S KARPAGAM Vs. R SHANMUGAM

JUDGEMENT

(1.) AGGRIEVED by the order of the learned VII Assistant Judge, City Civil Court, Madras in I.A.No.20477 of 1993 in O.S.No.9587 of 1998 dismissing her injunction application, the appellant has filed the above appeal. The very same person against the order of dismissal of her petition for appointment of Receiver by the very same learned Judge in I.A.No.20478 of 1993 and affirmed by the VII Additional Judge, City Civil Court, Madras in C.M.A.No.34 of 1998, has filed the above revision.

(2.) THE respondent in both the cases is the brother of the appellant/petitioner. THE appellant herein filed suit O.S.9587 of 1993 on the file of VII Assistant Judge, City Civil Court, Madras to pass a decree and judgment declaring that she is entitled to share the profits of the suit property equally along with the defendant since 27.9.1991, when her father disappeared and was reported to be missing till the division of the suit property by metes and bounds when the time therefor ripes, directing the defendant to account for the profits derived from the suit property from 1.10.1991 and also directing the defendant to pay the plaintiff's half share of the profits of the suit property on its ascertainment by this Court. Pending the suit the appellant herein filed I.A.No.20477 of 1993 under O.39, Rules 1 and 2 C.P.C., for an interim injunction restraining the respondent/defendant from collecting the rents from the various tenants occupying the different portions of the suit property. She also filed I.A.No.20478 of 1993 under O.40, Rule 1, C.P.C., for appointment of a receiver to collect the monthly rents payable by the various tenants occupying the different portions of the suit property. THE court below, by a separate, order dismissed both the applications. Against the dismissal of I.A.No.20477 of 1993 dated 9.2.1994, she preferred the above appeal (C.M.A.No.492 of 1994), before this Court and against the dismissal of I.A.No.20478 of 1993, she preferred C.M.A.No.34 of 1998 before the 7th Additional Judge, City Civil Court, Madras. THE order passed in I.A.No.20478 of 1993 has been confirmed by the appellant Judge in C.M.A.No.34 of 1998, hence she preferred C.R.P.No.452 of 1999 before this Court.

(3.) AS rightly observed by the court below, both the appellant and respondent admit that their father is alive. Unless it is established that his whereabouts are known for 7 years and he is presumed to be dead, the appellant cannot ask for her share in the suit property. In such a circumstance, the conclusion of the court below that the suit as framed is premature cannot be assailed. Further, the court below is also right in holding that the appellant herein placed required materials to grant injunction. On the other hand, while dismissing the injunction application, the court below has directed the respondent/defendant to issue receipts for rental payments and preserve the counter-foils. It has also directed him to maintain records regarding the rental income. In the light of the safeguards made by the court below and in the absence of any prima facie case, I do not find any valid reason to interfere with the impugned order dismissing her injunction application, accordingly the appeal is liable to be dismissed.