High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.3.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.13003 of 1999 and1525 of 2006 andS.A.Nos.609 and 630 of 2005and connected MPs.St.Joseph's Charity Trust, rep.by its Chairman J.Nagakesari,running St.Joseph's MatriculationSchool Teacher's Guildy Colony,Chennai-600 049... Petitioner in W.P. No.13003 of 19991. K.Deivasagayam (deceased)2. D.Kirubanayagam3. D.S.Jamesnayagam4. D.Inbanayagam5. D.Selvanayagam6. D.Jeevanayagam7. A.Santhoshrani8. B.Bala Bhaskar9. Hemachoma.. Petitioners in W.P. (P2 to P9 impleaded as LRs of the No.1525 of 2006 deceased first petitioner vide order dated 10.4.2008 in M.P.No.2870 of 2007 in W.P.No.1525 of 2005)1. St.Joseph's Charity Trust by its Secretary M.D.Jabamani, having office at No.4, Ganapathy Nagar, Kolathur, Chennai-600 049.2. St.Joseph's Matriculation School, rep.by its Secretary having its office at Teachers' Guild Colony, Chennai-49.... Appellants in SA. Nos.609 & 630 of 2005(Plaintiff)-vs-1. State of Tamil Nadu, rep.by its Secretary, Education Department, Fort St.George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of School Education, Chennai-600 006.3. Deivasagayam .. Respondents in (R3 impleaded as per order of court W.P.No.13003 of 1999 dated 05.1.2000 in WMP.21057/1999) 1. The Chairman, Tamil Nadu Electricity Board, Chennai-2.2. The Assistant Executive Engineer, O & M, M.E.D.C./North, 33/11, K.V.I.C.Substation, Villivakkam, Chennai-49.3. St.Joseph's Charity Trust, rep.by its Secretary M.D.Jabamani, No.8, 1st Street, Teachers' Guild Colony, Chennai-99.4. St.Joseph's Matriculation School, rep.by its Secretary M.D.Jabamani ... Respondents in W.P.No.1525 of 20061. K.Deivasagayam (deceased)2. A.C.Benjamin3. D.Kirubanayagam 4. D.S.Jamesnayagam5. D.Inbanayagam6. D.Selvanayagam7. D.Jeevanayagam8. A.Santhoshrani9. B.Bala Bhaskar10.Hemachoma .. Respondents in S.A. (R.3 to R.10 impleaded as LRs Nos.609 & 630 of 2005 of the deceased first respondent vide order dt.10.4.2008 made in CMP.Nos.3544 to 3549/2007)PRAYER in W.P.No.13003 of 1999 : Petition filed under Article 226 ofthe Constitution of India praying for the issuance of a writ ofcertiorari calling for the records relating to the proceedings of thesecond respondent bearing Na.Ka.No. 123668/E1/96, dated 02.7.1999 andquash the same. PRAYER in W.P.No.1525 of 2006: Petition filed under Article 226 ofthe Constitution of India praying for the issuance of a writ ofmandamus directing the respondents one and two to disconnect the https://hcservices.ecourts.gov.in/hcservices/ electricity supply given to the respondents three and four to thePremises No.8, First Street, Teachers' Guild Colony, Chennai-99comprised inS.Nos.181/4, 192/2B, 193/4 situated at No.71, KonnurVillage, Perambur Purasawalkam Taluk, Chennai District. PRAYER in S.A.Nos.609 and 630 of 2005 : Appeals against the orderdated 16.3.2004 passed by the Additional District Judge, Fast TrackCourt-V, Chennai in A.S.Nos.242 and 243 of 2002 reversing thejudgment and decree in O.S.Nos.11546 and 11165 of 1996 dated26.9.2000 passed by V Assistant City Civil Court, Chennai.For petitioner: Mr.S.Parthasarathy, SC for Mr.J.Ramakrishnan Mr.S.Jaganathan and Mr.K.Thangavelu For respondents : Mr.Suresh, GA (Edn.) Mr.J.Saravanakumar (R4 to R11)in WP.13003 of 1999 Mr.R.Elango for R2 in SA609/2005 Mr.S.V.Jayaraman, SC for Mrs.G.Thilagavathi (R3 to R10)in SA.609 of 2005 Mr.N.Damodaran (R3 & R4) Mr.Sekar (R1 and R2) in W.P.No.1525 of 2006O R D E R These two writ petitions and the two second appeals werespecially ordered to be posted before this Court by the orders of theHon'ble Chief Justice dated 24.10.2008. 2. In W.P.No.13003 of 1999, the petitioner is the St.Joseph'sCharity Trust represented by its Chairman running a school in thename of St.Joseph's Matriculation School. The challenge in the saidwrit petition was to the order dated 02.7.1999 passed by the secondrespondent - Director of School Education in refusing to reconsidertheir earlier decision in granting permission to start classes from Ito VIII in St.Joseph's Matriculation School. This was on the groundthat the dispute over the land in which the school was situated hadnot reached its finality and, therefore, the cancellation ofpermission will continue to be in force. The writ petition wasadmitted on 07.9.1999. Pending the writ petition, an interim-stay wasgranted which was subsequently extended from time to time. 3. W.P.No.1525 of 2006 was filed by K.Deivasagayam (sincedeceased) seeking for a prayer to the Tamil Nadu Electricity Board tosuspend the electricity connection given to respondents 3 and 4 intheir premises at No.8, First Street, Teachers' Guild Colony, https://hcservices.ecourts.gov.in/hcservices/ Chennai-99, situated in Survey No.181/4, 193/2B, 193/4 at No.71,Konnur Village, Perambur- Purasawalkam Taluk, Chennai. This writpetition was admitted on 03.3.2006. This was primarily filed on theground that the petitioner in the writ petition was the owner of thepremises of the land and the respondents therein are running theschool without the consent of the owner. However, the prayer forinterim relief was rejected by this Court by an order dated03.3.2006. It was held that unless the petitioner succeeds, hisprayer cannot be granted. Further, it was stated that suchdisconnection of electricity will affect the running of the schooland that the second appeals over the ownership of the land arepending before this Court. 4. On notice from this Court, a counter affidavit has been filedby the contesting respondents in the writ petition. Since the writpetitioner in W.P.No.1525 of 2006 K.Deivasagayam died, his legalrepresentatives have been brought on record.5. The petitioner in W.P.No.13003 of 1999 also filed a suit inO.S.No.11165 of 1992 before the V Assistant City Civil Judge, Chennaito restrain the defendants in the suit that the defendants and theiragents should not interfere with the peaceful enjoyment of the suitproperty.6. Subsequently, another suit in O.S.No.11546 of 1996 was alsofiled by the same petitioner seeking for specific performancedirecting the defendants to accept Rs.1.5 lakhs and to direct thefirst defendant to execute a sale deed, failing which, the CivilCourt should direct the registration of the sale deed. 7. These suits were tried by the trial Court and were decreed infavour of the plaintiff (the petitioner in the first writ petition)by a judgment and decree dated 26.9.2000. As against the saidjudgment and decree, K.Deivasagayam filed two appeals beingA.S.No.242 of 2002 and A.S.No.243 of 2002 which were finally heard bythe Fast Track Court – V, Chennai. The lower Appellate Court allowedboth the appeals together with costs. It is as against these twoorders of the lower appellate Court, the two Second Appeals have beenfiled. The Second Appeals were admitted on 24.6.2005 and an interiminjunction was also granted by this Court.8. It was agreed by the learned counsel for both sides that thedisposal of the two Second Appeals will also determine the outcome ofthe two writ petitions referred to above. 9. Mr.S.Parthasarathy, learned Senior Counsel appearing for theappellant submitted that one M/s.Dulsi Kesari started a CharitableTrust pursuant to a Trust Deed dated 28.5.1992 which was registeredas Document No.564 of 1992. The Founder of the Trust formed a SchoolCommittee with Jayaseelan Naga Kesari as the Chairman, Edward Sam as https://hcservices.ecourts.gov.in/hcservices/ its Secretary and A.C.Benjamin (second defendant) as its Treasurer.It was stated that the original defendant offered to sell 10 groundsand 220 sq.ft. for running the school and the appellants had agreedto purchase the said land for a total consideration of Rs.2 lakhs. On14.6.1992, the School Committee along with the defendants assembledat the suit property for a foundation stone laying function. As perthe oral agreement, the first defendant delivered possession of theentire suit property. On 15.6.1992, the appellant started theconstruction of the school building. It is also stated that a saleconsideration of Rs.2 lakhs was paid by post-dated cheques on14.7.1992. This included Rs.50,000/- on 14.7.1992, Rs.50,000/- on22.7.1992 and the balance Rs.1 lakh on 22.8.1992. The first defendantafter receiving the cheque dated 14.7.1992 demanded the amounts incash. In the meanwhile, the appellant completed the construction workand started running the school from 15.7.1992. The first defendantpresided over the inaugural function and his family members alsoparticipated in the function. Even when the appellants wereattempting to pay cash, the first defendant had received threeseparate cheques for Rs.50,000/- from D.Jebamani, Veerakesari andAlbert without returning the earlier two cheques with the value ofRs.1,50,000/-.10. Thus according to the learned Senior Counsel, theappellant/plaintiff had performed his part of the oral agreement.Since the earlier cheques given to the first defendant were notcleared through bank, the Trust Secretary wrote a letter to the firstdefendant on 21.10.1992. Though the letter was received by the firstdefendant, he did not give any reply. On the contrary, his son wrotea letter to contact the first defendant for which the Secretary againwrote a letter to meet them at their school premises on 01.11.1992.Once again the first defendant did not give any reply. Therefore, theappellant sent a registered letter dated 01.12.1992 to execute thesale deed. The first defendant having received the letter, had notexecuted the sale deed. It was also stated that the second defendantsince he had misappropriated amounts belonging to the Committee'sfund, he was dismissed from service. As the first and seconddefendants were colluding and are attempting to demolish the schoolbuilding, the suits were filed for the respective reliefs. 11. Per contra, Mr.S.V.Jayaraman, learned Senior Counselappearing for Mrs.G.Thilagavathi for respondents/defendants submitsthat the appellant's case was a false case. There was no offer tosell 10 grounds and 220 sq.ft. for a sum of Rs.2 lakhs. No vacantpossession was given on 14.6.1992 and no construction was started on15.6.1992. In fact, only during the end of April 1992, M/s.JayaseelanNaga Kesari, A.C.Benjamin, Edward Sam, P.Henri Johnson and C.AlbertRaj approached his client and requested him to sell 3 grounds and1560 sq.ft. The first defendant had agreed to sell it for a totalconsideration of Rs.6,20,000/-. On 03.5.1992, a written agreement wasentered and it was signed by M/s.A.C.Benjamin and Henri Johnson. A https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.20,000/- was paid as initial advance. It was further statedthat the further advance of Rs.2 lakhs will be paid to the Trust.Further that the entire sale consideration should be paid on orbefore 02.12.1992. Possession was agreed to be handed over on thedate of execution of the sale deed. It was only during the first weekof June, the first defendant was informed that a Charity Trust wasformed in the name of M/s.Dulsi Kesari on 14.6.1992. His client'sparticipation in the function was with a christian spirit. On14.7.1992, three cheques were issued and the first defendant hadpromised to renew the agreement of sale after the realisation of thecheques. While the first cheque was honoured, the remaining twocheques were returned unpaid. The other allegations to the contrarymade by the appellant were denied. The allegation that his clientshad received three more cheques from others was also denied. Theexistence of oral agreement was also denied. The first defendant hademphatically stated that the possession was not handed over to theappellant. The second defendant had also more or less supported thestand of the first defendant.12. The first suit was filed only to prevent the defendants frominterfering with the possession. The second suit was for specificperformance. The learned Senior Counsel appearing for the appellantsubmitted that the readiness and willingness on the part of theappellant was not disputed. There was no justification in overturningthe finding recorded by the trial Court regarding issue No.3 withreference to the existence of an oral agreement. The trial Court alsofound that a portion of the sale agreement was also executed whereinit is stated that even before the receipt of Rs.50,000/-, possessionwas handed over on 14.6.1992. After the construction was done on15.7.1992, the school was reopened. Therefore, he pleaded that thejudgment and decree of the lower appellate court in reversing thetrial Court's findings must be set aside.13. Per contra, Mr.S.V.Jayaraman, learned Senior Counselappearing for Mrs.G.Thilagavathi, submitted that in a suit forspecific performance, it is the party which comes to the Court willhave to establish their bona fides and also that the other party wasnot ready and willing to perform their part of the obligation. Undersection 64 of the Limitation Act, the period of limitation for filinga suit for specific performance was three years. In the present case,the bare injunction suit was filed during 1992. The cause of actionas found in the plaint showed that it arose on 14.6.1992, the day onwhich the alleged oral agreement of sale was entered into. Therefore,the limitation for filing such a suit does not exist beyond13.6.1995. The second suit for specific performance was filed onlyin the year 1996. Therefore, as found by the lower appellate Court,on the ground of limitation, the second suit is liable to berejected. In para 13 of the written statement, this objection wasraised by the first defendant. https://hcservices.ecourts.gov.in/hcservices/

14. It was also denied that there was any oral agreement forsale. Only a written agreement for sale was entered into by thedefendant. This written agreement dated 31.6.1992 was signed byA.C.Benjamin and P.Henri Johnson. Even the receipt of so called saleconsideration was denied.15. The learned Senior Counsel also placed reliance upon thejudgment of this Court reported in 2007 (1) CTC 243 (G.Ramalingam-vs- T.Vijayarangam). It was stated that it is for the plaintiff toestablish continuous readiness and willingness at all stages rightfrom the date of agreement till the date of hearing of the suit inorder to become entitled to a decree for specific performance. Evenif for a single day, the plaintiff agreement holder is not ready totake the sale deed, equitable remedy should not be granted.Therefore, in this case, not only there was no oral agreement buteven the consideration was not passed on as alleged by theappellant/plaintiff. It was found out that the cheques given by themwas bounced for want of funds and the Trust had no funds. The lowerappellate Court had considered the overall evidence and came to theconclusion that the oral agreement was not proved.16. In reply, Mr.S.Parthasarathy, learned Senior Counsel for theappellant submitted that the so called written agreement pleaded bythe defendants was not produced and proved. After referring to para 9of the written statement, the learned Senior Counsel by way of analternative plea mentioned that since the first defendant had himselfagreed to part with 3 grounds 1560 sq.ft. the parties may be allowedto work out the acquisition of that portion of the land in such a waythat the existing school premises will not be disturbed. The matterwas adjourned for working out a compromise, but no compromise waspossible. Therefore, this Court is not inclined to go into thealternative prayer made by the counsel for the appellant as the issueemanates from a suit and it will have to be determined on the basisof the issues framed already. 17. Mr.S.V.Jayaraman, learned Senior Counsel also placedreliance upon the judgment of this Court reported in 1996 TNLJ 358 ina case relating to V.C.Siddha Chetty and others -vs- GovindappaNaidu. This was to emphasis that if the plaintiff failed to establishthat he was ready and willing to perform his part of the contract heis not entitled for the discretionary relief of specific performance.18. He also placed reliance upon the judgment of the DivisionBench in Kumari Anandan -vs- Dr.T.Balamukunda Rao (died) and threeothers reported in 2002 (3) CTC 462. This is for the purpose ofshowing that a plaintiff who seeks to enforce the oral agreementbetween the plaintiff and the defendant for sale of property mustprove his case and cannot rely upon the discrepancies in the case ofthe defendant to get necessary relief. In fact in that judgment theCourt had gone to the extent of saying that the falsity of the https://hcservices.ecourts.gov.in/hcservices/ defendant's case does not lead to an inference of the plaintiff'scase being proved. The case of the plaintiff must stand or fall onits own merits de hors the inherent weakness in the case of thedefendant. 19. The learned counsel also referred to the judgment of thePatna High Court in Badru Nisha -vs- Yogendra Prasad Sinha reportedin AIR 2006 Patna 71. In para 14 of the said judgment it is statedthat the High Court while exercising its power under section 100 ofthe CPC cannot re-appreciate the evidence and set aside the findingsof facts recorded by the first appellate Court unless the High Courtcomes to the conclusion that the findings recorded by the firstappellate Court were perverse and based on misreading of evidence orbased on no evidence.20. In the present case, a careful perusal of the judgment ofthe lower appellate Court in paragraph 19 shows that the lowerappellate Court held that there is no certainty in the area agreed tobe sold which will be one more factor to prove the improbability ofthe circumstances about the alleged oral agreement. In paragraph 21,the lower appellate Court held that the plaintiffs have not adducedproper evidence for entertaining a suit for specific performance andsince the suit for specific performance is an equitable relief, thesame cannot be granted to the appellant. Even on the question ofhanding over of the property pursuant to the oral agreement, thetrial Court found in para 23 that no possession was delivered. Inpara 25 it also held that the offer of post-dated cheques wouldbetray the case of the appellant/plaintiff and will show that theywere not ready and willing to perform their part of the contract. Itwas also found that the trust never had resources to buy the propertyas found in para 26. The suit notice issued by the plaintiff(Ex.A.75) did not contain any date for the so-called oral agreement.The plaintiff also failed to prove their right to possession of theproperty as they are not the agreement holders and hence they arealso not eligible for any injunction as sought for in the first suit.If the documents in Exs.A.8 to A.13 and Exs.A.54 to A.68 are ignored,there is no other document to show that there was any oral agreementbetween the parties. The further finding in para 30 that the secondsuit was barred by Order 2 Rule 2 CPC also cannot be dislodged bythis Court. Once it is held that the so-called oral agreement dated14.6.1992 does not exist, then the entire edifice of the case builtby the appellant/plaintiff had to necessarily fall. This Courtexercising jurisdiction under section 100, CPC is not willing to holdthat the lower appellate Court's judgment is illegal or liable forinterference in these Second Appeals.21. In the light of the above, both the Second Appeals willstand dismissed with costs and the counsel fee quantified atRs.5000/-. All the interim applications will stand closed. https://hcservices.ecourts.gov.in/hcservices/

22. Once the two second appeals are dismissed, the first writpetition challenging the order of the Director of School Educationholding that until the controversy of the suit land is determined,approval granted will be revoked to run the school is perfectlyvalid. One of the prior requirements for establishing a privateschool or a matriculation school is a clear ownership of the land inwhich the school building must stand. Therefore, the Director wascorrect in stating that pending the suit no permission can begranted. In any event, now that in the two Second Appeals, thepetitioner has failed to prove the ownership of the land, theimpugned order in the first writ petition cannot be set aside. Hence,W.P.No.13003 of 1999 will stand dismissed. No costs. WPMP standsclosed.23. In the writ petition (W.P.No.1525 of 2006) which is filed bythe original defendant seeking to cut off electricity and watersupply to the premises in the suit land, it is directed that on thestrength of the judgments in the two Second Appeals as well as in thefirst Writ Petition, if the petitioner in W.P.No.1525 of 2006addresses to the TNEB authorities, the concerned authority will passorders on the basis of the request made by the defendant/writpetitioner within a period of two months from the date of receipt ofa copy of this order on merits and communicate the result to theparties. The second writ petition is disposed of to the extentindicated above. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jsTo1. The Secretary to Government, Education Department, Fort St.George, Chennai-600 009.2. The Director of School Education, Chennai-600 006.3. The Chairman, Tamil Nadu Electricity Board, Chennai-2.4. The Assistant Executive Engineer, O & M, M.E.D.C./North, 33/11, K.V.I.C.Substation, Villivakkam, Chennai-49. https://hcservices.ecourts.gov.in/hcservices/

5. The Additional District Judge, Fast Track Court V, Chennai.6. The V Assistant City Civil Court at Chennai.7. The Registrar, City Civil Court, Madras.+ 2 CC to M/s.G.Thilakavathi,Advocate,SR.7520,7570+ 4 CC to Mr.S.Jaganathan,Advocate,SR.1458W.P.Nos.13003 of 1999 & 1525 of 2006 andS.A.Nos.609 and 630 of 2005 MBS(CO)EM/14.3.09