K.V.Natarajan v. K.V.Anantharaj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.04.2008CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANC.M.A.No.3518 of 20061. K.V.Natarajan2. N.Lakshmi .... Appellantsvs.1. K.V.Anantharaj2. Dr.A.Prabhavathi3. Rajas Educational Trust Rep. By its Defacto Honorary Chairman and Life Trustee Dr.Prabhavathi Now at P.V.Polytechnic College, Pelakuppam Village, Tindivanam – 604 001. .... RespondentsAppeal filed against the Order, dated 11.09.2006 made inI.A.No.273 of 2005 in O.S.No.72 of 2005 on the file of thePrincipal District Judge, Villupuram. For Appellants: Mr.T.V.Ramanujam, Senior Counsel for Mr.R.Saravana KumarFor Respondents: Mr.P.S.Raman, Senior Counsel for Mr.M.Rajasekaran for R1 Mr.R.Gandhi, Senior Counsel for Mr.K.Ravichandra Babu for R2 and R3JUDGMENTThis Civil Miscellaneous Appeal has been preferred against theOrder, dated 11.09.2006 made in I.A.No.273 of 2005 in O.S.No.72 of2005 on the file of the Principal District Judge, Villupuram. https://hcservices.ecourts.gov.in/hcservices/

2. The appellants herein, as plaintiffs filed the suit inO.S.No.72 of 2005 before the trial court, against the respondents,seeking decree of mandatory injunction 1) directing the respondentsherein to hand over the possession of the suit property, namely,P.V.Polytechnic College, Tindivanam every alternate year asprovided under the compromise deed, dated 11.06.2001. 2) directingthe second respondent herein to hand over the Chairmanship of RajasEducational Trust to the first appellant or his family membersevery alternate three years, as provided under the compromise deed,dated 11.06.2001 and 3) declaring the resolutions passed by therespondents on 28.03.2004 are null and void.3. The Interlocutory Application in I.A.No.273 of 2004 hadbeen filed under Order XXXIX Rule 2 r/w Section 151 CPC, seeking toissue mandatory injunction, directing the respondents to hand overthe management of P.V.Polytechnic College, Tindivanam and directingthe second respondent herein to hand over the Chairmanship of RajasEducational Trust to the first appellant herein forthwith. Thoughthe petitioners have not specifically asked for interim mandatoryinjunction, in the Interlocutory Application before the trialcourt, learned Senior Counsel appearing for the appellantssubmitted that the appellants herein as petitioners filed theInterlocutory Application in the suit only for interim mandatoryinjunction, pending disposal of the suit.4. The trial court, considering the documents marked on bothsides and the arguments advanced by both the learned counsel hasheld that the appellants herein are not entitled to interimmandatory injunction, as prayed for and accordingly, dismissed thepetition. Aggrieved by which, this Civil Miscellaneous Appeal hasbeen preferred by the petitioners / plaintiffs therein.5. Mr.T.V.Ramanujam, learned Senior Counsel appearing for theappellants strenuously submitted that the court below has failed toappreciate the compromise deed, dated 11.06.2001, entered intobetween the parties to the Civil Miscellaneous Appeal. According tothe learned Senior Counsel, the first respondent took over theadministration of P.V.Polytechnic College and similarly, the secondrespondent herein took over the Chairmanship of Rajas EducationalTrust only by virtue of the compromise deed, dated 11.06.2001 andthat the court below has completely ignored the categorical findingof the Division Bench of this Court made in C.M.A.No.564 of 2003.The respondents, who got the benefit out of the compromise deed bytaking over the management, cannot subsequently challenge thevalidity of the compromise deed and file the suit. It was furthercontended by the learned Senior Counsel appearing for theappellants that the appellants herein were entitled to the interim https://hcservices.ecourts.gov.in/hcservices/ relief of mandatory injunction as sought for in the InterlocutoryApplication. 6. Mr.P.S.Raman, learned Senior Counsel appearing for thefirst respondent herein drew the attention of this Court to theorder, dated 07.10.2004 passed by Hon'ble Mr.Justice S.Ashok Kumarin A.No.3712 of 2004, A.Nos.3191 and 3192 of 2004 and O.A.No.725 of2004 in C.S.No.697 of 2004 between the very same parties, confirmedby the Division Bench of this Court in O.S.A.Nos.46 and 47 of 2005,dated 29.03.2005 and submitted that the appellants herein are notentitled to interim mandatory injunction. It is not in dispute thatA.No.3192 of 2004 had been filed by the appellants herein aspetitioners 2 and 3 along with the first petitioner RajasEducational Trust represented by its Life Chairman-cum-Trustee,Professor K.V.Natarajan, the first appellant herein, seeking anorder of interim injunction restraining the respondents herein,their men and agents from interfering with the management of thefirst appellant herein and also in the Management of the day todayaffairs of the trust and P.V.Polytechnic college till thecompletion of the tenure, on 04.01.2005 and for further extendedperiod of 1 year 6 months and 25 days. 7. In O.A.No.725 of 2004, similar interim injunction wassought for by the appellants herein. The learned single Judge, by acommon order held that the appellants herein are not entitled tothe relief sought for, since admittedly, they were not in thepossession of the property, namely, the Trust and also not in theadministration of P.V.Polytechnic College, Tindivanam, on the dateof the application. The order at paragraph number 8 reads asfollows :"Admittedly, the plaintiffs are not inpossession of the property, i.e., Trust and notin the administration of P.V.PolytechnicCollege at Pelakuppam village, Tindivanam asseen from the affidavit of the Principal of thesaid College (page 136 of the typed set). It isthe settled position of law that the party whois not in possession is not entitled for aninjunction. However, rights of the parties inpursuance of an earlier agreement to haveadministration on rotation basis shall bedecided in the respective suits filed by theparties which are pending before the Fast TrackCourt-I and the Principal District Munsif Courtat Tindivanam."8. With the findings, the learned single Judge dismissed theapplication filed by the appellants, seeking interim injunction.Aggrieved by which, the appellants herein preferred appeal in https://hcservices.ecourts.gov.in/hcservices/ O.S.A.Nos.46 and 47 of 2005. A Division Bench of this Court by itscommon judgment, dated 29.03.2005 delivered by Hon'ble Mr.JusticeP.Sathasivam has confirmed the order passed by the learned singleJudge and dismissed the Original Side Appeals and the connectedcivil miscellaneous petitions, holding that there was no merit inthe Original Side Appeals. In the common judgment, at paragraphnumber 4, the Division Bench has held has follows :"Coming to the finding that the plaintiffs arenot in possession of the property i.e., theTrust and not in administration ofP.V.Polytechnic College at Tindivanam, thelearned Single Judge heavily relied on theaffidavit of the Principal of the College. Thesaid affidavit is available in the additionaltyped set of papers. A perusal of the same wouldclearly support the conclusion arrived at by thelearned Single Judge. Though, learned counselappearing for the appellants vehementlycontended that the person who sworn to anaffidavit namely, the Principal, has alreadybeen suspended and in such an event, it is butnatural for the Principal to support the case ofother side, it is the case of the respondentsthat even now the said Principal continues asthe Principal of the educational institution.Unless and until the order of suspension issettled one way or other, as rightly pointed outby the learned Single Judge, the solemnstatement made by the Principal cannot beignored. In such circumstances, we agree withthe conclusion arrived at by the learned SingleJudge and reject the contra argument made bylearned counsel for the appellants."9. Then, the appellants herein preferred Special LeavePetition before the Hon'ble Supreme Court, which was also dismissedby the order, dated 11.05.2005 by the Hon'ble Apex Court. There isno dispute on the factual aspects. 10. Mr.R.Gandhi, learned Senior Counsel appearing for therespondents 2 and 3 submitted that there are several cases pendingbefore the trial court between the same parties on the subjectmatter and therefore, the appellants should have co-operated onlyfor the early disposal of the suits, after the trial, instead theappellants have preferred this Civil Miscellaneous Appeal, seekingmandatory injunction, the main relief sought for in the suit. Thelearned Senior Counsel further contended that pursuant to theresolution passed on 28.03.2004, new trustees have been appointed. https://hcservices.ecourts.gov.in/hcservices/ Though notice was sent to the appellants herein, they did notattend the Board Meeting and the resolutions were passed on28.03.2004. In such circumstances, according to him, withoutadducing oral and documentary evidence with regard to the factualaspects, relating to the suits, the validity of the same cannot bedecided and the suits are ripe for trial, hence, the trial courtmay be directed to dispose the suits on merits within the timeframe fixed by this Court.11. According to Mr.R.Gandhi, learned Senior Counsel in viewof the common judgment, dated 28.05.2007 rendered by the DivisionBench of this Court and the dismissal of the Special LeavePetition,the appellants herein are not entitled to the reliefsought for. 12. Mr.P.S.Raman, learned Senior Counsel appearing for thefirst respondent contended that as per Order XXXIX Rules 1 and 2,for seeking interim mandatory injunction, apart from prima faciecase and balance of convenience, there should be irreparable lossor injury to the person seeking the relief. However, in this case,the appellants have not established any prima facie case, balanceof convenience in their favour and also any irreparable loss orinjury to be incurred by them. According to him, the trial courthas rightly dismissed the Interlocutory Application.13. Order XXXIX Rules 1 and 2 of C.P.C reads as follows :"1. Cases in which temporary injunction may begranted – Where in any suit it is proved byaffidavit or otherwise -(a) that any property in dispute in a suit isin danger of being wasted, damaged or alienatedby any party to the suit, or wrongfully sold inexecution of a decree, or (b) that the defendant threatens, or intends,to remove or dispose of his property with aview to defrauding his cereditors.(c) that the defendant threatens to dispossess,the plaintiff or otherwise cause injury to theplaintiff in relation to any property indispute in the suit, the court may by ordergrant a temporary injunction to restrain suchact, or make such other order for the purposeof staying and preventing the wasting,damaging, alienation, sale, removal ordisposition of the property or dispossession ofthe plaintiff, or otherwise causing injury tothe plaintiff in relation to any property indispute in the suit as the Court thinks fit, https://hcservices.ecourts.gov.in/hcservices/ until the disposal of the suit or until furtherorders.2. Injunction to restrain repetition orcontinuance of breach – (1) In any suit forrestraining the defendant from committing abreach of contract or other injury of any kind,whether compensation is claimed in the suit ornot, the plaintiff may, at any time after thecommencement of the suit, and either before orafter judgment, apply to the Court for atemporary injunction to restrain the defendantfrom committing the breach of contract orinjury complained, of, or any breach ofcontract or injury of a like kind arising outof the same contract or relating to the sameproperty or right.(2) The Court may by order grant suchinjunction, on such terms as to the duration ofthe injunction, keeping an account, givingsecurity, or otherwise, as the Court thinksfit. "14. The Hon'ble Supreme Court in Gurswaroop Joshi vs. BeenaSharma, reported in 2006 (3) CTC 53 has held that in an appealinterim order in mandatory nature should not be granted, when therelief sought for is similar to that of the main prayer, since suchorder would render the appeal itself infructuous. As per the rulingof the Apex Court, grant of mandatory injunction in such casessuffers from manifest error.15. In the suit pending before the trial court, the prayersought for by the appellants herein is to direct the respondents tohand over the possession of the suit property, namely,P.V.Polytechnic College and to direct the second respondent hereinto hand over the Chairmanship of Rajas Educational Trust,Tindivanam to the first appellant herein. In the InterlocutoryApplication, in I.A.No.273 of 2005 filed therein, the appellantsherein have sought for the prayer, under Order XXXIX Rule 2 asfollows :"In the light of the facts and circumstancesdescribed in the accompanying affidavit, it ishumbly prayed that the Hon'ble Court may bepleased to issue mandatory injunction to directthe respondents to hand over the management ofP.V.Polytechnic, Tindivanam and directing thesecond respondent to hand over the Chairmanshipof Rajas Educational Trust to the firstpetitioner herein forthwith for the same period https://hcservices.ecourts.gov.in/hcservices/ as the respondents were in office reckoned from11.06.2001."16. As contended by the learned Senior Counsel appearing forthe respondents, the prayers in the suit and in the InterlocutoryApplication are similar, seeking mandatory injunction. Therefore,the decision referred to above is applicable to the facts andcircumstances of the case on hand.17. Mr.T.V.Ramanujam, learned Senior Counsel appearing for theappellants would contend that the respondents herein took over theadministration of the Polytechnic and the Chairmanship of theeducational trust, as per the compromise deed, dated 11.06.2002,which was duly registered in the Sub-Registrar's Office, the termof the first respondent came to an end on 10.06.2002, the firstappellant was hoping to take over the administration on that dayfrom the second respondent, however, compromise deed, dated11.06.2001 was executed with the consent of both the parties,strangely, the respondents 1 and 2 herein instituted the suit inO.S.No.121 of 2002 before the Sub-Court, Tindivanam, just threedays prior to the date of handing over the charges to the firstappellant and also obtained interim injunction against theappellants herein in I.A.No.250 of 2002 restraining the appellantsherein from interfering with the management of Rajas EducationalTrust and P.V.Polytechnic College, Tindivanam. Aggrieved by which,the appellants preferred C.M.A.No.564 of 2003 against the orderpassed in the said Interlocutory Application. It is not in disputethat as per the Judgment of the Division Bench, dated 23.12.2003,delivered by Hon'ble Mr.Justice K.Govindarajan, this Court, allowedthe C.M.A.No.564 of 2003 and set aside the order passed by thetrial court. It is not in dispute that the respondents herein fileda suit in O.S.No.121 of 2002 and obtained interim injunctionrestraining the appellants herein from interfering with themanagement of the Polytechnic. However, the C.M.A.No.564 of 2003preferred by the appellants was allowed, whereby, the order ofinjunction granted in favour of the respondents herein was setaside. Admittedly, there was no direction by the Division Bench ofthis Court to the respondents herein to hand over theadministration of the Polytechnic to the appellants in the CivilMiscellaneous Appeal.18. In A.No.3192 of 2004 and O.A.No.725 of 2004 in C.S.No.687of 2004, the appellants herein had sought for injunctionrestraining the respondents herein from in any manner interferingwith the management of the first appellant herein, in the day todayaffairs of the trust and the Polytechnic. Admittedly, the prayersought for by the appellants herein was negatived by the learnedsingle Judge, by order, dated 07.10.2004, since the administrationof the Polytechnic and the Trust, on the date of application was https://hcservices.ecourts.gov.in/hcservices/ not with the appellants. It is not in dispute that the appellantswere not in possession of the property, namely, Rajas EducationalTrust and also not in the administration of the P.V.PolytechnicCollege, Tindivanam on the date of filing the application.Considering the settled proposition of law, the learned singleJudge, Hon'ble Mr.Justice S.Ashok Kumar was pleased to dismiss theapplications.19. Aggrieved by which, O.S.A.Nos.46 and 47 of 2005 werepreferred by the appellants. By common judgment, dated 29.03.2005,passed in O.S.A.Nos.46 and 47 of 2005, the Division Bench of thisCourt has confirmed the order passed by the learned single Judgeand dismissed the Appeals preferred by the appellants. Admittedly,the Special Leave Petition preferred by the appellants was alsodismissed on 11.05.2005 by the Hon'ble Apex Court, which is not indispute.20. It is seen that a Division Bench of this Court, in SakthiDurga Builders and Developers vs. P.S.Raman, reported in 2007 (3)CTC 163 has held that under Order XXXIX Rules 1 and 2, interimmandatory injunction can be granted only when there is a verystrong prima facie case, apart from other aspects regardingirreparable loss and the balance of convenience and the tests to besatisfied are far from stringent in case of an interim mandatoryinjunction and can be granted only in exceptional cases.21. In Dorab Cawasji Warden vs. Coomi Sorab Warden and others,reported in 1990 (2) SCC 117, considering the scope of issuing Ad-interim Mandatory Injunction, the Hon'ble Apex Court, afterreferring to several authorities, has held as follows :"The relief of interlocutory mandatoryinjunctions are thus granted generally topreserve or restore the status quo of the lastnon-contested status which preceded the pendingcontroversy until the final hearing when fullrelief may be granted or to compel the undoingof those acts that have been illegally done orthe restoration of that which was wrongfullytaken from the party complaining. But since thegranting of such an injunction to a party whofails or would fail to establish his right atthe trial may cause great injustice orirreparable harm to the party against whom itwas granted or alternatively not granting of itto a party who succeeds or would succeed mayequally cause great injustice or irreparableharm, Courts have evolved certain guidelines.Generally stated these guidelines are :1. The plaintiff has a strong case for trial. https://hcservices.ecourts.gov.in/hcservices/ That is, it shall be of a higher standard thana prima facie case that is normally requiredfor a prohibitory injunction.2. It is necessary to prevent irreparable orserious injury which normally cannot becompensated in terms of money.3. The balance of convenience is in favour ofthe one seeking such relief."22. In the light of the various decision of the Hon'ble ApexCourt and the Division Bench of this Court, it is clear that forissuance of prohibitory injunction, under Order XXXIX Rules 1 and 2CPC prima facie case and balance of convenience is a basicrequirement. However, in case of interim mandatory injunction,there should be a strong case for trial in favour of the personseeking injunction, the balance of convenience should also be infavour of the person or persons seeking such relief and thereshould be a circumstance that if mandatory injunction is notgranted there would be irreparable loss or injury to the personseeking the relief, otherwise interim mandatory injunction cannotbe granted.23. In the instant case, it is not in dispute that the suitfiled by the respondents seeking prohibitory injunction and otherrelief in O.S.No.121 of 2002 and the suit filed by the appellantsin O.S.No.72 of 2005 against the respondents seeking mandatoryinjunction and other relief are pending before the trial court. Itis also not in dispute that both the cases are ripe for trial.Admittedly, the appellants herein were not in possession andmanagement of the Polytechnic and trust on the date of filing ofthe suits. As contended by the learned Senior Counsel appearing forthe respondents, there are triable issues in both the suits basedon oral and documentary evidence to be adduced by both the parties.24. As per the Judgment of the Division Bench of this Court,dated 23.12.2003 in C.M.A.No.564 of 2003, delivered by Hon'bleMr.Justice K.Govindarajan, the interim injunction granted by thetrial court in favour of the respondents herein in I.A.No.250 of2002 in O.S.No.121 of 2002 on the file of the Sub-Court, Tindivanamwas set aside and the subsequent SLP preferred by the respondentswas also dismissed. Similarly, another Division Bench of this Courtin O.S.A.Nos.46 and 47 of 2005, by common judgment, dated29.03.2005, delivered by Hon'ble Mr.Justice P.Sathasivam, hasnegatived the claim of the appellants herein, by confirming theorder of the learned single Judge. The Special Leave Petitionpreferred by the appellants herein was also dismissed by theHon'ble Apex Court on 11.05.2005. In such circumstances, the onlyremedy available for both the parties to the Civil MiscellaneousAppeal is to seek their remedy in the suits pending before thetrial court, within a reasonable time frame. https://hcservices.ecourts.gov.in/hcservices/

25. Mr.T.V.Ramanujam, learned Senior Counsel appearing for theappellants argued that "status quo ante" be restored in theinterest of justice, since the respondents herein filed the suit inO.S.No.121 of 2002 and obtained interim injunction just three daysprior to the proposed date of handing over of the Chairmanship ofthe Trust and the administration of the Polytechnic. 26. The relief sought for by the appellants has to beconsidered as per Order XXXIX Rules 1 and 2 of the CPC. Admittedly,on the date of filing of both the suits, the appellants were not inthe administration of the Polytechnic and the first appellant wasnot the Chairman of the Trust. Normally, in case if there is anyillegal encroachment or taking over of possession of a propertyforceably violating the orders of the court, one can seek statusquo ante or based on the facts and circumstances only in rarestcases, the Court can grant interim mandatory injunction, for whichthe following requirements are to be satisfied under Order XXXIXRules 1 and 2. 1) There should be a strong prima face case, whichshall be more than the requirement for seeking a prohibitoryinjunction. 2) Balance of convenience should be in favour of theperson or persons, seeking the relief and 3) There should beirreparable loss or injury, in case if the relief is not granted.In the instant case, there is no such circumstances available andtherefore, I am of the view that the appellants cannot claim statusquo ante, in the name of interim mandatory injunction. 27. It is not in dispute that two different Benches of thisCourt have negatived the interim relief sought for, separately byboth the parties. Hence, there is no strong prima facie case, apartfrom balance of convenience and irreparable loss or injury infavour of the appellants to grant interim mandatory injunction. Ascontended by the learned Senior Counsel appearing for therespondents, the prayer in the suit and prayer in the InterlocutoryApplication before the trial courts are similar.28. In such circumstances, I am of the view that theappellants are not entitled to interim mandatory injunctionas prayed for in the Interlocutory Application and as such Icould find no illegality or infirmity in the impugned order passedby the court below. Hence, the Civil Miscellaneous Appeal is liableto be dismissed. However, to meet the ends of justice, I am of theview to direct the court below to dispose the Suits independentlyon merits, on or before 31st October 2008. https://hcservices.ecourts.gov.in/hcservices/

29. In the result, the Civil Miscellaneous Appeal is dismissedwith the direction to the court below to dispose the suits inO.S.No.121 of 2002, which was renumbered as O.S.No.15 of 2006 andO.S.No.72 of 2005 on merits on or before 31.10.2008, afterproviding reasonable opportunity to both the parties. However,there is no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.tsvnToThe Principal District Judge Villupuram. 1 cc to Mr.K. Ravichandrababu, Advocate, Sr. 226111 cc to Mr.M. Rajasekhar, Advocate, SR. 23351 C.M.A.No.3518 of 2006TS (CO)kk 22/5