Original Side Appeals filed under Clause 15 of the Letters Patent read with Order XXXVI Rule 1 of Original Side Rules, against the common order dated 06.02.2009 passed by a learned single Judge of this Court in Application Nos.936 and 937 of 2008 in c.S.No.811 of 2008 respectively.
This judgment shall govern both these appeals, which have arisen from a common order dated 06.02.2009 of a learned single Judge of this Court made in Original Application Nos.936 and 937 of 2008 respectively, whereby the applications seeking for an interim injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by the applicant/plaintiff and also from alienating the suit property to third parties, were allowed.
2. The court heard the learned senior counsel for the appellants as well as the respondent.
3. The respondent herein is the plaintiff. He filed a suit for a declaration that the sale deed executed by the 1st defendant company in favour of the 2nd defendant on 11.04.2008 in respect of the plaint schedule property as void, non est in law and illegal since the suit property was the subject matter of prior agreement of sale dated 29.09.2005 entered into between the plaintiff and the 1st defendant and also seeking for a relief of specific performance to execute a sale deed on the strength of the agreement of sale dated 29.09.2005 entered into between the plaintiff and the 1st defendant. Pending suit, the said applications were taken up by the plaintiff with the following averments:
The applicant/plaintiff entered into an agreement of sale on 29.09.2005 with the 1st respondent/1st defendant, who is the owner of flat bearing door No.20, Vasan Street, T.Nagar, Madras. The sale consideration was fixed at Rs.12 lakhs and a sum of Rs.10 lakhs was paid as advance by the plaintiff to the 1st defendant, enabling him to obtain the original sale deeds of the suit property from the Indian Overseas Bank for clearing the subsisting equitable mortgage created by him already. The 1st defendant also put the applicant/plaintiff in possession of the suit property. The agreement also permitted the plaintiff either to use the property for his own purpose or to lease out the same to any third party. In July, 2007, the plaintiff leased out the property to one Dr.V.Ramakrishnan and has been put in possession and enjoyment of the property as a tenant. An attempt was made on 07.05.2008 to dispossess him. On enquiry, the plaintiff came to know that the 1st defendant/1st respondent sold the property to the 2nd respondent on 11.04.2008 suppressing the earlier agreement. The plaintiff has already paid 85% of the sale consideration and he is also ready and willing to pay the balance of the sale consideration. Apart from that, the 1st and 2nd defendants are attempting to dispossess the tenant inducted by the plaintiff on the strength of the agreement and also to alienate the property to third parties. Under such circumstances, the said applications have been filed before the Court.
4. The applications were contested by the defendants stating that the 1st defendant/1st respondent was the Public Limited Company and was the owner of the suit property. It was in absolute possession and enjoyment of the same till 11.04.2008, when the same was sold to the 2nd defendant/2nd respondent and on the said date, the 1st respondent also delivered vacant possession of the same to the 2nd respondent. No agreement for sale was actually entered into between the plaintiff and the 1st defendant either on 29.09.2005 or the possession was actually given or no advance amount was received, as averred in the plaint. Then, the question of dispossession does not arise at all. The documents are fabricated and already, the suit in O.S.3332 of 2008 was filed before the XI Assistant Judge, City Civil Court, Madras, by V.Ramakrishnan, claiming to be the tenant in respect of the suit property and I.A.8107 2008 seeking interim injunction was dismissed on 16.06.2008, after hearing the submissions made by both parties. Under such circumstances, both the applications were liable to be dismissed.
5. The learned single Judge, on consideration of the materials, took a view that it is a fit case, where prima facie case has been made out, and granted the order of interim injunction. Aggrieved over the same, the defendants broughtforth the present appeals before this Court.
6. Advancing the arguments on behalf of the appellants, Mr.T.V.Ramanujam, the learned Senior Counsel, would submit that in the instant case, admittedly, the suit property belonged to the 1st defendant; that the property has been sold in favour of the 2nd defendant by a registered sale deed and the 2nd defendant was also put in possession of the property; that while the matter stood thus, on the strength of the forged documents, the plaintiff has approached the Court and sought for two reliefs, one for to declare the sale deed between the 1st defendant and 2nd defendant as void and illegal and also another for the specific performance on the strength of the agreement for sale i.e.alleged to have been entered into between the plaintiff and the 1st defendant on 29.09.2005; that pending suit, the two applications were filed, one for interim injunction not to interfere with the possession and enjoyment of the tenant and the other for interim injunction restraining the defendants from alienating the suit property; that the trial Judge has granted the reliefs, without appreciating the factual position and in the instant case, it was the specific plea that was made by the appellants/defendants that the sale agreement relied on by the plaintiff dated 29.09.2005 was a forged document and also it was specifically denied the averments that the sale consideration was Rs.12 lakhs; out of which Rs.10 lakhs was already paid and that was not to the Managing Director, who, according to the plaintiff, signed the alleged agreement, but to one Mr.Srinivasan.
7. Added further the learned senior counsel that the property belonged to the Public Limited Company and it was not the property of the Managing Director and hence, the alleged agreement entered into, would not be binding upon. Added further the learned senior counsel that in the instant case, even the part of the consideration of Rs.10 lakhs was not paid to the Managing Director but to one Srinivasan, who has actually handed over the agreement; that it is a case, where the tenant has filed a suit in O.S.3332 of 2008 on the file of XI Assistant Judge, City Civil Court, Madras and also filed an interim injunction application and the same was dismissed on 16.06.2008; that the instant suit was filed on 20th August 2008 thereafter, which would be clearly indicated that one suit was filed by the alleged tenant before the trial court and while the application was dismissed, the plaintiff has come forward with the suit containing false averments as to snatch the property, which originally belonged to the 1st defendant company; that it is also to be pointed out that the 1st defendant sold the property to the 2nd defendant on 11.04.2008 and thus, a perusal of the document, namely, the alleged agreement dated 29.09.2005, would go to show that it was a forged and fabricated one; that under such circumstances, no prima facie case has been made out for granting injunction, but the trial Judge has taken an erroneous view and hence, the order has got to be set aside.
8. The Court heard the learned senior counsel for the respondent, who reiterated the contentions, which were putforth before the learned single Judge, in his sincere attempt of sustaining the order.
9. The Court has paid its anxious consideration on the submissions made by the learned senior counsel on either side and has considered all the available materials.
10. Admittedly the property, which is in question, was originally belonged to the 1st defendant Public Limited Company and the alleged agreement was entered into on 29.09.2005 i.e. between the Managing Director of the Company and the plaintiff. A perusal of the document would clearly indicate that the sale consideration was Rs.12 lakhs and out of which, Rs.10 lakhs was paid on that date. The averments in the plaint would go to show that Rs.10 lakhs was paid not to the Managing Director, viz., Rathod, but it was paid only to Mr.Srinivasan, who also handed over the agreement in question and it was urged by the appellants before the trial court and also equally before this Court that the document was a forged and fabricated one. Apart from the above, according to the plaintiff, the suit property was leased out to one Ramakrishnan, who is in possession of the property and further, he has also filed a suit in O.S.3332 of 2009 before the XI Assistant Judge, City Civil Court, Madras, seeking the relief of permanent injunction, restraining the defendants from interfering with his possession. At this juncture, it is pertinent to point out that the suit came to be filed after the sale was made by the 1st defendant in favour of the 2nd defendant on 11.04.2008, whereas the said Ramakrishnan filed the suit on 16.06.2008. Now, at this juncture, it is relevant to point out that the injunction application filed by the tenant, pending suit, was dismissed on merits and thus, if so, the plaintiff, in fairness, should have brought to the notice of the learned single Judge that a suit was already filed by the alleged tenant before the City Civil Court and also the dismissal of the injunction application; but those facts were actually not mentioned in the plaint and also in the injunction application. Thus, the Court is of the considered opinion, in a case like this, when the defendants came before the specific plea that it was a forged document and actually they were in possession, the Court should have considered the same. Apart from the above, a reading of the plaint would actually indicate that the plaintiff had sought for permanent injunction that the defendants should not interfere with the possession of not the plaintiff, but of the tenant, who has already filed a suit before the City Civil Court and the application for interim injunction has also been dismissed. Under such circumstances, the Court is unable to notice any prima facie case to grant an injunction either not to interfere with the possession or not to alienate the suit property further. Hence, the Court is of the considered opinion that the orders have been passed erroneously and they have got to be set aside.
11. At this juncture, the learned senior counsel for the respondent/plaintiff brought to the notice of the Court that since the matter is pending before this Court, where all the questions have got to be decided, further alienation by the 2nd defendant should be restrained. In answer, the learned senior counsel for the 2nd defendant brought to the notice of the Court that he wants to make construction in the property, for which purpose, he has to make borrowal. Under such circumstances, the Court is of the opinion that the 2nd defendant has to be restrained from making sale of the property in question, pending disposal of the suit.
Accordingly, both the appeals are disposed of. No costs. Consequently, connected M.Ps.are closed. When the suit has got to be disposed, the trial Judge has to take a decision on merits of the matter and in accordance with law, uninfluenced by any of the observations made above. In the interest of both parties and in the interest of justice and also in order to avoid delay, it is fit and proper that the suit pending before the City Civil Court in O.S.3332 of 2008 has got to be transferred, to be tried jointly along with the present suit. Accordingly, O.S.No.3332 of 2008 pending on the file of XI Assistant Judge, City Civil Court, Madras, is ordered to be transferred to this Court and to be tried along with C.S.No.811 of 2008.
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