SAMSETH BEGAM Vs. MARGARET CELINE

JUDGEMENT

(1.) NOTICE of motion was ordered in this matter and today the counsel have argued the appeal. The appellant is the defendant. The suit was filed by the respondent for injunction in respect of Schedule A and B of the plaint. There is no controversy regarding A Schedule property and therefore, this appeal restricts itself to Schedule-B.

(2.) THE appellants did not file their written statement and were set ex parte. Two witnesses were examined and four documents were marked. THE Trial Court after a detailed consideration of the oral and documentary evidence, came to the conclusion that the respondent had not proved her case. Ex-A2 is an application by the husband of the respondent to the tahsildar, Pudukottai for certified copy of the'a'Adangal and the'b' yadasthu. It was returned by the Tahsildar on the ground that since the suit property is a Government Poramboke, no such copy can be furnished. Ex-A4 is the certificate which bears the signature as well as the official seal of the village Administrative Officer, the Revenue Inspector and the Deputy Tahsildar who had returned Ex-A2, certifying that the respondent has built a house in an extent of 0. 07 cents in the suit, land. THE Trial Court was inclined to disbelieve the genuineness of Ex-A2. THE Trial Court had given several reasons. One of then is no such certificate as Ex-A2 is normally given by Revenue officials. In cases of encroachment into Government land, B-memos are normally issued. Under Ex-A2, the officers refuse to give any copies of the'a'Adangal and the'b'Yadasthu, and further no B-memos were produced nor copies of revenue record to show the levying of B-memo. In fact the Trial Court uses very strong words to indicate the suspicion clouding Ex-A4. An advocate Commissioner was appointed and according to the Trial Court the report while recording the physical appearance of the suit property does not even contain the physical measurements of the suit property. Ex-A3 was also marked which is a receipt towards payment of electricity charge to show the respondent's possession. This was rejected by the Trial Court on the ground that this relates to'a'Schedule property where there is a house and not'b' schedule property, which is a vacant site. Finally, the Trial Court relying on vijayan v. Banusundari, ILR 1995 (1) Mad. 467 held that merely because the defendant has remained ex parte the plaintiff is not automatically entitled to a decree. THE learned Trial Judge further observed that injunction being an equitable remedy, only those who come to Court with clean hands and convincing evidence will be entitled to the same.

(3.) FINALLY, the Appellate Court also seems to have taken a negative attitude to the appellant for not filing the written statement. This approach has been frowned upon by the Supreme Court in Balraj Taneja v. Sunil madan, AIR 1999 SC 3380 relied on by the learned counsel for the appellant. "a perusal of the above judgment will indicate that the suit had been decreed only because of the failure of the defendants in filing the written statement. This exhibits the annoyance of the court which is natural as no Court would allow the proceedings to be delayed or procrastinated. But this should not disturb the Judicial composure which unfortunately is apparent in the instant case as the judgment neither sets out the facts of the case nor does it record the process of reasoning by which the court felt that the case of the plaintiff was true and stood proved. But in the instant case, as we have already seen above, it is not merely a matter of the defendants'conduct in not filing the written statement but the question of law as to what the Court should do in a case where written statement is not filed is involved and this question has to be decided so as to provide for all the lower Courts as to how the Court should proceed in a situation of this nature. " The Trial Court had exercised its discretion in one way. If the Appellate Court wants to hold that such exercise is not supported either by oral or documentary evidence then it should give its reasons why the decision of the Trial Court is interfered with. Merely stating that all the exhibits are accepted and therefore, possession is found in favour of the respondent will not be a proper exercise of the power of the final Court of fact.