M.P.No.2 Of 2 vs Nataraja Mudaliar And Others …

Madras High Court
M.P.No.2 Of 2 vs Nataraja Mudaliar And Others …
       

  

  

 
 
 M.P.No.2 of 2011
in 
A.S.No.261 of 2007


T.MATHIVANAN,J

	This petition is filed under Order 39 Rule 1 and 2 of Civil Procedure Code to grant the relief of ad interim injunction restraining the respondents 2 to 4 herein from renewing the FL 2 license in the name of the first respondent herein in respect of SPS Brandy shop, in Melavanjur Village, Karaikal which is the subject matter of the suit in O.S.No.28 of 2003, on the file of the Additional District Court, Pondicherry at Karaikal.

2. The facts which are absolutely necessary for the disposal of this petition are as under;

3. The petitioner is the proposed 10 respondent in the petitions in M.P.Nos.1,2 & 3 of 2010 and to be impleaded as the 10th respondent in the appeal in A.S.No.261 of 2007. One Mrs.Amalorpava Marie who is said to be the grandmother of the petitioner was granted FL 2 license to run a Brandy Shop under the name and style of SPS Brandy Shop. Since then the license had been renewed in her name periodically. The first respondent herein, had entered into a series of transactions with her and obtained series of documents in his name. All these documents are shame and nominal and thereafter, the above said license was transfered into the name of the first respondent herein. Hence, Mrs.Amalorpava Marie had filed a suit in O.S.No.28 of 2003, on the file of the Additional District Court at Pondicherry at Karaikal for the relief of mandatory injunction to delete the name of the first respondent herein and to include her name in the license and that suit was decreed as prayed for.

4. Challenging the judgment and decree, the respondents 2 to 4 herein have filed an appeal in A.S.No.2 of 2008, before this Court and obtained an order of stay. The first respondent has also filed the present appeal in A.S.No.261 of 2007 challenging the decree and judgment and made in O.S.No.28 of 2003. The FL 2 license has been renewed in the name of the first respondent each and every year and as such continuing the operation of the Brandy Shop by the first respondent is illegal. The respondents 2 to 4 herein for the reasons best known to them have also been renewing the license in the name of the first respondent every year in spite of the objections made by the petitioner. Virtually there is no positive direction to renew the license of the first respondent and hence, the act of the respondents 2 to 4 are illegal. The petitioner had submitted his objections for the renewal of the license in the name of the first respondent for the year 2010-2011, but it was rejected quoting the pendency of this appeal. He had also filed a statutory appeal before the 4th respondent and the same is pending. The respondents 1 to 4 are colluding together and taking hectic steps to renew the license in the name of the first respondent for the year 2011-2012. Under this circumstance the petitioner is constrained to file this petition for the relief of ad-interim injunction as aforestated.

5. Heard both sides.

6. The suit in O.S.No.28 of 2003 was filed by one Mrs.Amalorpava Marie as against the respondents 1 to 4 herein for the following reliefs;

1. Cancelling and deleting the endorsement dated 07.05.2001 in FL 2 License of SPS Brandy Shop including the name of the 4th defendant N.Subramanian(first respondent herein) and endorsement No.4590/97-99/C2 dated 17.08.2001 deleting the name of the plaintiff Mrs.Amalorpava Marie for the FL 2 License.

2. Granting a direction by way of mandatory injunction against the defendants 1 to 3 (R2 to R4 herein) to issue and renew the license of SPS Brandy Shop in the name of Mrs.Amalorpava Marie lone.

3. For the cost of the suit.

After contest, the suit was decreed as detailed below;

1. That the endorsement made by the 3rd defendant on 07.05.2001 in FL 2 License of SPS Brandy Shop and included the name of the 4th defendant N.Subramanian (first respondent herein) is hereby cancelled and the name of the plaintiff is allowed to be remained in the license.

2. That the defendant 1 to 3 are hereby directed to issue license to the plaintiff for the unexpired period under the original license, Ex.B4.

3. The defendant to pay to the plaintiff a sum of Rs.1,626.50 towards the cost of the suit.

7. Challenging the judgment and decree dated 30.01.2006, and made in O.S.No.28 of 2003, the 4th defendant in the suit has preferred the present appeal in A.S.No.261 of 2007. The defendants 1 to 3 have also preferred another appeal in A.S.No.2 of 2008 challenging the above decree and judgment. During the pendency of the appeal, the first respondent who is the plaintiff in this suit had passed away. Since the appeal is abated the appellant, who is the first respondent herein has filed three petitions in M.P.Nos.1,2,3 of 2010 for condoning the delay in filing the petition for setting aside the abatement of the appeal, to set aside the order of abatement and to bring the legal representatives of the deceased first respondent. The petitioner herein is the proposed 10th respondent and these are all admitted facts.

8. To seek the relief of ad interim injunction under Order 39, Rule 1 and 2 of the Code of Civil Procedure, the locus standi of the petitioner has been questioned. In this connection Mr.Srinath Sridevan, the learned counsel appearing for the petitioner has submitted that though other respondents ranging from R5 to R9 and R11 to R15 are proposed to be impleaded in the appeal, the petitioner being the proposed 10th respondent alone is the only legal representative of Late Mrs.Amalorpava Marie as per her registered will dated 29.10.2007. Therefore, the petitioner is having every legal right to maintain the petition under Order 39 Rule 1 and 2 of CPC, seeking the relief of ad interim injunction as against the respondents 1 to 4. The learned counsel has also submitted that the first respondent has filed three petitions in M.P.Nos.1,2,3 of 2010 in which the respondents 5 to 15 were sought to be impleaded and hence as per the direction of this Court, the petitioner was allowed to let in evidence and accordingly, the learned Master had recorded the evidence of the petitioner as well as the attesting witnesses to establish the fact that the will dated 29.10.2007 executed by the grandmother of the petitioner Mrs.Amalorpava Marie, is genuine and registered one. He has submitted further that even assuming without admitting the facts that the will is not even executed in favour of the petitioner still he is having locus standi to file this petition by virtue of the respondents own action of arraying the petitioner as a sole respondent. He would further submit that since the respondents 1 to 4 are colluding together and taking hectic steps to renew the license in the name of the first respondent for the year 2011-2012, it has become necessary for the petitioner to come forward with this petition seeking ad interim injunction restraining the respondents 2 to 4 herein from renewing the FL 2 license in the name of the first respondent in respect of SPS Brandy Shop.

9. With regard to the locus standi of the petitioner to maintain this petition the learned counsel for the petitioner has placed reliance upon the decision in Chidambaram vs. Nataraja Mudaliar and others reported in AIR 1939 Madras 80. In this case it is held that;

“On the presentation of the petition to sue as a pauper, the suit is to be deemed to have been instituted and therefore there must be parties, the parties being those persons cited in the copy of the plaint filed with the petition. Hence, where an application for appointment of Commissioner is made after the filing of a petition for leave to sue in forma pauperis and before leave has been granted as prayed for in that petition, the applicant is entitled to the relief of appointment of Commissioner.”

10. In this connection, Mr.Srinath Sridevan, the learned counsel for the petitioner would submit that the petitioner has been proposed to be impleaded as the 10th respondent in the appeal, and in view of the registered will dated 29.10.2007, executed by the deceased first respondent Mrs.Amalorpava Marie, this petitioner is having legal right to maintain this petition under Order 39 Rule 1 and 2 CPC against the respondents 1 and 4 as he being the sole legal representative of his grandmother Mrs.Amalorpava Marie. The learned counsel has also submitted that the FL 2 License which has already been renewed in the name of the first respondent herein expires on 31.03.2011 and the respondents 2 to 4 are making arrangements to renew the license in favour of the first respondent for the year 2011-2012 and apprehending imminent injury to his legal right the petitioner has come forward with this petition to restrain them from renewing their FL 2 license in the name of the first respondent. Unless an order of ad interim injunction against the respondents 2 to 4 is granted, the petitioner would be put into irreparable loss.

11. The first respondent alone has filed counter affidavit. The other respondents which includes the respondents 2 to 4 have not filed their counter.

12. Mr. S.Duraisamy learned senior counsel appearing for the respondents has submitted that admittedly the FL 2 License has been renewed in the name of the first respondent for each and every year and this fact has not been denied by the petitioner. The learned senior counsel has also contended that the petitioner herein has no locus standi to file this petition for the relief of ad-interim injunction as he is only a proposed respondent in the above appeal as he had claimed that he is the beneficiary in the alleged will dated 29.10.2007, said to have been executed by the deceased Mrs.Amalorpava Marie. The learned senior counsel has also submitted that an application to bring the legal representatives of the deceased contesting respondent Mrs.Amalorpava Marie, is pending enquiry and that on the direction of this Court, an enquiry was taken up by the Learned Additional Master and a report had also been submitted by the Learned Master to this Court. He would submit further that there was a rival claim made by one V.Phillip Androos claiming that there was a will dated 17.11.2006 said to have been executed by the deceased Mrs.Amalorpava Marie in his favour and in the will dated 29.10.2007 the earlier will dated 17.11.2006 had been referred to and that the deceased respondent Mrs.Amalorpava Marie had not inclined to enforce the will dated 29.10.2007. In this connection he has raised a question as to, out of the above said two wills dated 17.11.2006 and 29.10.2007, which one would be the valid one.

13. The learned senior counsel has also submitted that unless and until the will dated 29.10.2007 is valid and true, the petitioner has no locus standi to claim over the subject matter. It also appears that after the report is sent by the Learned Additional Master, a petition in M.P.No.1 of 2011 seemed to have been filed by the petitioner to re-open the evidence for cross, and the same is still pending. It is further contended that when the petitioner himself has not been impleaded so far in the appeal as a party, he could not maintain the application that too under Order 39 Rule 1 and 2 C.P.C which is liable to be dismissed. The learned senior counsel has also contended that the prayer for granting an ad interim injunction itself is unknown to Section 37 of Specific Relief Act, 1963. Section 38 of Specific Relief Act deals with perpetual injunction. For the better appreciation of this case, it may be better to extract the proviso to Section 37 of Specific Relief Act, 1963.

37.Temporary and Perpetual injunction.-(1)Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2)A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

14. The learned senior counsel has also maintained that if the relief sought for by the petitioner is granted it would amount to a decree which might be passed in a suit for permanent injunction. The learned senior counsel has also made reference to Order 39 Rule 1 and 2 of CPC which deals with grant of temporary injunction pending disposal of the suit and submitted further that there is no such provision of granting ad interim injunction as prayed for by the respondent. He has also submitted that there is distinction between terms “Ad-Interim Injunction” and “Interim Injunction”.

15. It is further contended that the first respondent is already on record as the appellant in the appeal and hence, there is no question of granting any interim or ad interim injunction and therefore, when the prayer is not for temporary injunction in terms of the provisions contained under Order 39 of Rule 1 and 2 of CPC an ad-interim injunction cannot at all be granted in the circumstance of the case and such application is liable to be dismissed even on this ground as well. He has further adverted to, that the person who seeks equity must come to the Court with clean hands, but the petitioner has come out with unclean hands. While advancing his arguments the learned senior counsel has also made reference to the order of this Court dated 12.06.2007 and made in M.P.No.1 of 2007 in the present appeal (A.S.No.261 of 2007). In this connection he would submit that this Court in the petition in M.P.No.1 of 2007 has passed an appropriate order by recording the issue of the license till 31.03.2008 in favour of the first respondent herein and it would clearly go to show that this Court had approved the grant of license in favour of the first respondent till 30.03.2008. He would submit further that if the correctness of the renewal of the license till 30.03.2008 had been approved by this Court it necessarily follows that the license already granted till 30.03.2008 has to be necessarily be renewed on the payment of necessary license fee in as much as there is no bar or stay prohibiting the licensing authority from renewing the license. He has also submitted that there is no other order prohibiting the renewal of license on and from 01.04.2008. While advancing his arguments he has also projected the humdrum attitude of the petitioner herein and submitted that he did not raise any question when the license was periodically renewed as he claimed to be the beneficiaries under the will dated 29.10.2007 and according to the petitioner it came into effect from 23.04.2008. Even after 23.04.2008, he did not raise any such objection for renewal of the license from 01.04.2009 and also from 01.04.2010 in the name of the first respondent.

16. It is pertinent to note here that the respondents 2 to 4 who is the defendants 1 to 3 in the suit have filed the appeal in A.S.No.2 of 2008 challenging the judgment and decree dated 31.10.2006 and made in O.S.No.28 of 2003 and obtained an order of stay on 11.03.2008 and in this connection he would submit that the decree passed in O.S.No.28 of 2003 was stayed and the license was granted in favour of the first respondent which is subsisting even today and hence the petitioner cannot seek any prohibitory order as against the respondents.

17. For better appreciation of the case of both parties it may be relevant to refer the order passed in writ petition in W.P.No.134 of 2010. The writ petition appears to have been filed by the petitioner under Article 226 of Constitution of India for the issue of writ of mandamus directing the first respondent therein who is the 4th respondent herein, to pass orders on the petition dated 31.10.2009 filed by the petitioner and consequently, forebear the first respondent(4th respondent herein) from collecting or levying the kist in respect of the FL 2 license issued in respect of SPS Brandy Shop at Melavanjur, Karaikkal from the second respondent therein, who is the first respondent herein. While disposing the writ petition on 06.01.2010, this Court has directed the 4th respondent to dispose of the representation of the petitioner dated 03.10.2009. This Court has also directed the 4th respondent not to receive the kist from the first respondent for the period ending March 2010. Impugning the order dated 06.01.2010, and made in W.P.No.134 of 2010, the first respondent had filed a review application in REA No.4 of 2010 and the 4th respondent by an order dated 23.09.2010 had rejected the plea of the petitioner and finally, the 4th respondent had renewed the license in favour of the first respondent till March 2011.

18. It is also revealed from the records that the petitioner had preferred an appeal before the 3rd respondent and the said appeal is still pending. In this regard the learned senior counsel Mr.Duraisamy has submitted that the petitioner having failed in all his attempts, now he has approached this Court without any locus standi and without any justification for the relief of ad interim injunction as against the respondents 1 to 4, which is not legally sustainable and is liable to be rejected.

19. This Court has carefully considered the submissions made on behalf of both sides. This Court has also perused the affidavit filed in support of the petition as well as the counter of the first respondent. It is not disputed by the petitioner that the FL 2 license stands in the name of the first respondent from 17.08.2001. It is also not disputed that the license is being renewed periodically for all these years on payment of kist. It is pertinent to note here that as per the submission made by the learned counsel appearing for the first respondent, the first respondent had remitted the fee of Rs.4 lakhs for the year 2011-12 on 04.02.2011 itself. It is very much relevant to note here that the petitions in M.P.Nos.1,2,3 of 2010 are pending. M.P.Nos.1 and 2 of 2010 are filed by the first respondent for condoning the delay in filing the petition for setting aside the abatement of the appeal as the first respondent therein who is the plaintiff in the suit had passed away and to set aside the order of abatement whereas M.P.No.3 of 2010 has been filed for impleading the legal representatives of the deceased first respondent therein. All these three applications are pending disposal. It is also pertinent to note here that the right of the petitioner is yet to be determined at the time of final disposal of the A.S.No.261 of 2007 preferred by the first respondent herein along with the appeal in A.S.No.2 of 2008 preferred by the respondents 2 to 4 herein. It is also obvious to note here that already the respondents 2 to 4 have obtained an order of stay of the decree in O.S.No.28 of 2003 and it is still in force. Under this circumstance this Court is of view that the petitioner has not made out prima facie case to have the relief of interim injunction.

20. In so far as this petition is concerned, the petitioner has sought for the relief of ad interim injunction against the respondents 1 to 4 herein. As rightly, pointed out by the learned senior counsel Mr.Duraisamy, appearing for the first respondent really there is a distinction between the terms “Ad-Interim Injunction” and “Temporary Injunction”.

21. In this connection it is essential to extract the proviso to Section 94(c) of Code of Civil Procedure. It reads as under;

“Section 94 Supplemental proceedings In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold.”

22. A bare perusal of the provisions of Section 94(c) of the Code where under the Court may grant a temporary injunction only “if it is so prescribed”. The expression “prescribed” in Section 94 would obviously mean as defined in Section 2(16) of the Code “prescribed by Rules”. The Rules which prescribe grant of temporary injunction are Rule 1 and 2 of Order 39 and therefore, a temporary injunction may be granted under Section 94(c) only if a case satisfying the requirements of Rule 1 and 2 of Order 39 is made out. It does not mean that the Court has two sources of power, one under Section 94(c) and another under Order 39 of the Code and may resort to one or the other as and when necessary, but that under the Code the Court grants temporary injunction only under one set of provisions, namely Section 94(c) read with Order 39, Rule 1 and 2 of the Code. This principle is laid down in Manohar Lal vs. Seth Hiralal reported in AIR 1962 SC 527.

23. A temporary injunction may as it very often does consist of two stages;

Stage (i) it is granted without finally disposing of the application for injunction to operate immediately till the disposal of the said application. This is generally classed as “Ad-Interim Injunction”.

Stage (ii) it is granted while finally disposing of the main application to ensure generally till the disposal of the suit. This is generally classed as “Temporary Injunction”.

24. Neither on principle nor on authority there is any bar to the Courts granting ad interim injunction till the disposal of the application for the temporary injunction, if subsequent developments or altered circumstances warrant such grant even though it has refused to grant the same earlier on the materials then on record. If however, the materials on record stand as they stood when the ad interim injunction was refused earlier, a grant of ad interim injunction on such materials may not be permissible as that might amount to impermissible review of the earlier order. This dictum is laid down in Jagjit Singh Khanna vs. Dr. Rakhal Das Mullic and another reported in AIR 1988 Cal 95.

25. The grant of injunction as contained under Order 39 Rule 1 CPC has been interpreted in AIR 2002 SC 2598 where the Apex Court has held that while exercising discretion of the Court in the grant of interim injunction the following test has to be applied;

“It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the Court. While exercise of discretion the Court normally applies the following tests;

i) Whether the plaintiff has a prima facie case

ii) Whether the balance of convenience is in favour of the plaintiff

iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.

26. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which could not be adequately compensated. The Court must weigh one need ….” against another and determine whether the balance of convenience lies.

27. On coming to the instant case on hand on application of normal test as guided by the Apex Court in the above cited decision, the petitioner has not made out a prima facie case. The balance of convenience is in favour of the first respondent herein since the legal right of the petitioner is yet to be asserted. As the petitions in M.P.Nos.1,2,3 of 2010 are pending disposal it cannot be heard to say that the petitioner would suffer an irreparable injury if the prayer of interlocutory injunction is disallowed.

28. Keeping in view of the above discussions and on considering the related facts and circumstance, this Court is of the considered view that the petitioner is not entitled to have the relief as prayed for by him in the petition. With this observation the petition is dismissed. No order as to costs.

31.03.2011

Prm/krk

Note:

Issue Order copy on 01.04.2011

T.MATHIVANAN,J
prm/krk

M.P.No.2 of 2011
in
A.S.No.261 of 2007

31.03.2011

Note: Issue Order copy on
01.04.2001

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