decree, dated 26.06.2013 made in C.M.A.No.13 of 2013 on the file of the Court of Subordinate Judge, Poonamallee, confirming the fair and decretal order, dated 02.03.2013 made in I.A.No.66 of 2013 in O.S.No.26 of 2013 on the file of the Additional District Munsif, Poonamallee.
3. The suit in O.S.No.26 of 2013 was filed by the respondents 1 to 3 against the revision petitioner and 8 others, seeking permanent injunction restraining the defendants, their men, agents or servants from putting up any further construction in the suit property, pending disposal of another suit in O.S.No.270 of 2012 and other consequential reliefs.
4. Mr. AR.L. Sundaresan, learned Senior counsel appearing for the revision petitioner submitted that the suit filed in O.S.No.26 of 2013 itself is not legally maintainable, since the main relief sought for in the suit is only an interim relief, pertaining to another suit in O.S.No.270 of 2012 filed by the same party. The suit in O.S.No.270 of 2012 was filed by the respondents 1 to 3 herein, seeking permanent injunction against the defendants in the suit. However, the revision petitioner herein was not arrayed as one of the defendants in the suit. The relief of declaration sought for in the other suit is to declare that a registered Will, dated 11.03.1991 executed by late Paul Thangadurai, father of the respondents 1 to 3 in favour of the defendants 2, 3 and 5 to 7, as per Document No.16/1991 on the file of the Sub-Registrar, Poonamallee, as null and void and also consequential permanent injunction against the defendants 1 to 4 therein, their men, agents etc., from in any manner interfering and disturbing with the alleged possession and enjoyment of the property by the respondents 1 to 3 herein, though it was contended on behalf of the Revision petitioner, that the respondents 1 to 3 were not in possession and enjoyment of the property, on the date of filing of the suit.
5. The suit in O.S.No.26 of 2013 is admittedly a subsequent suit filed by the respondents 1 to 3 herein against 9 defendants, including the revision petitioner herein, seeking permanent injunction restraining the revision petition and other defendants from putting up any further construction in the suit schedule property till the disposal of the other suit filed in O.S.No.270 of 2012. The Sub-Registrar, Poonamallee, 8th defendants in the suit in O.S.No.270 of 2012 was not arrayed as one of the defendants in the subsequent suit in O.S.No.26 of 2013, however, two other defendants have been added as parties to the suit.
6. As contended by Mr. AR.L. Sundaresan, learned Senior counsel appearing for the revision petitioner herein, the respondents 1 to 3, being plaintiffs in the earlier suit in O.S.No.270 of 2012, should have impleaded the revision petitioner herein and sought interim injunction in respect of possession and enjoyment of the property, till the disposal of the said suit in O.S.No.270 of 2012. However, as they could not get interim injunction in the said earlier suit, they filed the subsequent suit in O.S.No.26 of 2013, by impleading the petitioner and others and sought interim injunction till the disposal of the earlier suit in O.S.No.270 of 2012, which is contrary to law. Only for the purpose of getting an interim relief, no one can file an independent suit, seeking interim injunction till the disposal of the other suit, stating it as permanent injunction, however,
