This is an application filed by the plaintiff seeking an order of permanent injunction restraining respondents 1 to 4 and 6 from alienating, encumbering, mortgaging or leasing out the newly built flats to third parties.
2.The applicant would contend that she is a registered owner of the premises bearing door Nos.98 and 99, Gowdia Mutt Road, Chennai 600 014 by means of three registered sale deeds. Respondents 1 to 4, who are adjacent owners of premises bearing No.97, Gowdia Mutt Road, Chennai 600 014, cooked up certain documents in collusion with the sixth respondent and obtained planning permit from the fifth respondent with the connivance of its officials and started putting up constructions encroaching upon the property belonging to the applicant. Having hurriedly put up illegal construction, they are now contemplating to alienate the suit property. Hence, the aforesaid relief is prayed for by the applicant.
3. The 6th respondent has contended in her counter as follows:-
The power of attorney executed by M/s.C.Kumar, C.Kasthuri and C.Rani was cancelled by them. Therefore, the sale deed executed by S.Sivasubramaniam in the guise of powers he got from those members is void. C.Purushothaman, having executed a power of attorney in favour of one of his brothers C.Sankar, chose to execute another power of attorney in favour of S.Sivasubramaniam in order to defraud the other legal heirs. The husband of the sixth respondent purchased the property bearing door No.98 and 99, Gowdia Mutt Road, Chennai 600 014. He has been in possession and enjoyment of the same. Many suits have been filed by the applicant through her power of attorney and also through other erstwhile sharers in the property. Therefore, the sixth respondent would submit that the application is liable to be dismissed.
4. S.Sathiaraj filed a petition seeking impleadment as 7th defendant contending that he is the real owner of the suit property. The said application was allowed and he has been impleaded as 7th defendant. He has not been impleaded in the present application seeking order of injunction. He, being the 7th defendant, has contended that he purchased the suit property bearing door Nos.98 and 99, Gowdia Mutt Road, Royapettah, Chennai to an extent of 860 sqft from C.Sankar, C.Saroja, C.Lakshmanan, C.Damodharan, C.Purushothaman, C.Santhakumari, C.S.Hemavathy and C.Jamuna, the legal representatives of late Chellababu represented by their power of attorney agent C.Sankar. D.Kumar, C.Kasthuri and C.Rani, the legal heirs of late P.Chelladurai, represented by their power agent C.Sankar, sold their share in the property to the 7th defendant. The 7th defendant has been in possession and enjoyment of the suit property since then. The applicant deliberately omitted to implead the 7th defendant in the suit and obtained order of injunction in respect of the property of the applicant. The power of attorney executed by Mr.C.Kumar, C.Kasthuri and C.Rani was cancelled by them. The sale deed in favour of the applicant executed by the alleged power agent S.Sivasubramaniam is void. Damodharan and Purushothaman cannot convey 240 sqft. of land each to the applicant as they do not own such an extent of land in the suit schedule property. In the suit filed before the City Civil Court, Chennai in O.S.No.6397 of 2007 seeking declaration that the sale deed dated 28.7.2006 executed in favour of the 7th defendant is null and void, the 7th defendant herein has been arrayed as 12th defendant. For all these reasons, the 7th defendant also would submit that the application deserves to be dismissed.
5. The point that arises for determination is whether the applicant is entitled to an order of injunction restraining respondents 1, 3, 4 and 6 from alienating or encumbering or mortgaging or leasing out the property.
6. Learned counsel appearing for the applicant would submit that there is a serious dispute as to the title to the suit property in the face of two sets of documents of title produced by the parties. A triable issue as to the right and interest in the suit property has arisen for determination in the suit. The interest of the applicant can be protected only by restraining respondents 1, 3, 4 and 6 from alienating or dealing with the suit property. If the property is alienated, there will be much hardship for the applicant who asserts her title and challenges rival title set up by the respondents. Therefore, he would submit that the applicant, who has shown prima facie case, is entitled to an order of injunction as prayed for.
7. Learned counsel appearing for the 6th respondent and the 7th defendant would contend that the 7th defendant, who sets up title in himself in the suit laid before the City Civil Court by the very same applicant, was not impleaded for reasons best known. Such a conduct of the applicant has to be taken note of seriously by the court while exercising the discretion to grant the relief sought for by the applicant. The applicant has chosen to misuse the process of court by filing suit after suit and writ petition after writ petition just to harass respondents 1 to 4 and 6 and the 7th defendant. The suit property was allegedly purchased by the applicant only after the power of attorney, given by the erstwhile owners, stood cancelled. Therefore, the sale deeds in the name of the applicant becomes ab initio void. The mandatory provision under Order XXXIX rule 3 of the Code of Civil Procedure was not adhered to by the applicant immediately after obtaining the order of ad interim injunction. The 7th defendant purchased the suit property from the original owners who had cancelled the power of attorney given in favour of the power agent. At a stage when the entire construction was completed in the suit property, the applicant has come forward with the present application, it is contended.
8. There is no dispute to the fact that the suit property originally belonged to one Ponnusamy Naicker, who bequeathed the same along with the remaining extent under the Will wayback in the year 1925 to his daughter Sambhandhammal and the same was probated as per the proceedings of this court in T.O.S.No.23 of 2007 dated 10.8.1929. There is also no dispute to the fact that Sambhandammal was blessed with two sons viz., Chellababu and Chelladurai and one daughter Vadivammal. M/s.C.Lakshmanan, Shanthakumari, Hemavathy, Damodaran, Purushothaman, Jamuna and Shankar are found to be the legal representatives of the deceased Chellababu and M/s.C.Kumar, C.Kasthuri and C.Rani are the legal heirs representing the share of the deceased Chelladurai.
9. Purushothaman, Jamuna and Santhakumari, three of the heirs representing the branch of Chellababu have not only executed an agreement for sale dated 3.5.1995 in respect of their share in door Nos.98 and 99 Gowdia Mutt Road, Royapettah, Chennai but also executed a registered deed of power of attorney on 3.5.1995 in favour of S.Sivasubramaniam. The agreement of sale dated 3.5.1995 would read that the entire sale consideration was paid by S.Sivasubramaniam to Purushothaman, Jamuna and Santhakumari in respect of their share in the subject property bearing door Nos.98 and 99.
10. M/s.C.Kumar, C.Kasthuri and C.Rani representing the branch of Chelladurai have also executed on the very same day an agreement of sale in favour of Sivasubramaniam having received the entire sale consideration and power of attorney on the very same day in favour of him. Damodaran, another legal representative of Chellababu executed an agreement for sale in respect of his share in the property bearing door Nos.98 and 99 on 19.10.1995 receiving the entire sale consideration. He also executed a power of attorney on 14.2.1996 in favour of Sivasubramaniam. C.Sankar, another legal heir of Chellababu also passed on a receipt on 9.8.1996 in favour of S.Sivasubramaniam evidencing the receipt of consideration towards his share in the property bearing door Nos.98 and 99. The said Sivasubramaniam entered into an agreement for sale on 13.8.1996 with the applicant having received full consideration. The said Sivasubramaniam also executed a deed of sale on 7.6.2006 to the extent of 240 sqft in premises bearing door Nos.98 and 99 which fell to the share of Damodharan in favour of the applicant. In respect of Purushothaman's share in the premises bearing door Nos.98 and 99, Sivasubramaniam, in the capacity as power of attorney holder, executed sale deed dated 7.12.2006 in favour of the applicant in respect of 240 sqft in the premises bearing door Nos.98 and 99 belonging to the lineal descendants of Chelladurai. The aforesaid documents filed on the side of the applicant would prima facie show that the applicant has purchased 720 sqft in the premises bearing door Nos.98 and 99 Gowdia Mutt Road, Chennai 600 014.
11. The 6th respondent and 7th defendant would contend that the deed of power of attorney executed by C.Kumar, Kasthuri and Rani, the lineal descendants of Chelladurai branch cancelled the said power of attorney as on 12.5.1999 itself. Therefore, Sivasubramaniam has no authority to execute the sale deed on behalf of C.Kumar, Kasthuri and Rani by virtue of the power of attorney executed by them in his favour as on 3.5.1995, it is submitted further. It is found on record that C.Kumar, Kasthuri and Rani have executed not only the power of attorney in favour of Sivasubramaniam in respect of their share in the property bearing door Nos.98 and 99 but also an agreement for sale, having received entire consideration.
12. As per
section 202 of the Indian Contract Act, 1872, when an agent, who has been given power to deal with the property, has himself acquired an interest in the very same property which forms part of the agency, the agency created under the power of attorney cannot be simply terminated to the prejudice of such interest created in favour of the agent unless there is an express contract to the contrary. The power of attorney as well as the agreement for sale executed by C.Kumar, Kasthuri and Rani in favour of Sivasubramaniam does not contemplate any contract contrary to the spirit of
section 202 of the Indian Contract Act, 1872. By producing the agreement of sale to show that the entire consideration was passed coupled with the power of attorney executed by M/s.C.Kumar, Kasthuri and Rani, the applicant has generated a triable issue. Of course, after the cancellation of the power of attorney executed in favour of Sivasubramaniam the very same set of lineal descendants of Chelladurai and some of the lineal descendants of Chellababu have executed a power of attorney in favour of C.Sankar who is also one of the lineal descendants of Chellababu in respect of 1100 sqft. Shankar, in turn, entered into an agreement for sale on 3.5.2006 with S.Sathiaraj, the 7th defendant herein. Damodharan and Purushothaman and other lineal descendants of Chellababu also executed an agreement for sale on 23.12.2005 in favour of S.Sathiaraj, the 7th defendant herein. Thereafter, they also executed a sale deed dated 27.12.2006 in respect of 860 sqft in favour of S.Sathiaraj.
13. Prima facie, it is found that the applicant has acquired from the power of attorney holder an interest in the suit property bearing door Nos.98 and 99 by paying entire sale consideration by virtue of the agreement for sale and power of attorney referred to above. The very same set of lineal descendants, having cancelled the power of attorney which had already created some interest in favour of the agent whom they have vested the power to deal with the property and sold away the same through their newly appointed power of attorney, the 7th defendant.
14. The Supreme Court in A.VENKATASUBBIAH NAIDU v. S.CHELLAPPAN (AIR 2000 SC 3032) observed as follows:-
"What would be the position if a Court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39. In our view such an order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party."
15. In a case where an applicant who has obtained ex parte order of ad interim injunction seeks for extension of the said order even without complying with Order XXXIX Rule 3 (a) and (b) of the Code of Civil Procedure, the court would refuse to extend the ad interim injunction granted in absentia of the respondent, if it is established that the applicant chose not to deliver to the opposite party or to send him by registered post a copy of the application for injunction together with a copy of the affidavit, a copy of the plaint and copies of the documents relied upon by him. To prove such compliance, he is required to file an affidavit setting out the manner of compliance as adumbrated under Order XXXIX Rule 3(a). But, in a case where the main application seeking interim injunction is taken up for disposal on aggressive contest by filing counter, such a non-compliance will not have a bearing. Then the court will have to decide the application only based on the merit of the application. The non-compliance of Order XXXIX Rule 3(a) and (b) by the applicant, who obtained ex parte order of ad interim injunction, cannot be a potential ground to reject the application seeking interim injunction sought for by the applicant when the application on contest merits consideration. In the instant case, of course, the applicant has not filed, either on the date of order of injunction granted or on the day immediately after that day, an affidavit setting out the compliance of Order XXXIX Rule 3(a) of the Code of Civil Procedure. As already pointed out by this court, such a non compliance will lose its vigour and vitality as also its significance when the main application is taken up for final hearing. In view of the above, the submission made by the learned counsel appearing for the 6th respondent and 7th defendant that the application deserves to be dismissed on account of non compliance of Order XXXIX Rule 3 (a) and (b) merits not consideration.
16. The learned counsel appearing for the 6th respondent and the 7th defendant cited a decision of the Supreme Court in MANDALI RANGANNA v. T.RAMACHANDRAN ((2008) 7 MLJ 1331 (SC)) wherein the Honourable Supreme Court observed that the court, while exercising the discretion to grant equitable relief, shall also take into consideration the conduct of the parties. The person, who had kept quiet for long time and allowed another to deal with the property exclusively, would not be entitled to an order of injunction, it has been observed therein.
17. That was a case where the property, which was subjected to a registered partition on 22.2.1954 was challenged only on 20.12.1971 after the property was dealt with in numerous transactions. Under such circumstances, the court has held that such a long delay will ordinarily rule out the exercise of discretion to grant an order of injunction in favour of such a party. The applicant would contend that immediately after two floors were constructed in the suit property, he has come to court seeking the relief. Of course, there is some delay in approaching the court, but, such a short duration of delay does not stand in the way of granting the equitable relief in the above facts and circumstances of the case.
18. True it is that the applicant has not chosen to implead the 7th defendant as one of the parties. The applicant has not contended in the suit that the 7th defendant is the owner of the suit property in this suit. Therefore, the question of impleading him originally by the applicant in this suit does not arise. It is true that several litigations are pending between the parties with respect to the very same property. But, it is found that the lineal descendants of Chellababu and Chelladurai have separately filed the suit before the respective courts.
19. As rightly contended by the learned counsel appearing for the applicant, there is a serious dispute with respect to the right and interest in the property bearing door Nos.98 and 99. The court finds that prima facie case involving triable issues has been made out by the applicant. In such circumstances, if the 6th respondent or the 7th defendant is permitted to alienate the property, not only the applicant but also the innocent purchasers, who venture to purchase the property not knowing the potential litigation between the parties, would face much hardship. It is true that considerable amount has been spent by the respondents in developing the property, but, overall assessment of the case would show that balance of convenience is found only in favour of the applicant.
20. In view of the above facts and circumstances, the court finds that respondents 1, 3, 4, and 6 to 10 will have to be restrained from alienating and encumbering or mortgaging or leasing out the suit property bearing door Nos.98 and 99. Therefore, the order of injunction as prayed for is granted. The application stands allowed. There is no order as to costs.
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