S SARAVANAMUTHU Vs. V MOORTHY

JUDGEMENT

(1.) THE plaintiff in the original suit O.S. No. 5851 of 2004 on the file of the learned XI Assitant Judge, City Civil Court, Chennai is the appellant in the second appeal. THE suit was filed by the appellant herein/plaintiff against the respondents herein for a permanent injunction restraining them from interfering with the administration and management of the technical institution of the said Trust, namely Thirutani Arulmiku Murugen Educational Trust. Though the suit was filed against totally five persons, the suit, as against the fifth respondent (Kamalakar), had been dismissed for non-prosecution and the suit, as against the other respondents, namely respondents 1 to 4 alone was proceeded with. Out of the above said four persons, namely respondents 1 to 4, except the first respondent/first defendant, the other three respondents, did not contest the suit and remained ex parte before the trial Court. THE first respondent/first defendant alone filed a written statement and contested the suit. THE said suit was decreed as prayed for by the learned XI Assistant Judge, City Civil Court, Chennai by judgment and decree dated 12.1.2007, without cost.

(2.) AS against the said judgment and decree of the trial Court, the first respondent herein/first defendant preferred an appeal on the file of the lower appellate Court, namely the Court of the learned V Additional Judge, City Civil Court, Chennai in A.S. No. 324 of 2007. In the said appeal, a petition under Order 41 Rule 27 of Civil Procedure Code was filed as C.M.P. No. 199 of 2009 for reception of additional documentary evidence. The learned lower appellate judge allowed the said petition and marked the document produced by the first respondent herein/first defendant as Exhibit B-1 and disposed of the said petition. So far as the appeal is concerned, the learned lower appellate judge, on a re-appreciation of evidence, allowed the appeal by his judgment and decree dated 29.9.2009, reversed and set aside the decree passed by the trial Court and dismissed the suit O.S. No. 5851 of 2004 filed by the appellant herein/plaintiff, with a direction that the respective parties should bear their own cost. The said judgment and decree of the learned lower appellate judge dated 29.9.2009 is impugned in this second appeal.

(3.) THE contesting defendant, namely the first respondent herein/first defendant filed a written statement contending that, though such a Memorandum of Understanding dated 27.10.1999 was signed by the parties as pleaded in the plaint, the same was not acted upon and the MOU did not come into force, as the conditions found in the same, were not complied with by the appellant/plaintiff. It was contended further therein that the first respondent/first defendant is the founder trustee of the trust even on the date of filing of the suit and that hence the suit for injunction against him was not maintainable. It was also submitted by the first respondent/first defendant that he had filed another suit in this regard as O.S. No. 40 of 2005 on the file of the XVI Assistant Judge, City Civil Court, Chennai and that the plaintiff had got no right to carry on with the affairs of the trust, as he was removed form the trust by the other trustees.