Madras High Court
S.Jai Krishnan vs Jimmi Carter on 22 December, 2023
S.A.No.1277 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2023
CORAM
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.1277 of 2007 and
C.M.P.Nos. 7580 and 7584 of 2023
S.Jai krishnan ...Appellant
Vs.
1. Jimmi Carter
2. The Commissioner
Nagapattinam Municipality
Kadambadi, Nagapattinam ...Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the decree and judgment dated 28.09.2007 made in
A.S.No.24 of 2007 on the file of the Subordinate Judge, Nagapattinam, in
reversing the decree and judgment dated 06.02.2007, made in
O.S.No.340 of 2005 on the file of the District Munsif Court,
Nagapattinam.
For Appellants : Mr.G.Ethirajulu
For Respondents : Mr.Mr.S.Raghu for R1
: Mr.P.A.Srinivas for R2
1/21
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S.A.No.1277 of 2007
JUDGMENT
The instant second appeal has been filed at the instance of the first
defendant.
2. For the sake of convenience, the parties will be referred to
according to their litigative status before the Trial Court.
The brief facts, which give rise to this second appeal are as
follows:
3. According to the Plaintiff, he is the owner of the suit
property comprised in S.No.2199, 22/1 in Block N.41, Ward No.4 in
Nagapattinam. The first defendant has purchased a house on the western
side of the above said property in S.No.2200. The first defendant's house
was adjacent to the plaintiff's main wall, in which the roof of the plaintiff
was resting. The first defendant has made an arrangement to remove the
tiled roof and to put up RCC construction. Since the house of the plaintiff
is very old, and the western main wall is made up of clay and mud, he
requested the first defendant not to raise pillars nearer to the plaintiff's
western main wall, and also requested him not to have any window on the
eastern wall of his house, as the same would endangers the privacy of the
plaintiff. It was the specific submission of the plaintiff that, at the time
of construction, the first defendant had agreed to
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leave 1 ½ foot space from the plaintiff's western main wall. However,
contravening to his promise and also in contravention to the approved
plan of the second defendant, the first defendant had put up a wall, very
near to the plaintiff's western main wall. Inspite of the objection for such
an illegal construction, the first defendant had proceeded with
construction hurriedly by employing more number of masons and
labours. Further, the plaintiff had complained regarding such illegal
construction of the first defendant to the second defendant. Even then, the
second defendant did not take any steps to stop the construction. Hence
the plaintiff had come forward with a suit for the relief of mandatory
injunction and also for permanent injunction.
4. The said suit was resisted by the first defendant by contenting
that on 14.11.2002, the first defendant had purchased the property from
One Krishnaswamy and he wanted to put up RCC roof after removing the
tiles and he also obtained approved plan from the Corporation. Thus
defendant submits that the alleged western main wall belongs to him.
The first defendant further submits that he has not put up any
construction endangering the plaintiff's wall, and the so called window
will in no way affect the privacy of the plaintiff or the family members.
Hence prayed to dismiss the suit.
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Evidence and documents:
5. Before the trial Court, the Plaintff has marked 5 documents as
Exs.A1 to A5, and the defendants marked 3 documents as Exs.B1 to B3.
As a Court document, Exs.C1 and C2 have been marked. On behalf of
the plaintiff, defendants and as Court witness, each one witness was
examined.
Findings of the Courts below:
6. The trial Court, after considering the oral and documentary
evidence has dismissed the suit. Aggrieved by the said finding, the
plaintiff preferred an Appeal, wherein the first Appellate Court found that
the first defendant has put up construction in contravention to the plan
approved by the second Respondent and also found that erection of
window would impair the privacy of the Plaintiff. Eventually allowed the
appeal, thereby decreed the suit on 28.07.2007.
Substantial questions of law:
7. At the time of admission of the second appeal, this Court has
admitted this appeal with the following substantial questions of law:
(i) Whether the suit for mandatory injunction is
barred under Section 69 of the Specific Relief Act in
the absence of any suit notice being issued by the
plaintiff before filing the suit claiming the said relief
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against the first defendant?
(ii) Whether the plaintiff is entitled to the decree for
mandatory injunction and permanent injunction on
the principles of right to privacy, when he himself
has not let out any side set back on the western side
of the suit property so as to enable the first
defendant to enjoy such a right so far his property?
Submissions on both sides:
8 (a). The learned counsel for the appellant has filed an application
in C.M.P.No.7584 of 2023 to formulate an additional Substantial
Question of Law. It was the contention of the learned counsel for the
Appellant/first defendant that subsequent to the filing of the suit, there
were numerous subsequent developments which made the earlier cause
of action becomes irrelevant.
8 (b). It was also contended that the plaintiff himself had
constructed RCC structure to the entire length of the building and that the
prayer in respect of permanent injunction restraining the defendant from
erecting any window would also become redundant in view of the
subsequent development. Therefore he contended that the original cause
of action is not subsisting as of today.
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9. Apart from this, in respect of subsequent developments, the first
defendant has filed counter in C.M.P.Nos.7580 and 7584 of 2023.
Wherein he has categorically admitted that the plaintiff has put up RCC
construction. It is pertinent to mention here that, even at the time of
argument of the second appeal, additional substantial question of law can
be framed. Therefore this Court is of the view that for effective disposal of
the second appeal, it is imperative for the Court to formulate the following
additional Substantial Question of law.
“(i) Whether the original cause of action pleaded
in the plaint by the plaintiff still subsists for adjudication
when the character and nature of the suit property itself
was changed pending the second appeal by demolishing
the tiled house of the plaintiff and putting up new
construction?”
10. Both side Counsels have argued upon the Substantial Question
of law formulated on 20.11.2007 and also upon the additional Substantial
Question of law formulated today.
11. The learned Counsel for the Appellant/defendant also invited
the attention of this Court to the petition filed under Order XLI Rule 27 of
C.P.C in C.M.P.No.7580 of 2023, to receive the additional document
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in respect of the construction made by the plaintiff. It is the submission
of the learned counsel for the Appellant/defendant that the original cause
of action for filing suit has arisen due to the weakening of western main
wall which was made of mud and clay due to the illegal construction
made by the first defendant, which has affected the stability of the
plaintiff's wall.
12. Further, it was also pleaded in the plaint that there is a open
back yard, and if the first defendant have any window on the eastern side
of his building, it would affect the privacy of the plaintiff and his family
members. The learned counsel for the Plaintiff, in all fairness, has
submitted that they have already put up construction in their suit property
and that there is no such open backyard, and the main parent wall which
was situated on the western side, which was made of mud and clay has
been demolished and replaced with new cement wall. Further it is the
submission of the learned Counsel for the Plaintiff that he has put up the
constuction in due compliance with the plan approved by the second
defendant.
13. At this juncture, the learned Counsel for the
defendant/Appellant would rely upon some additional documents such as
the notice issued by the second defendant to the plaintiff for unauthorised
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construction made by the plaintiff. However, the plaintiff is disputing
such unauthorised construction. Though the suit was filed in the year
1999, by efflux of time, so many subsequent developments had taken
place, which appears to have made the earlier pleadings of the parties
become inappropriate to some extent.
14. In support of the Appellant's case, the learned counsel for the
Appellant/defendant had relied the judgment in the case of
G.Ramasubramani -vs- District Forest Officer, District Forest Office,
Madurai and another reported in (2010) 2 MLJ 595, and would
contend that the subsequent development, which had taken place in the
present case, would make the plaint original cause of action become
irrelevant and such developments has got a bearing in the disposal of the
appeal.
15. T hough the plaintiff admits the demolition of old building, and
the construction of the new one, he disputes the allegation of
unauthorised construction. However, the first defendant/appellant relied
on some documents to show that though the plaintiff alleges unauthorised
construction of the defendant, he also put up unauthorised construction.
Therefore for effective disposal of this appeal, the additional document
would be very much useful and would serve substantial cause of justice.
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Therefore, this Court deem it appropriate that the document mentioned in
C.M.P.No.7580 of 2023 is liable to be received as an additional evidence.
In doing so, an opportunity to be given to the plaintiff to controvert the
document. But here this Court has received the additional document only
to establish the putting up new construction by the plaintiff which factum
was admitted by the plaintiff in the counter statement filed in the present
C.M.P. Therefore, question of challenging the additional document pales
into insignificance. Hence, it is appropriate to allow C.M.P.No.7580 of
2023 and the petition mentioned documents are ordered to be received as
evidence. The Appellant has filed the following documents in the above
C.M.P.
(i) Reply given by the Right to Information Officer to the
1st defendant stating that action will be taken under
the provisions of Tamil Nadu District Municipalities
Act.
(ii) Reply given under the Right to Information Act,
enclosing the Notice issued in Ka.Ma.2000/2012
dated 02.05.2013 under Section 205(1), (2) and 313
& 317 of Tamil Nadu District Municipalities Act.
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(iii) Reply given by the Right to Information Officer,
Nagapattinam in Na.Ka.No. 3089/2015/F1 furnished
copy of the building plan and the order dated
11.09.2013 made in Na.Ka.No. 200/2012 granting
Building Plan Permission by the 2nd defendant.
(iv) Photographs showing the physical features of the
plaintiff and 1st defendant’s house with Studio Bill.
The above documents may be marked as Ex.B4 to B7 respectively.
16. Coming back to the impact of subsequent developments in
pending court proceedings, it is useful to refer some precedents to
understand the legal nuances in this regard in the case of Gayaprasad vs.
Pradeep Shrivatsava, reported in (2001) 2 SCC 604, the Hon'ble
Supreme Court had held that, when subsequent events had an impact on
the rights of the parties, then the relief can be moulded,
11. “We cannot forget that while considering the bona fides
of the need of the landlord the crucial date is the date of
petition. In Ramesh Kumar v.e Kesho Ram a two-Judge
Bench of this Court (M.N. Venkatachaliah, J., as he then
was, and N.M. Kasliwal, J.) pointed out that the normal
rule is that rights and obligations of the parties are to be
determined as they were when the lis commenced and the
only exception is that the Court is not precluded from
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moulding the reliefs appropriately in consideration of
subsequent events provided such events had an impact on
those rights and obligations. What the learned Chief
Justice observed therein is this: (SCC pp. 626-27, para 6)
"6. The normal rule is that in any litigation
the rights and obligations of the parties are
adjudicated upon as they obtain at the commencement of
the lis. But this is subject to an exception. Wherever
subsequent events of fact or law which have a material
bearing on the entitlement of the parties to relief or
on aspects which bear on the moulding of the relief occur,
the Court is not precluded from taking a 'cautious
cognizance' of the subsequent changes of fact and law to
mould the relief."
12. This Court reiterated the same principle in Kamleshwar
Prasad v.Pradumanju Agarwal that the crucial date
normally is the date of filing the petition. In that case, a
two-Judge Bench (K. Ramaswamy and G.B.Pattanaik, JJ.)
has held that even the subsequent event of death of the
landlord who wanted to start a business in the tenanted
premises is not sufficient to dislodge the bona fide need
established by him earlier. This is a what Pattanaik J. has
observed for the Bench: (SCC p. 415, para 3)
"That apart, the fact that the landlord needed
the premises in question for starting a business which fact
has been found by the appellate authority, in the eye
of the law, it must be that on the day of application for
eviction which is the crucial date, the tenant incurred the
liability of being evicted from the premises. Even if the
landlord died during the pendency of the writ petition in
the High Court the bona fide need cannot be said to have
lapsed as the business in question can be carried on by his
widow or any other son."
13. In our opinion, the subsequent events to overshadow
the genuineness of the need must be of such nature and of
such a dimension that the need propounded by the
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petitioning party should have been completely eclipsed by
such subsequent events. A three-Judge Bench of this Court
in Pasupuleti Venkateswarlu v. Motor and General Traders
which pointed to the need for remoulding the reliefs on the
strength of subsequent events affecting the cause of action
in the field of rent control litigation, forewarned that
cognizance of such subsequent events should be taken very
cautiously. This is what learned Judges of the Bench said
then: (SCC pp. 772-73, para 4)
"We affirm the proposition that for making the right
or remedy claimed by the party just and meaningful as also
legally and factually in accord with the current realities, the
Court can, and in many cases must, take cautious
cognizance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness
to both sides are scrupulously obeyed."
17. In another judgment in the case of Shipping Corporation of
India Ltd vs Machado Brothers and Others reported in (2004) 11
Supreme Court Cases 168, the Hon'ble Supreme Court had held that,
when the dispute raised in the case has lost its relevance in the passage of
time, relief can be moulded:
“24. Almost similar is the view taken by this Court in
the case of J.M.Biswas v. N.K. Bhattacharjee4 wherein this
Court held: (SCC p. 71, para 10) "[T]he dispute raised in
the case has lost its relevance due to passage of time and
subsequent events which have taken place during the
pendency of the litigation. In the circumstances, continuing
this litigation will be like flogging a dead horse. Such
litigation, irrespective of the result, will neither benefit the
parties in the litigation nor will serve the interest of the
Union."
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25. Thus it is clear that by the subsequent event if the
original proceeding has become infructuous, ex debito
justitiae, it will be the duty of the Court to take such
action
as is necessary in the interest of justice, which includes
disposing of infructuous litigation. For the said purpose it
will be open to the parties concerned to make an
application under Section 151 CPC to bring to the notice
of the Court the facts and circumstances which have made
the pending litigation infructuous. Of course, when such an
application is made, the Court will enquire into the alleged
facts and circumstances to find out whether the pending
litigation has in fact become infructuous or not.”
18. In the case of N. Sowbbagyalakshmi Vs. Lakshmikantamma
and Others, reported in MANU/OR/0226/1975, the Orissa High Court
has held that, it is the duty of the Appellate Court to take all subsequent
developments in litigation and to modulate the relief in appropriate way.
“9 . I may now refer to some decisions of the
Supreme Court. In the case of Surinder Kumar v. Giap
chand MANU/SC/0024/1957 : A.I.R. 1957 S.C. 875, the
view expressed by the American Supreme Court in the case
of Patterson v. State of Alabama (1934) 294 U.S. 600, has
been quoted with approval:
We have frequently held that in the exercise of our
appellate jurisdiction we have power not only correct error
in the judgment under review but to make such disposition
of the case as justice requires. And in determining what
justice does require, the Court is bound to consider any
change, either in fact or in law, which has supervened since
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the judgment was entered.
In the case of Kotturuswami v. Veerayya
MANU/SC/0102/1958 : A.I.R. 1959 S.C. 577,changed
position brought about by the Hindu Succession Act was
given effect to.Similarly, in the case of Ram Sarup v.
Munshi
MANU/SC/0401/1962 : A.I.R. 1963 S.C.553, changed
position brought about by the Amending Punjab Act, 10 of
1960 to the Punjab Preemption Act, 1 of 1913 was given
effect to. In the case of Nair Service Society v. K.C.
Alexander MANU/SC/0144/1968 : A.I.R. 1968 S.C. 1165,
idayatullah, J.(as the learned Judge then was) in clear
terms approved the view indicated by Sir Asutosh
Mookherjee, J. in Rai Charan v. Biswanath A.I.R. 1915
Ca1. 103 and agreed with the view that subsequent events
can be taken into account with a view to doing complete
justice to the parties. In the case of Mahalinga Thambiran
v. Arulnandi Thambiran MANU/SC/0263/1973 : (1974) 1
S.C.C. 150, it has been observed thus in paragraph 45 of
the judgment:
.... Normally, a Court will declare only the rights of the
parties as they existed on the date of the institution of the
suit. But, in this case on account of the subsequent event,
namely, the death of the Defendant, we have to mould the
relief to suit the altered circumstance. If the Defendant had
been alive, it would have Been sufficient if we had
declared, as the learned, Single Judge has done, that the
Appellant was the Elavarsu of the Kasi Mutt. Now that the
Defendant is dead, we make a declaration to at the
Appellant was holding the position of the Elavarsu during
the life time of the Defendant, that the revocation of the
nomination of the Appellant as the Elavarasu by Exhibit B-
9 was bad, and that the Appellant was entitled to succeed
to the headship of the Mutt on the death of the Defendant.
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A review of the legal position thus leaves the matter
beyond doubt that it is the duty of the appellate Court to
take all subsequent developments in the litigation both of
fact and law into consideration and modulate the relief in
an appropriate way with a view to doing complete justice to
the parties. Admittedly Defendant No. 1 died during the
pendency of the litigation. As found by the lower appellate
Court, the status of Defendant No. 1 was only that of a
bhag chasi with life interest, and the right was not
heritable. In that, view of the matter, it would not be
appropriate to dismiss the suit by merely holding that the
suit when instituted was not maintainable. On the other
hand, litigation would be cut short, complete justice would
be done to parties and nobody would at all be prejudiced if
in this very suit, on the admitted basis of the death of
Defendant No. 1 pendente lite, the relief prayed for is
modulated and the legal representatives of Defendant No.
1 are evicted from the property on the footing that they are
trespassers.”
19. Therefore, from the above precedents, it is covertly and overtly
apparent that there is a duty cast upon the Appellate Court to consider the
subsequent developments. During the pendency of the litigation, there is a
possibility of sprouting new rights and liabilities between the parties
which cannot be simply kept aside while deciding the case at later point
of time. In the instant suit, at the time of filing of the suit, the cause of
action was, constructing a wall near the plaintiffs western parent wall,
made of mud and clay. Now that, admittedly, such western parent wall of
the plaintiffs had been removed and replaced with RCC construction,
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which factum could be elicited through the counter statement and
additional documents submitted before this Court in C.M.P.No.7580 of
2023.
20. Though the factum of putting up construction after replacing
the western parent wall is admitted by the plaintiff in the counter
statement in C.M.P.No.7580 of 2023, the plaintiff would dispute the
alleged unauthorised construction in contravention to the plan approved
by the second respondent. Therefore, the construction of new building in
the suit property after demolishing the Western parent wall, which was
the cause of action to institute the suit, has been fully established.
Therefore, in view of the above precedent stated supra, and in the
background of subsequent development there is a duty cast upon this
Court to find out whether cause of action stated in the plaint is still
survives or not.
21. While considering the plaint prayer harmoniously, in order to
protect the western parent wall which was made of mud and clay, the
plaintiff wanted a mandatory injunction to remove the construction which
was constructed adjacent to the western parent wall, endangering the
plaintiff's mud parent wall. Such parent wall is not in existence as on
today. Therefore, if at all the plaintiff has got any grievance over the first
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respondent's construction, it may be for an unauthorized construction,
qua construction made deviating from the plan approved by the second
defendant.
22. Coming to the second prayer, if any window had been erected
on the wall facing western side, the same would affect the privacy of the
family members of the plaintiff especially women. This prayer also
becomes insignificant in view of putting up construction by the plaintiff
without leaving any vacant space on the backyard. Therefore, even the
prayer in respect of permanent injunction restraining the defendant from
putting up window would also has lost its relevance and pales into
insignificance. Therefore, this Court is of the firm view that in view of the
subsequent development, the relief sought for lost its relevance and the
continuance of suit is nothing but flogging a dead horse as stated in
Shipping Corporation of India Limited case (cited supra).
23. In view of the above detailed discussion, the additional
substantial question of law is answered in favour of the appellant. As a
concomitant substantial Question of law formulated on 20.11.2007
becomes infructuous.
24. In the result, this second appeal is allowed by setting aside the
order of the Lower Appellate Court and thereby restoring the dismissal
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order passed by the Trial Court. The C.M.P.No.7584 and 7580 of 2023
are also allowed. There shall be no order as to cost.
25. It is made clear that both parties are making allegations against
each other about the deviation and unauthorized construction
contravening to the approved plan sanctioned by the second defendant.
Therefore, the order passed in the Second Appeal will in no way affect the
power of the second respondent to proceed against the alleged deviation
and unauthorized construction of both the plaintiff and the first defendant
according to law. No costs.
22.12.2023
Internet : Yes/No
Index: Yes/No
Speaking Order: Yes/No
NCC : Yes / No
shl/nsl
List of Exhibits marked on the side of the Appellant:
Sl. No. Exhibits Description
1 Ex.B4 Reply given by the Right to Information Officer to the 1st
defendant stating that action will be taken under the
provisions of Tamil Nadu District Municipalities Act.
2 Ex.B5 Reply given under the Right to Information Act, enclosing
the Notice issued in Ka.Ma.2000/2012 dated 02.05.2013
under Section 205(1), (2) and 313 & 317 of Tamil Nadu
District Municipalities Act.
3 Ex.B6 Reply given by the Right to Information Officer,
Nagapattinam in Na.Ka.No. 3089/2015/F1 furnished copy
of the building plan and the order dated 11.09.2013 made
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Sl. No. Exhibits Description
in Na.Ka.No. 200/2012 granting Building Plan Permission
by the 2nd defendant.
4 Ex.B7 Photographs showing the physical features of the plaintiff
and 1st defendant’s house with Studio Bill.
To
1. The District Munsif Court,
Nagapattinam
2. The Subordinate Court,
Nagapattinam
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C.KUMARAPPAN,J.
shl/nsl
and
C.M.P.Nos. 7580 and 7584 of 2023
https://www.mhc.tn.gov.in/judis
22.12.2023
https://www.mhc.tn.gov.in/judis
