Madras High Court
V.Kavurajan vs K.N. Perumal (Died) on 6 April, 2023
C.M.A.(MD).No.175 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.175 of 2018
and
C.M.P(MD) No.2608 of 2018
1. V.Kavurajan
2. K.Ganesan .....Appellants/Petitioners/Plaintiffs
-vs-
1. K.N. Perumal (died)
2. A.Alagammal
3. N.Krishnan
4. Muniyasamy
5. Muthukrishnan
6. Mariyammal
7. Rajammal
8. Marichamy
9. Petchiammal
10. Veeramuthammal .... Respondents/ Respondents/ Defendants
11. Kandasamy
12. Alagammal
13. Jothi Lakshmi .... Respondents
(Respondents 11 to 13 are brought on record as
Legal heirs of the deceased first respondent vide
order of this Court, dated 27.03.2023
made in C.M.P(MD) No.6371 of 2022 in
C.M.A(MD) No.175 of 2018)
https://www.mhc.tn.gov.in/judis
1/8
C.M.A.(MD).No.175 of 2018
PRAYER: Civil Miscellaneous Appeal filed under Order 43, Rule 1 (r) of
C.P.C, against the order made in I.A.No.249 of 2016 in O.S.No.59 of 2016,
dated 09.02.2018 on the file of the Principal District and Sessions Judge,
Virudhunagar District at Srivilliputhur.
For Appellants : Mr.M.Thirunavukkarasu
For Respondents : Mr.H.Arumugam
for Thangamani – for R2 to R4,
and R6 to R13
: No appearance – for R5
: R1 - died
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the plaintiffs
in a suit for specific performance challenging the order of dismissal of his
application seeking interim injunction not to alienate the suit property
pending suit.
2. The appellants herein had filed O.S.No.59 of 2016 on the file of the
Principal District and Sessions Court, Virudhunagar District at Srivilliputhur,
for the relief of specific performance of an agreement, dated 26.01.2008 and
the cash receipt, dated 07.03.2008 said to have been executed by the
defendants in the suit along with the suit. The plaintiffs had filed I.A.No.249
of 2016 seeking prayer for interim injunction as against the defendants not to
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.175 of 2018
alienate the property pending suit. In the said application, the plaintiffs had
contended that the defendants had attempted to alienate the property through
real estate brokers.
3. The defendants have filed a counter contending that the receipt of the
amount is not towards sale consideration and the document was not executed
as a sale agreement. The plaintiffs by playing fraud upon the defendants,
managed to obtain the said sale agreement and the cash receipt.
4. The Trial Court without going into the issue whether the defendants
are attempting to alienate the property or not, had considered the dispute and
found that the plaintiffs have not made out a prima facie case for grant of
interim injunction and dismissed the said application. Challenging the said
order, the present appeal has been filed by the plaintiffs.
5. According to the learned counsel appearing for the plaintiffs, the
property is alienated pending suit, and the third party interest would cause
great prejudice to the plaintiffs. The said aspect was not at all considered by
the trial Court while dismissing the application of the interim injunction. The
learned counsel appearing for the appellants had further contended that
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.175 of 2018
nowhere the defendants have disputed the fact that they are attempting to
alienate the property. Therefore, the allegation of the plaintiffs remains
uncontroverted and the trial Court ought to have granted the prayer for
interim injunction.
6. Per contra, the learned counsel appearing for the
respondents /defendants had contended that unless the plaintiffs make out a
prima facie case, the balance of convenience and irreparable injury would be
caused in case of non-granting of interim order and the trial Court cannot
grant interim injunction in favour of the plaintiffs. In the present case, the
trial Court after considering the pleadings and submissions made on either
side, has arrived at a finding that the plaintiffs have not established the prima
facie case in their favour or balance of convenience in their favour. Therefore,
there is no infirmity in the order passed by the trial Court.
7. I have carefully considered the submissions made by the learned
counsel on either side.
8. The plaintiffs had filed a suit for specific performance relying upon
an agreement, dated 26.01.2008 and the cash receipt, dated 07.03.2008. These
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.175 of 2018
two documents, though the defendants admitted the receipt of the amount, it
is the contention of the defendants that it is the loan amount and it was not
received towards sale consideration. He further contends that the said loan
amount was also repaid and the sale agreement was executed only as security
for the loan amount.
9. It is settled position of law that any alienation that is effected
pending suit, is always subject to the result of the suit. Therefore, the subject
the result of the said suit is hit by Section 52 of the Transfer of Property Act.
Therefore, even without any order of interim injunction, any alienation made
by the defendants would always be subject to the result of the specific
performance suit.
10. The learned counsel appearing for the appellants had submitted that
there was an order of interim injunction passed by this Court, on 20.03.2018
and the same was in force for the past five years. If the Civil Miscellaneous
Appeal is disposed of without granting any interim order, the respondents are
likely to alienate the property. He further contended that in view of the time
limit to dispose the Suit, the respondents may be injuncted from alienating the
property till the disposal of the suit. However, the learned counsel appearing
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.175 of 2018
for the respondents had contended that the plaintiffs/appellants have not
made out a prima facie case.
11. Considering the fact that there was an order of interim injunction
for the past five years and the time limit is being fixed by this Court to
dispose of the suit and also to avoid multiplicity of the proceedings, this court
is inclined to direct the respondents to maintain status quo till the disposal of
the suit.
12. In view of the above said facts, this Civil Miscellaneous Appeal is
disposed of, with a direction to the trial Court to dispose of the suit in
O.S.No.59 of 2016 on or before 31.12.2023. Both the parties are directed to
co-operate for early disposal of the suit. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
06.04.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
Note: Issue order copy on 13.04.2023
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.175 of 2018
To
1. The Principal District and Sessions Judge,
Virudhunagar District at Srivilliputhur.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.175 of 2018
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.175 of 2018
06.04.2023
https://www.mhc.tn.gov.in/judis
