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2015 Supreme(Mad) 1060
HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU, J.
S. Periyasamy – Appellant
Vs.
D. Rajasekar – Respondent
Second Appeal No. 38 of 2015
Decided On : 24-02-2015
For the Appellant:B. Ramesh Babu, Advocate.
Headnote:
Tamil Nadu Court Fees and Suits Valuation Act, 1955 - Section 27(c) - Possession of a shop - Permanent injunction – Claim of compensation - Case of plaintiff is that suit property admittedly belongs to defendant - There was a shop in said suit property and plaintiff was a tenant - Defendant wanted to construct a new building on suit property for which he wanted plaintiff to vacate shop and handover vacant possession - At that time a compromise was reached between parties which resulted in a written agreement - As per said agreement plaintiff agreed to vacate and handover suit property to defendant and defendant in turn had agreed to construct a building and again deliver possession of a shop in newly constructed building in ground floor to plaintiff by way of tenancy – Accordingly plaintiff vacated old building and handed over vacant possession to defendant - Defendant has also constructed a building in suit property – But defendant declined to handover possession of shop in ground floor to plaintiff as per terms of agreement - With these allegations plaintiff has filed present suit seeking relief as extracted herein above – Held, Now turning to maintainability of suit admittedly suit has been filed for mandatory injunction and valued under Section 27(c) of Tamil Nadu Court Fees and Suits Valuation Act, 1955 - According to Courts below suit should have been filed for specific performance by valuing suit under Section 42(c) of Tamil Nadu Court Fees and Suits Valuation Act, 1955 - Regarding this conclusion arrived at by Courts below counsel appearing for appellant would submit that it makes no difference if suit is valued either under Section 27(c) or Section 42(c) of Tamil Nadu Court Fees and Suits Valuation Act, 1955 - This argument of counsel appearing for appellant does not persuade court - Suit for mandatory injunction and a suit for specific performance based on an agreement are totally different and consideration are also different - A decree for specific performance is a discretionary relief and even assuming that agreement is true Court may decline to grant a decree for specific performance and Court may direct to refund all amount already paid under agreement - In a suit for specific performance question whether time is essence of contract and whether suit is barred by limitation from date of refusal or expiry of time fixed in agreement are all matters for consideration - In a suit for mandatory injunction considerations are totally different - A suit for specific performance is specifically governed by Specific Relief Act as well as Courts Fees Act and therefore a suit for mandatory injunction is not proper suit to be filed - On this score Courts below were right in dismissing suit - At any rate in court considered opinion there is no question of law much less a substantial question of law involved warranting admission of this second appeal – Appeal dismissed
The plaintiff in O.S.No.1512 of 2012 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai is the appellant herein. The respondent is the sole defendant in the suit. The said suit has been filed seeking the following relief:
"(a) granting Mandatory Injunction Directing the defendant to perform the agreement dated 23.04.2010 and consequently Directing the defendant to handover the possession of a shop measuring 350 sq.ft. in the suit property in the ground floor. (sic)
(b) granting permanent injunction restraining the defendant or any person claiming right, interest and title under him from alienating or leasing out the suit property."
2. The Trial Court by decree and judgment dated 26.02.2013, dismissed the suit. As against the same, the appellant field an appeal before the learned VII Additional Judge, City Civil Court, Chennai and the lower Appellate Court by decree and judgment dated 28.04.2014 confirmed the decree and judgment of the Trial Court. Aggrieved over the same, the appellant is before this Court with this second appeal.
3. This second appeal has came up today for admission. I have heard the learned counsel appearing for the appellant and perused the records carefully.
4. The case of the plaintiff is that the suit property admittedly belongs to the defendant. There was a shop in the said suit property and the plaintiff was a tenant. The defendant wanted to construct a new building on the suit property for which he wanted the plaintiff to vacate the shop and handover vacant possession. At that time, a compromise was reached between the parties which resulted in a written agreement dated 23.04.2010. As per the said agreement, the plaintiff agreed to vacate and handover the suit property to the defendant and the defendant in turn had agreed to construct a building and again deliver possession of a shop in the newly constructed building in the ground floor to the plaintiff by way of tenancy. Accordingly, the plaintiff vacated the old building and handed over vacant possession to the defendant. The defendant has also constructed a building in the suit property. But, the defendant declined to handover possession of the shop in the ground floor to the plaintiff as per the terms of the agreement. With these allegations the plaintiff has filed the present suit seeking the relief as extracted herein above.
5. The case of the defendant is that it is true that the plaintiff was in possession of the building originally as a tenant. But on the request made by the defendant, the plaintiff vacated the shop and handed over vacant possession to the defendant. The defendant has constructed a building but never he agreed to let out a shop to the plaintiff on rental basis. The agreement dated 23.04.2010, as projected by the plaintiff is false and the same has not been executed by the defendant. At the time when the plaintiff handed over the property to the defendant, as an evidence, he got the signature of the defendant in few papers and now the same has been pressed into service by the plaintiff. Thus, according to the defendant, the agreement dated 23.04.2010 was not at all executed by him and therefore according to him, the suit is liable to be dismissed.
6. Based on the above pleadings, the trial Court framed appropriate issues and on the side of the plaintiff two witnesses were examined and Ex.A1 viz., the agreement has been marked. On the side of the defendant he was examined as D.W.1 and no document was marked. Having considered all the above, the trial Court dismissed the suit and the same was confirmed by the lower appellate Court. Aggrieved over the same, the appellant is before this Court with this second appeal.
7. In this second appeal, the learned counsel appearing for the appellant by referring to the grounds of appeal would submit that the Courts below were not right in holding that the agreement dated 23.04.2010 is not genuine. The learned counsel would further submit that the findings of the Court
