BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/08/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.499 of 2009 MP.Nos.1 and 2/2009 1. K.Suriyamurthi 2. K.Shanmugam 3. K.Rengaraj 4. G.Chellamuthu Petitioners Vs S.Arockiyamery by Power Agent A.Charles Respondent Prayer This Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the fair and decretal order in CMA.No.1/2008 dated 20.1.2009 on the file of the Sub Court, Pudukkottai and allow this civil revision petition. !For Petitioners ... Mr.N.Balakrishnan ^For Respondent ... Mrs.AL.Ganthimathi :ORDER
This Civil Revision Petition is filed by the defendants against the
order passed by the Sub Court, Pudukkottai, dated 20.1.2009 in CMA.No.1/2008,
granting temporary injunction in a suit for permanent injunction, reversing the
order of the learned Principal District Munsif dated 27.4.2007 in IA.No.208/2007
in OS.No.96/2007.
2. The brief facts are as follows:-
The respondent/plaintiff filed the above said suit for permanent
injunction restraining the petitioners/ defendants from interfering with his
right to use the pathway described in the B-Schedule property on the basis that
he had purchased the property described in A-Schedule to the plaint by way of a
registered sale deed dated 4.8.2005 from one Karuppan, the father of the
defendants 1 to 3/petitioners 1 to 3 herein, in which the cart track is recited
as northern boundary and further the said Karuppan had also executed a consent
deed on the same date giving his consent to use the cart track by the
respondent on the eastern end of S.Nos.166 and 167 to reach the A-Schedule
Property comprised in S.Nos.168/3, 168/4 and 169/7A.
3. Pending the suit, the respondent has filed an application in
IA.No.208/2007 for temporary injunction against the petitioners restraining them
from obstructing the suit B-Schedule Cart track to reach the suit A-Schedule
property and the petitioners contested the said application on the ground that
there is no pathway as alleged by the respondent and it does not find a place in
the revenue records at any point of time and pleaded that the consent deed dated
4.8.2005 is a fabricated one. After considering the contentions of both sides,
the learned Principal District Munsif dismissed the said application by order
dated 27.4.2007, as against which, the respondent had filed CMA.No.1/2008 before
the Sub Court, Pudukkotai, who granted an order of interim injunction in favour
of the respondent by order dated 20.1.2009, which is challenged in this civil
revision petition by the defendants.
4. Mr.N.Balakrishnan, the learned counsel for the petitioners would
contend that no pathway or cart track existed prior to the sale deed executed in
favour of the respondent by their father and the entire extent in S.Nos.166 and
167 was in possession and enjoyment of the said Karuppan and his family members
and no pathway existed on ground at any point of time on the eastern side or in
any part of the survey numbers 166 and 167 and further it does not find a place
in the revenue records namely, FMP and “A” Register, etc. As regards the consent
deed relied on by the respondent, the learned counsel would contend that it is
inadmissible in evidence, as it is neither stamped or registered as required by
law.
5. The learned counsel for the petitioners would place reliance on
the decisions of this court rendered in the case of S.Kaladevi Vs.
V.R.Somasundaram and two others [2009-1-TLNJ-540-Civil] in support of his
contention that if the document is inadmissible in evidence for want of
registration, the terms cannot be admitted in evidence. He would further submit
that unless the property is identifiable, no injunction could be granted and in
support of the said contention, he relied on an another decision of this court
rendered in the case of Rathinasamy @ Rathinavelu Vs. P.S.Rajendran [2008-3-
TLNJ-591-Civil].
6. Yet another contention was put forth by the learned counsel for
the petitioners that interim injunction having the effect of granting a final
relief should not be granted and the learned counsel for the petitioners would
rely upon the decisions of the Division Bench of the Principal Bench of this
Court rendered in the cases of Dr.M.Thirunavukkarasu Vs. Indian Psychiatric
Society Tribunal by its Chairman, Prof.Shridhar Sharma and others [2008-2-CTC-
51] and the Bank of Tokyo Mitsubishi Limited, Mumbai Vs. Spartex Ceramic India
Limited, Chennai-28 and others [2007-3-CTC-11].
7. Per contra, Mrs.AL.Ganthimathi, the learned counsel for the
respondent would submit that the supervisory jurisdiction under Article 227 of
the Constitution of India could be exercised for keeping the subordinate courts
within the bounds of their jurisdiction and it is not available for correcting
mere errors of fact or law and available only when (1) error is manifest and
apparent on the face of records and (2) grave injustice or gross failure of
justice has been occasioned thereby. The learned counsel placed reliance on the
decision of the Honourable Supreme Court rendered in the case of Surya Dev Rai
Vs. Ram Chander Rai and others [2003-6-SCC-675] and drew the attention of this
court to the relevant paragraph No.38 of the said decision. The relevant portion
is extracted as under:-
“4. Supervisory jurisdiction under Article 227 of the Constitution is exercised
for keeping the subordinate courts within the bounds of their jurisdiction. When
a subordinate court has assumed a jurisdiction which it does not have or has
failed to exercise a jurisdiction which it does have or the jurisdiction though
available is being exercised by the court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby, the High Court may
step in to exercise its supervisory jurisdiction.
6. A patent error is an error which is self-evident i.e. Which can be perceived
or demonstrated without involving into any lengthy or complicated argument or a
long drawn process of reasoning. Where two inferences are reasonably possible
and the subordinate court has chosen to take one view, the error cannot be
called gross or patent.
8. The High Court in exercise of certiorari or supervisory jurisdiction will not
convert itself into a court of appeal and indulge in reappreciation or
evaluation of evidence or correct errors in drawing inferences or correct errors
of mere formal or technical character.”
By referring to the above said observations of the Honourable Supreme Court, the
learned counsel would contend that if the High Court intervenes in the pending
proceedings, then there is bound to be a delay in termination of proceedings and
the facts and circumstances of this case does not warrant interference by the
court, as no grave injustice or gross failure has been occasioned.
8. In the instant case, on facts the pathway/cart track is recited
in the sale deed, which is acknowledged by the vendor in the consent deed dated
4.8.2005. The vendor has given reasons for permitting the respondent to use the
pathway, stating that for ingress and egress there is no other pathway for the
use of the respondent and that has necessitated him to permit the respondent to
use the pathway as alleged in the consent deed. It is pertinent to point out
that the respondent has relied on the consent deed only for collateral purpose
to show that the vendor permitted him to use the cart track for all purposes.
Whether a document is admissible in evidence or not depends upon the nature and
contents of the document and also facts and circumstances of each case and the
Honourable Supreme Court in the case of Bondar Singh and others Vs. Nihal Singh
and others [2003-4-SCC-161] has observed that if under law a document is
required to be properly stamped and registered, even though not admissible in
evidence can be looked into for collateral purposes. In the present case, the
collateral purpose to be seen is whether the usage of pathway/carat track is
acknowledged by the vendor to the respondent. Hence, the contention of the
learned counsel for the petitioners that it cannot be admitted in evidence for
non registration does not merit acceptance.
9. In the case of Sadhana Lodh Vs. National Insurance Company ltd
and another [2003-2-CTC-122], the Honourable Supreme Court, while dealing with
the scope and ambit of supervisory jurisdiction conferred on the High Court
under Article 227 of the Constitution of India, has held that in exercising
supervisory power, the High Court cannot act as an appellate court and it is not
permissible for the High Court to review or reweigh the evidence, upon which
inferior courts pass an order or to correct errors of law, while exercising
jurisdiction under Article 227 of Constitution of India.
10. The first appellate court, after hearing both sides and
analysing elaborately the materials and documents placed on record, granted an
order of interim injunction after considering the balance of convenience and
hardship caused to the respondent. In such a case, bearing in mind the
principles enunciated by the Honourable Supreme Court in the decisions cited
supra, this court, while exercising the revisionary power under Article 227 of
the Constitution of India, will not interfere with the findings based on facts.
In this case, no serious question of law is involved and the first appellate
court, by factual analysis, has granted the order of interim injunction. Hence,
I am of the considered opinion that the impugned order does not suffer from any
illegality or infirmity and no interference with the findings of the first
appellate court is warranted.
11. In the result, this Civil Revision Petition is dismissed. No
costs. Consequently, the connected MPs are closed.
Srcm
To:
The Sub Court, Pudukkottai
