SRIRANGAM MUNICIPALITY Vs. R V PALANISWAMI PILLAI

JUDGEMENT

(1.) This is an appeal against the order made by our learned brother, Satyanarayana Rao on 25-5-1948 as one of the vacation Judges during the summer recess of that year in the following circumstances.

(2.) The Srirangam Municipality which is the applt. before us, issued a notice to the resp. purporting to be under Section 182, Madras District Municipalities Act directing him to deliver possession of an extent of 30 cents of land in T. S. No. 1513 on the northern & eastern side of T. S. No. 1509 & to remove the fence he had put up thereon on the ground that the resp. had encroached on land belonging to the Municipality. This notice was served on the resp. on 25-21948. He thereupon filed a suit O. S. No. 250 of 1948 in the Ct. of the Dist. Munsif of Trichinopoly against the Municipality represented by its Comr. for a declaration of his title to & for the maintenance of his possession of the land in dispute. Along with the plaint he filed an appln. for an interim injunction restraining the Comr. of the Municipalities from interfering, with his possession pending disposal of the suit. Notice of the appln. for interim Injunction was ordered by the learned Dist. Munsif & it was served on the Comr. on 24-41948. The petn. itself was posted for hearing on 12-6-1948 evidently because the Ct. of the Dist. Munsif was closed meanwhile for the summer recess. After receipt of this notice from the Ct. the Comr. had the fence & the trees on the disputed land cut out & removed on 27-4-1948. As the Dist. Munsif's Ct. was closed, the resp. filed two applns. to this Ct. In C. M. P. N 3114 of 1948 ne prayed that this Ct. may be pleased to transfer the suit to this Ct. & to retransfer the same after granting him the necessary relief. In C. M. P. No. 3115 of 1948, he prayed for an order directing the Comr. of the Municipality to put back the fence in its original state & to restore the 'status quo ante' pending disposal of the suit. Both the applns. were disposed of finally by Satyanarayana Rao J. on 25-5-1948. He ordered a transfer of the suit to the file of this Ct. & after hearing both sides, granted a mandatory injunction directing the Comr. of the Municipality to restore the fence to a length of 355 feet within a period of ten days from the date of his order failing which the resp. herein was given liberty to move the Ct. to have the order carried out & to recover the cost of such execution from the deft. Municipality. As the petn. for injunction had been disposed of & as it was unnecessary to keep the suit pending in this Ct., the learned Judge retransferred it to the Dist. Munsif's Ct. for disposal. The appeal before us is against the order granting the mandatory injunction.

(3.) Mr. V.V. Srinivasa Aiyangar, learned counsel for the applt. before dealing with the merits, raised certain objections to the maintainability of the petns. before Satyanarayana Rao J. & certain procedural defects in the applns. We may mention at the outset that none of these objections was raised before the learned Judge himself. Some of the objections particularly those which were procedural, could have easily been met, if they had any substance, by appropriate amendments by the resp. We do not think it is open to the applt. to raise these objections for the first time in the appeal. However as the objections relate to matters of some general importance, especially to the practice now obtaining during the vacation of this Ct., we shall briefly deal with the several points raised by him.