Bhavani Electricals v. Ammakamma Charities Swarnaraman & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-10-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOSA Nos.325 and 326 of 2009andMP No.1 of 2009 in OSA 325 of 2009andMP Nos.1 and 2 of 2009 in OSA 326 of 2009Bhavani Electricalsrep. By its ProprietorPannalalGround Floor, No.21 (New No.41)NSC Bose Road, Chennai 600 079... Appellant in both appealsvs1.Ammakamma Charities Rep by its Managing Trustee Swarnaraman No.21, NSC Bose Road, Madras 600 079.2.Swarnaraman3.MJF.Ln.D.B.Amaresh4.K.L.Sekar5.G.R.Basavarajan6.Jotheeswaran7.Noorul Ameen8.Seema Gold Covering Works9.Nalli Covering10.Rajeswari Stores11.Mummy Daddy Banians Respondents 7 to 11 carrying on business at Ground Floor No.21 (New No.41) NSC Bose Road, Chennai 600 079.12.Vigneshkumar Jewellers13.Vijayalakshmi Art Jewellery Respondents 12 & 13 carrying on business at First Floor No.21 (New No.41) NSC Bose Road Chennai 600 079.14.Sankruthi Jewellers carrying on business at Second Floor, No.21, (New No.41), NSC Bose Road, Chennai 600 079.. Respondents in(Respondent 8 to 14 are given up both appeals https://hcservices.ecourts.gov.in/hcservices/ Original side appeals preferred under Order 36 Rule 11 of O.S.Rules read with Clause 15 of Letters Patent against the common orderof this Court dated 15.7.2009 made in A.Nos.3399 and 3400 of 2008 inC.S.No.685 of 1993.For Appellant: Mr.V.Raghavachari for Mr.M.Raja SekharFor Respondents: Mr.V.Bhiman for M/s.SampathkumarAssociates for R-1COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)These two intracourt appeals challenge a common order of thelearned Single Judge of this Court made in Application Nos.3399 and3400 of 2008 in C.S.No.685 of 1993, a suit for recovery of possessionof the plaint schedule mentioned property and also for mandatoryinjunction.2.The Court heard the learned Counsel for the appellant and alsofor the respondents.3.These appeals have arisen under the following circumstances:(a) According to the plaintiffs, the schedule mentioned propertyannexed to the plaint belonged to the first plaintiff a Charity, andthe first defendant was a trespasser, and taking advantage of thesituation he was assisting the first plaintiff trust in relation tothe court proceedings, and he trespassed into the property on3.5.1993, and thereafter, he was making certain constructions. Thesuit was filed in C.S.No.685 of 1993. According to the plaintiffs,they also sought for a direction to the first defendant to pay a sumof Rs.10 lakhs towards damages for use and occupation.(b) Originally interim injunction application was filed, andthough interim injunction was granted, it was subsequently vacated.Thereafter, an appeal was taken in OSA No.109 of 1993 against theorder of vacating injunction, and it was allowed on 22.8.1995. Sincethe directions given by the Court were disobeyed, there was acontempt proceeding in Contempt Petition No.454 of 2000, and theDivision Bench of this Court on 14.11.2000 made an order directingthe first defendant to deposit a sum of Rs.2 lakhs into the Courtwithin a period of three weeks and also file an undertaking asstipulated therein. A direction was also given to him to deposit therent into the Court realised from the two rooms which were alreadylet out by him. He has not deposited so. But he took a SLP, and thesame was also dismissed. The Supreme Court has given stay of sentenceof imprisonment and directed him to deposit Rs.2 lakhs; but, he didnot do so. (c) According to the plaintiffs, while the matter stood thus,the proposed defendants 2 to 9 were inducted as tenants at differentportions of the property, and under such circumstances, there arose anecessity for making the proposed parties as parties to the suitsince it was a suit for recovery of possession, and the firstdefendant was a trespasser, and he has actually inducted the proposedparties, and even if a decree is made against the first defendant,further proceedings have got to be initiated against the proposedparties, and hence it has become necessary to implead them asparties. The other application was to direct the proposed defendants2 to 9 to deposit the rental into the Court which they were actually https://hcservices.ecourts.gov.in/hcservices/ paying to the first defendant. (d) A counter affidavit was filed by the first defendant andalso the proposed parties. (e) The learned Single Judge after looking into the materialsand hearing the submissions made, took the view that it was a fitcase where the proposed parties should be impleaded as parties, andsince the first defendant has not deposited the amount before theCourt, it is a fit case where the proposed parties should be directedto deposit the rental into the Court. Thus these two appeals havearisen before this Court.4.Advancing arguments on behalf of the appellant, the learnedCounsel would submit that in the instant case, the entire cause ofaction as per the original pleading, was against the first defendantwho was actually a tenant; that though it is contended by theplaintiffs that he was a trespasser, he has filed a written statementstating that he was originally a tenant, and he was put inpossession, and he has made payment of advance also, and he was astatutory tenant in the property; and that as far as the proposeddefendants 2 to 9 are concerned, they have nothing to do either withthe cause of action or with the earlier proceedings or the pendingproceedings. 5.Added further the learned Counsel that in the instant case,they were actually neither proper parties nor necessary parties; thatif the Court comes to the conclusion that the first defendant isactually a trespasser and if a decree for recovery of possession isgranted, then only the other questions would arise; that in theinstant case, so long as specific averments are not made against theproposed defendants 2 to 9, they cannot be made as parties; thatunder the circumstances, the order of the learned Single Judge thatthey should be impleaded as defendants 2 to 9 has got to be setaside; that in the instant case, they have been directed to depositthe rent into the Court; that actually the scope of the suit is onlyfor recovery of possession against the first defendant and also formandatory injunction to demolish and remove the constructions which,according to the plaintiffs, were illegal and unlawful; that as faras these proposed parties are concerned, they have been under thefirst defendant as statutory tenants, and under the circumstances, itis not a fit case where they could be added as parties. 6.In support of his contentions, the learned Counsel relied on adecision of this Court reported in AIR 1968 MADRAS 287 (FIRM OFMAHADEVA RICE AND OIL MILLS AND OTHERS V. CHENNIMALAI GOUNDER).7.The Court heard the learned Counsel for the respondents on theabove contentions and paid its anxious consideration on thesubmissions made.8.After looking into the materials available, this Court is ofthe considered opinion that no case is made out by the appellant evenfor admission of these appeals. It was a suit filed by the firstplaintiff Trust along with the other Trustees against the firstdefendant alleging that he is a trespasser, and taking advantage ofthe situation, he was assisting the Trust in its activities, and hegot into the property, and thus the relief of recovery of possession https://hcservices.ecourts.gov.in/hcservices/ should be decreed. Along with that relief, they have also asked formandatory injunction alleging that certain constructions were madepending proceedings, and they should be demolished and removed.According to the plaintiffs, they have also asked for damages for useand occupation. It is a case where the matter is pending from 1993.Originally there was an interim injunction application filed, and itwas also made against the first defendant. The interim injunctionoriginally granted, was vacated. As against that order, the appealwas brought forth, and it has also been allowed. It is pertinent topoint out that at the time of the disposal of the appeal, theDivision Bench has given an order stating that the respondent shoulddeposit a sum of Rs.2 lakhs into the Court within a period of threeweeks and file an undertaking that (i) not to put up any furtherconstruction, (ii) not to let out the rooms said to have beenconstructed, but let out so far and (iii) to deposit the rent intothe Court realized from two rooms which had been let out by him. Asfar as this order was concerned, no material was placed that theorder was obeyed by the first defendant at any point of time. 9.Now, it is brought to the notice of the Court that theproposed defendants 2 to 9 have actually been inducted in theproperty as tenants. It is also pertinent to note that the appellantbefore the Court is not the first defendant, but the second proposedparty, and the counter filed by the proposed party No.2 would clearlyindicate that he has been a tenant under the first defendant makingpayment of rental. Hence it would be quite clear that while theplaintiffs have come forward with the suit that the first defendanthimself was a trespasser, and pending the suit he has madeconstructions and let out the property, in the face of the order madeby the Division Bench, as stated above, the first defendant hasinducted all these persons as tenants pending the proceedings. Underthe circumstances, as rightly observed by the learned Single Judge,in a given case where if a decree is made as against the firstdefendant at the end of the trial for recovery of possession, itwould become impossible and could not be executed in full if they arenot added as parties. In a given case where the party is a necessaryparty, the test to be applied is that in the absence of such party,the issues before the Court could not be decided, and effectiveremedy could not be granted. If this settled principles of law isapplied, this Court is satisfied that the proposed parties arenecessary parties to be impleaded. 10.It is the specific case of the plaintiffs that the firstdefendant is a trespasser, and the proposed parties were inducted bythe first defendant, and hence they should be added as parties tohave the issues properly decided, and effective and efficaciousremedy could be granted at the time of trial. 11.Added further in the instant case, originally there was adirection given by the Division Bench to the first defendant todeposit a sum of Rs.2 lakhs being the rental what was recovered byhim from the tenants, but he has failed to do so, and in future alsohe was directed to deposit the rental into the Court, but he hasfailed number of years. At that juncture, it became necessary topass an order directing the proposed parties who admittedly were alltenants under the first defendant and inducted into possession, to https://hcservices.ecourts.gov.in/hcservices/ deposit the rental into the Court. Accordingly, the learned SingleJudge has made such an order. This Court is unable to notice anymerit in these appeals. 12.In the result, both these original side appeals fail, andthey are dismissed confirming the order of the learned Single Judgeand leaving the parties to bear their costs. Consequently connectedMPs are also dismissed.nsvSd/Asst.Registrartrue copy/Sub Asst.Registrar OSA Nos.325 & 326 of 2009ToThe Sub-Assistant Registrar, Original Side, High Court, madras1CC to M/s Sampathkumar Associates (SR.53501)PKB (CO)SS (26.10.2009)