High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.4.2007CORAMTHE HON'BLE MR.JUSTICE S.ASHOK KUMARCRP(PD) No. 1549 of 2006 and M.P.No. 1 of 2007 ...1. S.Rangarajan2. R.Varadarajan3. G.Durairajan... Petitioners Vs.1. M/s.Nathan's Foundations Pvt., Ltd., rep. By its Managing Director Mr.K.V.Shankaralingam No.18, Arulambal Street, T.Nagar Chennai-172. Usha Sampath3. V.Sundararaman4. Mr.U.Ramanathan Dr.V.Gopalan (Deceased) 5. K.Uma6. Dr.S.Vijay Balaji7. S.Subashini... Respondents (cause title accepted vide orderof court dated 07.11.2006 and made inMP NO. 1/06 CRPSR NO. 94292/06Civil Revision Petitions are filed under Article 227of the Constitution of India against the order dated27.10.2006 made in I.A.No:14908 of 2005 in O.S.No:5558 of2001, passed by the learned VIII Assistant Judge, CityCivil Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.T.V.Ramanujam, S.C., for Mr.M.S.Krishnan For Respondents : Mr.P.S.Raman S.C., for Mr.M.Ganesan for R.1 Mr.K.V.Ananthakrishnan for R4No appearance : RR 2, 3, 5 and 6 ORDERThe challenge in this Revision Petition is thecorrectness of the order of status dated 27.10.2006,passed in I.A.No.14908 of 2005 in O.S.No.5558 of 2001,based on the memo filed by the respondents herein. 2. The suit has been filed by the petitioner hereinand 5 others against the respondents 1 and 4 and othersherein for the relief of permanent injunction restrainingthe defendants and their men and agents from entering thelands of the plaintiffs or putting up any compound wallor so called development works in respect of the plotsbelonging to the plaintiffs. 3. According to the revision petitioners, all theplot owners formed a Welfare Society and the secondrespondent was elected as the President. But the secondrespondent was functioning in an autocratic manner andentered into a Memorandum of Understanding on 15.7.1999with the first respondent, Promoter, which was not backedby consent of all the plot owners. Consequently, thesecond respondent himself cancelled the above MOU. APower of Attorney was also executed by the secondrespondent to obtain NOC from the Mass Rapid TransportSystem (MRTS). Apart from that 20 plot owners had enteredinto individual agreement with the first respondent todevelop their respective plots. However, the petitionershad not developed any such agreement. While so, thesecond respondent with the assistance of the firstrespondent started putting up a compound wall whichnecessitated the petitioners to file the suit. 4. Pending the suit the first respondent/Promoterfiled I.A., for interim injunction to restrain theplaintiffs from alienating their plots 21,20,22 and 28 toany third party buyers and also dealing in any mannerthat would hamper and jeopardise the project workundertaking by it in the said Colony. However, no interiminjunction was granted by the trial court since no primafacie case had been made out by the first respondent.When the said I.A., was being periodically adjourned, the https://hcservices.ecourts.gov.in/hcservices/ first first respondent filed a memo on 27.10.2006contending that the plaintiffs with the rowdy elementstrying to interfere with the possession of the firstrespondent and making attempts to enter into the suitproperties which would infringes the right of therespondents/defendants but also causes nuisance to theother plot owners and prayed for interim order to carryout the project work at the plots. 5. The trial court after hearing the counsel of therespondents/defendants granted the order of status quoand posted the matter to 30.10.2006 for hearing thearguments of the petitioners/plaintiffs. According to thelearned senior counsel for the revision petitioners, theorder of status quo was granted in the memo filed by therespondents is beyond the scope of the suit as well asI.A., which is for an injunction restraining theplaintiffs from alienating their respective plots,particularly when there is no dispute as to the ownershipof the respective plots. The order is a non speaking oneline ex parte order. Further, according to the learnedsenior counsel for the revision petitioners, the order ofstatus quo based on the memo, without there being anaffidavit and petition, and when the defendants have notasserted any right to the property either in the form ofa separate suit or counter claim cannot be grantedagainst the plaintiffs, which would ultimately amount togranting a greater relief than what could be granted inthe suit itself. 6. On the other hand, the learned senior counselfor the first respondent contended that the CRP filedunder Art.227 of the Constitution of India itself is notmaintainable since such jurisdiction could be invokedonly under extraordinary circumstances and in the instantcase there is no illegality or irregularity in the orderpassed by the trial court as it has exercised thejurisdiction vested with it in the course ofadministration of justice under the given circumstancesand the said order is appealable and therefore invokingthe supervisory jurisdiction of this court is notmaintainable in law. According to the respondents MOUbetween the Welfare Society and the first respondent wasentered on 15.7.1998 and thereafter physical possessionof the lands in the entire lay out was also handed overto the first respondent by the Society and thus the firstrespondent is in the settled possession of the entirelands including that of the petitioners. After some ofthe plot owners entered separate agreement with the firstrespondent development work was initiated in the lay out.The second petitioner has also entered into suchagreement. Thus after the development work was started https://hcservices.ecourts.gov.in/hcservices/ and was in progress by investing several crores ofrupees, the petitioner and five others after havingremained silent for nearly three years filed the suitdisputing the right of the first respondent. Pending thesuit the second and third plaintiffs agreed for theproject work and delivered their plots. According to thefirst respondent it had carried out all the developmentalactivities right from the work of drawing lay out uptothe stage of constructing the compound wall, filing ofthe lands and raisin the ground level by about 15 feet,demarcating the boundaries of each plot with the help ofthe Revenue Officials and also providing amenities likepotable water, drainage, interior rod, electricity, cablenetwork etc., It has also constructed nearly 60prototype houses ;with unique structural designs strictlyin accordance with the plan as approved by thesanctioning authorities. Now after the development thathad taken place to gain profit, the petitioners attemptedto alienate their lands to their party purchasers whichaccording to the first respondent would defeat theirrights accrued to them under the MOU. Therefore theyfiled the I.A., in the suit filed by the petitioners. 7. According to the learned senior counsel for therespondents, though the petitioners filed their counter,but did not contest the I.A., and in the meanwhile, themain suit itself was posted for arguments afterexamination of witnesses was over. The petition taken outby the petitioners to amend the suit relief frompermanent injunction to the relief of mandatoryinjunction to remove the compound wall was also dismissedby the trial court. According to the respondents, infact the first respondent though in physical possessionof the entire layout had not done anything that wouldchange the status quo of the suit properties in anymanner during the pendency of the suit. But it is onlythe petitioners are attempting to alienate their plots tothird party buyers, which is detrimental not only to thefirst respondent, but also to the other owners in thecolony. 8. It is also submitted by the learned seniorcounsel that in an Arbitration Case in respect of thesame project between the first respondent and anotherplot owner the Arbitrator has awarded a compensation ofRs.2 lakhs for the breach of contract committed by theplot owner. Therefore, the petitioners to some howalter the character of the suit property, wanted toforcibly enter into their plots and put up constructionand with the help of rowdy elements made such an attempton 27.10.2006. Only in such circumstances, the firstrespondent constrained to file the I.A.,. On the day offiling after hearing the arguments of the first andfourth respondents herein the matter was adjourned to https://hcservices.ecourts.gov.in/hcservices/

30.10.2006 for the arguments of the respondent andstatus quo was ordered till then. The petitionerscounsel did not argue on 30.10.2006 and it was adjournedto 6.11.2006. Even on 6.11.2006 the petitioners counseldid not argue the case and the matter was posted to21.11.2006 extending the status quo. But withoutcontesting the I.A., the petitioners preferred this CRPwithout filing an appeal, which is an abuse of process oflaw. Learned Senior counsel for the respondentscontended that the order of status quo was passed only inthe I.A., and not in the memo as contended by therevision petitioners. 9. Considering the above submissions of the learnedcounsels, it is clear that the order of status quogranted by the trial court is not prejudicial to thecause of both sides and by passing the order of statusquo, the rights of the parties are not finally determinedin the I.A., and the petitioners will be provided everyopportunity to advance their arguments in the I.A., bythe trial court. Further, under Order 39 Rule 1(a) thedefendants are also entitled to file an application fortemporary injunction if the suit property is in dangerof being wasted or damaged, alienated by any party to thesuit. It is also to be noted that the petitioners arenot prevented in any manner in advancing their argumentsin the pending I.A., before the trial court. The ApexCourt in its judgment reported in AIR 2000 SC 3032 hadcategorically stated that invoking the constitutionalremedy under Article 227 of Constitution of India shouldnot be entertained when there is an efficaciousalternative remedy of appeal provided under the Statute.In the present case the petitioners have without evencontesting the I.A., and without exhausting the appealremedy, have invoked the jurisdiction under Art.227 ofthe Constitution of India. 10. In AIR 2005 SC 104 the Hon'ble Supreme Court ofIndia as well as this Court in the decision reported in2005 (3) MLJ 689 have clearly held that the status quoof a suit property has to be preserved at all costsand no party should be allowed to disturb the nature ofthe suit property including its alienation, during thependency of the suit. Admittedly, the petitioners havechallenged the very right of the first respondent flowingfrom the MoU. In the main suit, it is stated thatevidence is over and the suit is posted for arguments. Atthis juncture, if anything is done to alter the nature ofthe suit property by alienation as attempted by thepetitioners, that would cause lot of prejudice to therights of the respondent in case of their succeeding inthe suit. Therefore, the I.A., and the order of statusquo passed in the I.A., are very much within the scope https://hcservices.ecourts.gov.in/hcservices/ of the main suit and there is absolutely no illegality orlegal infirmity in the said order. 11. It is also to be pointed out that if the firstrespondent's right under the MOU is upheld by the trialcourt, then there will be a lot of prejudice to the firstrespondent. It is also to be seen that the firstrespondent has invested several crores of rupees indeveloping the lay out and constructing the prototypehouses. For nearly three years, the petitioners haveremained silent and only at the stage of constructing thecompound wall, they rushed to file the suit. If thepetitioners are permitted to alienate their plots to someother third party buyers who may construct houses thereof their choice, it may look odd and elevation of thecolony when under the MOU all the plot owners have agreedto construct the houses with the same size and design.Therefore, in such circumstances, if the order of statusquo is vacated, by such alienation and construction, thevery beauty of the uniformity in the structures in thecolony may get spoiled, though the petitioners may havegot individual right to construct houses of their choice.Therefore, I do not find find any ground to interferewith the order of status quo at this stage. 12. In AIR 2005 SC 104 (Maharwal Khewaji Trust Vs.Baldev Dass), in an identical case, the Hon'ble SupremeCourt has held as follows:-"Unless and until a case of irreparableloss or damage is made out by a party to thesuit, the Court should not permit the natureof the property being changed which alsoincludes alienation or transfer of theproperty which may lead to loss or damagebeing caused to the party who may ultimatelysucceed and may further lead to multiplicityof proceedings. In the instant case no suchcase of irreparable loss is made out exceptcontending that the legal proceedings arelikely to take a long time and therefore, therespondent should be permitted to put thescheduled property to better use. In thefacts and circumstances of the case, thelower appellate court and the High Court werenot justified in permitting the respondent tochange the nature of property by putting upconstruction as also by permitting thealienation of the property, whatever may bethe condition on which the same is done. Inthe event of the appellant's claim beingfound baseless ultimately, it is always opento the respondent to claim damages or, in anappropriate case, the Court may itself awarddamages for the loss suffered, if any in this https://hcservices.ecourts.gov.in/hcservices/ regard. Since the facts of this case do notmake out any extraordinary ground forpermitting the respondent to put upconstruction and alienate the same, Courtsbelow erred in making the impugned orders.The said orders are liable to be set aside."13. The above decision would squarely apply to thefacts of the present case coupled with the fact that onthe earlier occasion, in respect of the same subjectmatter of the property, in an Arbitration Proceedings,the Arbitrator has awarded a compensation ofRs.2,00,000/= on the owner of the plot, for breach of thecontract with the first respondent/promoter. 14. However it is to be pointed that the merits ofthe rival contentions of the parties to the suit as wellas the rights of the parties in relation to the suitproperties can be decided only in the trial of the suit,which is also in the arguments stage, if any finding isrendered one way or the other in this CRP touching on themerits of the subject matter of the suit, it would causegreat prejudice to both the parties. Therefore, this CRPis dismissed with a direction to the trial court todispose of the suit on merits and according to law,which is ripe for arguments within a period 2 months fromthe date of receipt of a copy of this order, withoutbeing influenced by any of the observations made in thisorder. 15. Consequently, connected M.P.No:2 is alsodismissed and M.P.No:3 is allowed. No costs. GkvSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Copy to:The Registrar,City Civil Court,Chennai. 2. The VIII Assistant JudgeCity Civil Court, Chennai+ one cc to M./s. Sarvabhauman Associates, sr no. 23783+ one cc to M/s. K.V. Anantha Krishnan,Advocate sr no.23355+ one cc to Mr. M. Ganesan, Advocate sr no. 23616MBR(CO)NM(12.04.07)CRP(PD)No.1549 of 2006