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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. PONGIAPPAN, J.
R. Karmegam –Appellant
Versus
M. Hariharasudhan – Respondent
A.S. (MD) No. 143 of 2018, C.M.P. (MD) No. 7708 of 2018
Decided On : 29-03-2019
Civil Procedure Code,1908 - Sections 9,96 - Order 1- Rule 13 - Punjab Municipal Act - Sections 84 and 86 - Limitation Act,1963 - Article 72 to 91,14,113 - Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 - Section 10,11 - Rule 4 - Suit for damages and compensation - Courts to try all civil suits unless barred - land to an extent of square feet vide sale deed -Property purchased by plaintiff lies on north of his fathers property adjoining to it - In said property plaintiff started construction in year - While so first defendant put up construction in front of plaintiffs property and thereby obstructing ingress and egress of property of plaintiffs father from main road - Plaintiffs father has filed a suit against first defendant for relief of injunction restraining first defendant from putting up any construction obstructing free access to his property - Principal District Munsif Madurai passed an order of status quo and after knowing details of said order first defendant hurriedly completed construction without obtaining plan approval from local bodies - On knowing this Electricity Board has disconnected service connection - Thereafter plaintiff legally took steps to demolish building constructed by first defendant which was situated in national highways - For his construction plaintiff purchased marbles and granites for and kept in front of his fathers property - Aggrieved with filing of suit first defendant at about a.m along with henchman came in a Nissan car and has then pulled down and demolished materials which was collected by plaintiff for construction purpose - For said reasons plaintiff preferred a complaint before SS Colony police station and case has been registered against first defendant - First defendant caused extensive damage to property of plaintiff to tune of - Due to heavy lose plaintiff is not in a position to complete construction - Defendants again damaged show-case glass by pelting stones and by driving car into hotel and damaged automatic glass door etc - Defendants trespassed into hotel and took away cash of more than Lakh - In order to restore original position plaintiff was forced to spend huge amount and for injuries sustained to employees he has spent towards medical expenses - Hence suit - Whether suit is maintainable in view of alternative remedy available in TNPPDL Act? Whether suit is bad for non-joinder of necessary party? Whether suit is premature and whether any cause of action is available for filing suit? - Whether period of limitation will commence from date of judgment of criminal court or from date of occurrence - Question then arises whether civil court would be justified in entertaining suit and issue injunction as prayed for ?Held, Section 9 of CPC provides that civil court shall try all suits of civil nature subject to pecuniary jurisdiction unless their cognizance is expressly or by necessary implication barred - Such suit would not be maintainable - It is true that ordinarily civil court has jurisdiction to go into and try disputed questions of civil nature where fundamental fairness of procedure has been violated - Statutory circulars adumbrated above do indicate that a fundamental fairness of procedure has been prescribed in rules and is being followed - By necessary implication cognizance of civil cause has been excluded - As a consequence civil court shall not be justified in entertaining this suit and giving declaration without directing party to avail of remedy provided under Indian Electricity Act and instructions issued by Board - Courts to try all civil suits unless barred - Courts shall have jurisdiction to try all suits of a civil nature expecting suits of which their cognizance is either impliedly or explicitly barred - It is well settled that where a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner vs. State of Karnataka etc - Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company - Hence by implication all other methods are barred - All objections on ground of non-joinder or mis-joinder of party shall be taken at earliest possible opportunity during and in all cases where issues are settled at or before such settlement - Unless ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived - So said provision is very clear in respect to submission made by learned counsel appearing for appellants that he has to raise said plea at time of filing written statement itself - Accordingly due to non-inclusion of other accused as a party to suit is no way affected case of plaintiff - Appeal Allowed
JUDGMENT :
R. PONGIAPPAN, J.
Prayer: This Appeal suit is filed under Section 96 of the Civil Procedure Code, to set aside the judgment and decree rendered in O.S. No. 186 of 2016 dated 03.04.2018 on the file of the Additional District Judge, Madurai and allow this appeal awarding damages as claimed.
1. The unsuccessful defendants in O.S. No. 186 of 2016 are the appellants herein. The respondent/plaintiff filed the suit before the learned First Additional District Judge, Madurai seeking the relief to direct the defendants to pay a sum of Rs. 25,00,000/- towards damages and compensation to the plaintiff with interest at the rate of 12% p.a. from the date of plaint till the date of realization with costs. By judgment and decree dated 03.04.2018 the learned First Additional District Judge, Madurai partly allowed the suit and directed the appellant/defendants to pay a sum of Rs. 18,28,941/- along with interest at the rate of 9% p.a. from the date of the suit till realization, with proportionate cost of the suit. Aggrieved over the said findings, the appellants/defendants filed the appeal and seeking the relief to set aside the judgment and decree passed on 03.04.2018.
2. For the sake of convenience, the parties are referred to as, as described by the trial Court.
3. The averments made in the plaint, in brief, are as follows:
The plaintiff is running a hotel under the name and style of Hotel Gowri Krishna at Bye Pass Road, Madurai. He purchased the land to an extent of 5160 square feet vide sale deed dated 19.11.2012. The property purchased by the plaintiff lies on the north of his father's property adjoining to it. In the said property, the plaintiff started construction in the year 2014. While so, the first defendant put up the construction in front of the plaintiff's property and thereby obstructing the ingress and egress of the property of the plaintiff's father from main road. The plaintiff's father has filed a suit in O.S. No. 783 of 2014 against the first defendant for the relief of injunction restraining the first defendant from putting up any construction obstructing free access to his property. The learned Principal District Munsif, Madurai on 22.12.2014 passed an order of status quo and after knowing the details of the said order, the first defendant hurriedly completed the construction without obtaining plan approval from the local bodies. On knowing this, the Electricity Board has disconnected the service connection. Thereafter, the plaintiff legally took steps to demolish the building constructed by the first defendant which was situated in the national highways. For his construction, the plaintiff purchased the marbles and granites for Rs. 2,27,065/- and kept in front of his father's property. Aggrieved with the filing of the suit, the first defendant on 24.07.2015 at about 10 a.m. along with henchman came in a Nissan car and has then pulled down and demolished the materials, which was collected by the plaintiff for the construction purpose. For the said reasons, the plaintiff preferred a complaint before the SS Colony police station and the case has been registered against the first defendant. The first defendant caused extensive damage to the property of the plaintiff to the tune of Rs. 2,27,065/-. Due to heavy lose, the plaintiff is not in a position to complete the construction. The defendants again damaged the show-case glass by pelting stones and by driving car into the hotel and damaged the automatic glass door etc. The defendants 2 and 3 trespassed into the hotel and took away the cash of more than Rs. 1 Lakh. In order to restore the original position, the plaintiff was forced to spend huge amount and for the injuries sustained to the employees, he has spent Rs. 73,000/- towards medical expenses. Hence, the suit.
4. The averments made in the written statement filed by the defendants, in brief, are as follows:-
There is no cause of action for the suit. The suit is barred by statute. In earlier, the disputed property or
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