Madras High Court
S.Babulal vs Sulochana on 13 May, 2025
S.A.(MD)No.427 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 13.03.2025
Pronounced on : 13.05.2025
CORAM :
THE HONOURABLE Mr. JUSTICE G.ILANGOVAN
S.A(MD)No.427 of 2004
1.S.Babulal
2.Ranjithkumar
3.Dineshkumar
4.Sureshkumar
(A1 to A3 represented by their
Power Agent / A4)
(The 4th Plaintiff has been recognized
as power agent of other plaintiffs 1 to 3
by order dated 19.07.2000 in I.A.No.530 of 2000
on the file of the District Munsif of Kumbakonam.)
... Appellants / Appellants / Plaintiffs
Vs
1.Sulochana
2.R.Mallika ... Defendants / Respondents / Respondents
1/16
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S.A.(MD)No.427 of 2004
Prayer : This Second Appeal is filed under Section 100 of Civil
Procedure Code against the decree and judgment dated 20.10.2003 in
A.S.No.32 of 2003 on the file of the Additional Subordinate Judge,
Kumbakonam, confirming the judgment and decree dated 28.10.2002
passed in O.S.No.324 of 2000 on the file of the II Additional District
Munsif of Kumbakonam.
For Appellants : Mr.R.Subramanian
For R1 and R2 : No appearance
JUDGMENT
This Second Appeal is filed against the decree and judgment dated
20.10.2003 in A.S.No.32 of 2003 on the file of the Additional
Subordinate Judge, Kumbakonam, confirming the judgment and decree
dated 28.10.2002 passed in O.S.No.324 of 2000 on the file of the II
Additional District Munsif of Kumbakonam.
2. The suit property originally belongs to one Govindasamy Pillai,
he executed a registered will dated 20.01.1954, bequeathing the suit
property to his only son called Thangavel Pillai. After the death of
Govinda Pillai, Thangavel Pillai became the owner of the property.
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Thangavel Pillai was married to Amsavalli and Sulochana. There were
no issues. The plaintiff entered into an agreement of sale with Amsavalli
and the first defendant on 17.10.1991. The sale price was fixed at Rs.
4,20,001/-. Rs.70,001/- was received as advance. Later on 30.11.1991,
Amsavalli and the first defendant received Rs.30,000/-. As per the
agreement dated 03.09.1989 and 16.10.1989, the plaintiff approached the
first defendant and the Amsavalli for execution of the sale deed. At that
time, he came to know that in respect of the second item of the suit
property, litigation was pending. So, later, sale agreement was revised by
incorporating the recital that time for the specific performance was fixed
within one year after the disposal of the litigation pending before the
Madras High Court. Later, Amsavalli died leaving behind the second
defendant as adopted daughter. The second defendant is bound by the
agreement dated 17.10.1991. The plaintiffs were ready and willing to
perform their part of the contract without waiting for the disposal of the
litigation, but no information was given by the defendants regarding the
pendency of the litigation. The defendants issued a reply notice on
26.09.2000 which contained false and untennable allegations.
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3. Originally, the plaintiffs were the tenant in respect of the suit
properties. But from the date of the agreement he is in possession as
intending purchaser. On 16.07.2000, the defendants through the husband
of the second defendant came to the suit property and threatened the
plaintiffs to vacate the premises within a week. So the suit is laid for
permanent injunction restraining the defendants from anyway interfering
into the plaintiff's possession and enjoyment of the property.
4. In the written statement filed by the first defendant adopted by
the second defendant, the original ownership of the property is admitted.
Similarly, the sale agreement is also admitted. But the sale agreement
dated 17.10.1991 is barred by limitation. So the plaintiffs are not entitled
to maintain the suit on the basis of the time barred agreement. The
plaintiffs were not ready and willing to perform their part of the contract.
The contra pleading is denied through the reply notice dated 29.06.2000,
they have given the particulars of the litigation. The alleged threat dated
14.06.2000 is false. The plaintiff ought to have filed a suit for specific
performance and not for the relief of permanent injunction. The
defendant being the true owner, the suit for permanent injunction will not
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lie. On the basis of the plaint, the trial Court formulated two issues.
i) whether the plaintiff is entitled for the decree of
permanent injunction ?
ii) To what other reliefs ;
5. On the side of the plaintiffs one witness was examined and three
documents were marked. On the side of the defendant, second defendant
was examined as D.W.1 and no document was marked. At the
conclusion of the trial process, the trial Court dismissed the suit without
any cost. Against which, appeal was preferred before the III Additional
Subordinate Judge, Kumbakonam in A.S.No.32 of 2003. The appellate
Court confirmed the judgment and decree passed by the trial Court and
dismissed the appeal without any cost. Against which, the plaintiffs filed
the present Second Appeal.
6. At the time of admission, the following substantial question of
law is framed :
i) Whether in law the Courts below were not wrong
in refusing to grant the appellants a decree for injunction
in pursuance of Section 53A of the Transfer of Property
Act ?
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7. As mentioned in the pleadings of the parties, it is not in dispute
that a sale agreement under Ex.A1 was entered into between the wives of
Thangavel Pillai namely Amsavalli and Sulochana and the plaintiffs
herein on 17.10.1991. By which it is admitted that the plaintiffs were in
possession of the property as a tenant. Considering the above said
position, it was agreed between the parties that a sale agreement was
entered on 03.09.1989 by which the total sale price was fixed at
Rs.4,20,001/- as stated above.
8. On the date of agreement, the defendant received Rs.55,001/-
apart from Rs.10,000/- when the plaintiffs approached the defendant for
execution of sale deed, in pursuance of the agreement dated 03.09.1989,
it came to know to the parties with respect of a vacant site, lies in front of
the property, litigation was pending. So the parties decided to execute
sale deed after the litigation is over. So a fresh agreement was entered,
incorporating the above said issue as already agreed. Apart from that the
receipt of money was also stated.
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9. It is further agreed that within one year from the date of disposal
of the litigation, sale deed must be executed. The continuance of the
possession by the plaintiffs is also endorsed and admitted in the
agreement. Other customary recitals were also made. So this document
is not denied by the parties. So also the original agreement dated
03.09.1989. Now the problem started according to the plaintiffs, when
the defendant through the husband of the second defendant made threat
to the plaintiff to vacate the premises. Based upon which, the present
suit has been filed. It is the cause of action invoked by the plaintiffs by
filing the suit. After Ex.A1, on 12.06.2000, the plaintiffs issued a notice
demanding execution of the sale deed, moreover, the stage of the
litigation. Apart from that some trouble was also expressed in making
repair works in the building, because of the non completion of sale
process. In Ex.A3 - the reply, dated 28.06.2000, it has been stated that
the Second Appeal in S.A.No.1061 of 1984 is still pending before the
High Court and sale agreement dated 17.10.1991 is barred by limitation.
So the plaintiffs are not entitled for any relief and the plaintiffs should
not make any repair. The reply is dated 28.06.2000, now the present suit
on 19.07.2000, seeking a mere permanent injunction.
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10. So it is seen that only plea of limitation was taken up by the
defendants regarding the agreement. The possession is not derived in
whatever nature. The trial Court is of the view that the cause of action
stated in the plaint is not established and no permanent injunction can be
granted against a true owner. It is a short finding. The trial Court is of
the view that the plaintiffs without even paying the rent, remained in
possession for about 12 years on payment of sale advance amount of Rs.1
Lakh. In such circumstances, the plaintiffs are not entitled for permanent
injunction and if it is granted, then the defendant may not be in a position
to recover the possession of the property on the basis of title.
11. In the plaint, there is no specific prayer that the defendants
must be prevented from disturbing their possession otherwise than under
due process of law. Regarding the terms of the agreement, the appellate
Court was of the view that it is not a bar for claiming specific
performance. Even before this Court, the learned counsel for the
appellants reiterated the very same argument advanced before the
appellate Court submitting that a limited decree of permanent injunction
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may be granted in favour of the appellants, of course, subject to the
saving of limitation to the defendants for initiating action for recovery of
possession.
12. In short, their prayer is that they should not be disturbed
otherwise than under due process of law. For which the plaintiff ought to
have proved the basic things that attempt was made by the defendants to
evict him from the suit premises otherwise than under process of law.
13. As mentioned above, 10 years after the agreement, the notice
of demand was made under Ex.A2. Nothing has been stated in the notice
that the defendants are trying to disturb the plaintiffs' possession
otherwise than under due process of law. As mentioned above, the date
of notice is dated 12.06.2000. The plaint was filed on 19.07.2000,
invoking the occurrence said to have been taken place on 16.07.2000.
Whether there is any evidence on record to show the alleged attempt on
the part of the defendants to disturb his possession illegally, or nothing
but an imaginary occurrence said to have been stated by the plaintiffs in
the suit for the purpose of filing the suit. Now we will go to the evidence
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before the trial Court on this aspect. The second defendant is examined
as D.W.1 and she has stated that no attempt was made by them to disturb
the plaintiffs. But since the plaintiff did not pay the rent subsequent to
the agreement and the litigation is dragged on for more than 10 years, so
thought that if the property is available to them they can start a business.
14. So it is seen that the defendants wanted the possession to be
delivered to them for starting a business. But the plaintiffs stated that
only after the completion of the case, anything can be done. What
transpired between her husband and the plaintiffs was not known to her.
Eventhough second defendant's husband was present before this Court
and D.W.1 eventhough has stated that they are going to examine her
husband, he was not. She has also stated that they have no objection to
pass a decree in favour of the plaintiffs in a limited manner.
15. So the evidence of D.W.1, throws much light upon the
controversy over the cause of action for the suit.
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16. From that it is evident that because of the long delay in
disposal of the litigation in respect of the vacant site lies in front of the
suit property, both were not in a position to carry forward the sale
agreement, the plaintiffs wanted the repair to be made but the defendants
did not give permission. But on the contra, defendants wanted in
possession of the property because of the non conclusion of the
litigation. So as admitted by D.W.1, her husband approached the
plaintiffs for possession. That was refused by the plaintiffs and hence the
suit is filed.
17. But the problem lies why the plaintiffs have not filed a suit for
specific performance instead of invoking the discretionary power of this
Court. For showing the bonafideness, the plaintiffs ought to have
deposited the balance sale consideration at the Court at the time of filing
the suit for permanent injunction. But they did not. Whether this
conduct on the part of the plaintiff disentitles them from claiming the
limited prayer, is a point for consideration.
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18. The learned counsel for the appellants would rely upon the Full
Bench judgment of the Hon'ble Bombay High Court in the case of
Sadashiv Chander Bhamgare Vs Eknath Pandharinath Nangude,
reported in 2004(4) CTC 465 would submit that since the trial Court as
well as the appellate Court has found that the specific performance is
barred by limitation and his possession may be protected of course
subject to the above said submissions. He would also rely upon an
unreported judgment made in the case of Ramesh Mishrimal Jail Vs
Avinash Vishwanath Patne and another made in Civil Appeal No.2549
of 2025. So these judgments are in favour of the appellants.
19. Now it is admitted on both sides that one year time limit was
prescribed from the date of conclusion of the litigation. But on the date
of the suit, it is admitted on both sides that litigation was not over. So
the plaintiffs cannot be blamed for the above said delay. But of course,
even in such cases, the demand of execution ought to have been made
within reasonable time. The agreement which was entered into in the
year 1989 still could not be concluded. Inspite of the above said specific
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terms in the agreement, the plaintiffs ought to have taken the steps to get
the sale deed executed at least within a reasonable time. Here the time is
unreasonable. Section 38 of Specific Relief Act reads as under:
38. Perpetual injunction when granted. - (1) Subject to the other
provisions contained in or referred to by this Chapter, a perpetual
injunction may be granted to the plaintiff to prevent the breach of an
obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall
be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the
plaintiff's right to, or enjoyment of, property, the Court may grant a
perpetual injunction in the following cases, namely : -
(a) where the defendant is trustee of the property for
the plaintiff ;
(b) where there exists no standard for ascertaining the
actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in
money would not afford adequate relief ;
(d) where the injunction is necessary to prevent a
multiplicity of judicial proceedings.
20. So the question which arises for consideration is, in which one
of Sub-Sections the case of the plaintiffs namely the appellant herein, fits
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in. As mentioned above, the contractual obligation arose between the
parties by virtue of sale agreement. The reason for not filing the suit for
specific performance as mentioned above, was the incompletion of
litigation in respect of the property lies in front. But as mentioned above,
the plaintiff ought to have taken steps to get sale deed executed after
waiting for reasonable time. When the litigation goes on without any
possibility of completion, in a reasonable time, then the plaintiff ought to
have exercised that right.
21. Granting of permanent injunction will amount to multiplicity
of proceedings. As per Section 38(3)(d) of the Specific Relief Act,
injunction can be granting only if there is any possibility of preventing
multiplicity of judicial proceedings. So here absolutely the suit is not
going to prevent the multiplicity of proceedings but it will have effect of
causing multiplicity of proceedings. So on the sole ground I am of the
considered view that the plaintiff is not entitled even for the limited
request of permanent injunction.
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22. Therefore, this Second Appeal fails and dismissed with cost
through out. No costs.
13.05.2025
NCC :Yes/No
Index :Yes/No
Internet : Yes/ No
pnn
To
1.The Additional Subordinate Judge, Kumbakonam.
2. The II Additional District Munsif of Kumbakonam.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court, Madurai.
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G.ILANGOVAN, J.
pnn
ORDER
IN
13.05.2025
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