S RAMASAMY Vs. V RANGANAYAKI

JUDGEMENT

(1.) DEAD men tell no tales, it is said, but in this case a dead man did. The respondents 1 and 2 filed O.S.No.1973 of 1996 against the third respondent herein and four others for bare injunction in respect of 49 cents of land bounded on the south by Ponnamallee High Road, east and north by Tamarai Kulam and west by their own land. Notice was ordered and the first defendant in the said suit who is the predecessor in interest of the petitioners herein stated that the defendants were in possession of 16 cents out of 49 cents and that as early as 1977, the Revenue Department had issued a notice to them under Section 7 of the Act 3 of 1905. The same 16 cents of the land is the subject matter of a second suit out of which this revision arises. According to the third respondent survey No. 149 which is adjacent to survey No. 150 belongs to him and the said 16 cents is the only way from the main road to the property in Survey No. 149. It was stated in the counter that if injunction was granted for the entire 49 cents the only access to Survey No. 149 would be by helicopter. This suit is pending.

(2.) SUBSEQUENTLY, the respondents 1 and 2 filed O.S.No.6673 of 1998 against the petitioner and respondents 3 to 6 for the same relief. The cause of action for the suit being the attempt to trespass made by the third respondent herein in the month of July, 1998. It is also the case of the respondents 1 and 2 that since they are residing far away from the suit property and since the petitioner and the other respondents are residing near the suit property they would grab the land. Ex parte interim injunction was asked in I.A.No. 15598 of 1998 and the same was granted. Thereafter, according to the petitioner herein though he was in possession of the property the respondents 1 and 2 committed trespass and demolished the compound wall which was constructed around survey No. 149 and the extent of 16 cents in survey No. 150. So, the petitioner filed an application for appointment of Advocate Commissioner. An Advocate Commissioner was appointed and he filed his report. The interim order was being extended from time to time without recording reasons, though the petitioner had filed his counter and opposed the grant of injunction. So the petitioner was constrained to file C.R.P.No.3530 of 1998 under Article 227 of the Constitution of India. This court came to the conclusion that the ad-interim injunction was extended without following the provisions of Order 39, Rule 3(a), C.P.C. The learned Judge also commented about the conduct of the respondents 1 and 2 in approaching the Court by filing the suit for bare injunction without disclosing that there was an earlier suit and it was pending. Pursuant to the directions of this court in the above civil revision petition, the Trial Court took up the interlocutory application and after hearing both parties came to the conclusion that the respondents 1 and 2 were not entitled to the order of injunction having suppressed the pendency of the earlier suit and also held in favour of the petitioner on the ground of prima facie case and balance of convenience.

(3.) THE main thrust of the petitioner's case is the right of the respondents to knock at the door of equity in view of their conduct. THEy had filed a suit for bare injunction in the suit property in 1996. THEy did not succeed in getting interim injunction. In 1998, they filed a suit again for the same relief and the cause of action is this: