(JUDGMENT OF THE COURT WAS DELIVERED BY K.K. SASIDHARAN,J.) This Writ Appeal has been preferred by the Executive Officer, A.M. Nageswarasamy Tirukoil challenging the order dt. 8.9.2005 in W.P.No,. 27997/2005.
2. The lst respondent has preferred a writ Petition in W.P.No.27997 of 2005 for issue of a Writ of Mandamus directing the 2nd respondent to measure the property in Survey Nos.111-0.30cents, 113/1-0.80 cents, 116-0.09 cents situated at Thirunageswaran Village, Sriperumpudur Taluk, Kancheepuram District which according to him was in his possession as a trustee of Mandara Vinayagar Temple situated at Thulukar Street Kundrathur. Before the Writ Court it was the case of the petitioner that the property has been in his possession and enjoyment and though he requested to measure the property and paid the fee amount for the same, there was no follow-up action on the part of the 2nd respondent and as such he was constrained to file the Writ Petition. Since the prayer was only to survey the property, the learned single judge was pleased to direct the 2nd respondent to dispose of the representation submitted by the petitioner.
3. The appellant was not a party to the writ petition. Since the lst respondent has not divulged the pending litigation between the parties and obtained an order behind their back, the appellant has filed the writ appeal after taking leave from this court.
4. We have heard Mr.T.V.Sivagnanam, learned counsel for the appellant and Mr.T.S.N. Prabhakaran, learned counsel for the respondents.
5. It is found from the materials available on record that originally a suit in O.S.No.672 of 2002 was preferred by the first respondent and the same was decreed by the District Munsif, Poonamallee exparte as per judgment and decree dt. 28.12.2004. The said suit was for a decree of injunction and we are informed by the learned counsel for the appellant that they have already taken steps to set aside the exparte decree. We are also informed that another suit in O.S.No.178 of 2005 has been filed before the same court again for an injunction and the said suit is also pending trial. When civil proceedings are pending before the Civil Court it was not proper on the part of the first respondent to file a writ petition for mandamus directing the second respondent to measure the property. It is evident that the intention of the lst respondent was only to collect evidence for the purpose of using the same in the pending Civil suit. In case the first respondent was of the view that survey of the property was necessary for determination of the issue, he should have filed necessary application before the Civil Court. In any case, the first respondent is not entitled for a writ of mandamus to measure the property and that too in a writ petition without impleading the temple as a party. Therefore we are of the opinion that the first respondent has not made out a case for issue of a Writ of Mandamus. It is always open to the parties to file appropriate applications before the Civil Court, in case the same is considered necessary for adjudication of the factual dispute involved in the matter.
6. Accordingly the order of the learned single judge is set aside. However, we make it clear that the Civil Court has to dispose of the proceedings between the parties on merits and as per law and without in any way being influenced by the observation contained in this judgment as well as the dismissal of the Writ Appeal. The Writ Appeal is allowed subject to the above observation. No Costs.
glp/tr To
1. The Executive Officer A/M Nageswarasamy Tirukoil Thininageswaram
2. V. Ganesa Mudaliar
3. The Tahsildar Tahsildar Office Sriperumpudur Kancheepuram District
4. The Director District Land Survey Office Kancheepuram The writ appeal has been preferred by a third party being aggrieved by the order passed by the learned Single Judge dated 08-09-2005 in W.P.No.27997 of 2005. The first respondent has preferred the writ petition for issue of a writ of mandamus directing the second respondent herein to measure the property situated at Thirunageshwaran Village, Sriperumpudur Taluk, Kancheepuram District, which according to the petitioner was in his possession as a Trustee of Mandara Vinayagar Temple situated at Thulukar Street, Kundrathur. In the affidavits filed in support of the writ petition it was stated by the petitioner that the property was in his possession and his repeated requests to measure the property remained unconsidered by the respondents and aggrieved by the same, he has moved the writ petition. Since the prayer sought for in the writ petition was only to survey the property by a Surveyor, the writ petition was allowed issuing a mandamus to the second respondent to take appropriate action on the representation submitted by the first respondent for surveying the lands situated at Thirunageshwaran Village, Sriperumpudur Taluk, Kancheepuram District.
2. The present writ appeal has been preferred by the Executive Officer of the Temple being aggrieved by the order passed by the learned Single Judge. In the memorandum of grounds it was the case of the appellant that there were series of proceedings between the first respondent and the appellant with respect to the property and admittedly the property is in the possession of the Executive Officer and without impleading him as a party the first respondent has filed the writ petition and obtained an order behind his back.
3. We have heard Mr. T.V. Sivagnanam, learned counsel for the appellant and Mr. T.S.N. Prabhakaran, learned counsel for the respondents.
4. It is found from the materials on record that the suit in O.S.No.672 of 2002 has also been preferred by the first respondent has also been decreed by the District Munsif, Poonamallee as per the judgment and decree dated 28-12-2004. The said suit was for a decree of injunction and we are informed by the learned counsel for the appellant that they have already taken steps to set aside the exparte decree. It is also seen that another suit O.S.No.178 of 2005 has been filed before the same Court that too for an injunction and the said suit is also pending trial. When the civil proceedings are pending before the Civil Court it was not proper on the part of the learned Single Judge to issue mandamus directing the second respondent to measure the property. In fact it was the injunction of the first respondent to collect the evidence for the purpose of using the same in the Civil Suit. In case the first respondent was of the opinion that survey of the property was necessary for determination of the issue, he should have filed necessary application before the Civil Court. In any case, he is not entitled for a writ of mandamus directing the second respondent to measure the property and that too behind the back of the Temple and its administration. Therefore, we are of the opinion that the order of the learned Single Judge is liable to be set aside and accordingly it is set aside. It is open to the parties to file appropriate application before the Civil Court, in case the same is necessary for adjudication of the factual dispute involved in those cases.
5. The writ appeal is allowed to the extent indicated above. We also make it clear that the order in this writ appeal will not stand in the way of his prosecuting the suit in O.S.No.178 of 2005 before the learned District Munsif.