C. Sambasivam vs C. Ramakrishnan and Others

M.M. Sundresh, J.—These two Original Side Appeals have been preferred by the appellant, being aggrieved against the orders passed by

the learned single Judge in Application No. 1018 of 2012 in C.S. No. 753 of 2012 and Application No. 1027 of 2012 in C.S. No. 789 of 2012

respectively. The appellant herein, who is the respondent in Application No. 1018 of 2012 in C.S. No. 753 of 2012, challenging the order of

injunction granted against him, has preferred an appeal in O.S.A. No. 462 of 2012. Challenging the order of the learned single Judge in not

granting injunction in favour of the appellant, who is the applicant in Application No. 1027 of 2012 in C.S. No. 789 of 2012, has filed an appeal in

O.S.A. No. 100 of 2013.

The appellant is the one among the three brothers, who owned entire suit property. A portion of the land in the suit property owned by the

appellant and his brothers were sold in pursuant to the development agreement with the third parties. Number of flats have been constructed in the

portion of the suit property. After the said construction, the appellant and his brothers partitioned the remaining properties. Now the question for

consideration in the suit is as to whether the passage, which is the subject matter of the suit, is to be exclusively used by the appellant and his

brothers as against their tenants and other flat owners.

The suit in C.S. No. 753 of 2012 has been filed by one of the brothers of the appellant and one of the owners of the flat. It is the case of the

brother of the appellant, who is the first plaintiff in C.S. No. 573 of 2012, that he has inducted number of tenants in the property owned by him

and therefore, he being the co-owner and they being his tenants, the appellant cannot interfere with the usage of the common path way. The case

of the second plaintiff therein is that as per the Group Development Project and as per the Development Control Rules, he is entitled to use the

path way. The case of the appellant in both the appeals is that the sale deed executed between the parties as well as the Partition Deed would

show that the path way is to be exclusively used and owned by the brothers alone and no one else.

The learned single Judge, after considering the materials available on record, has granted an order of injunction pending suit in favour of the

applicants in Application No. 1018 of 2012 in C.S. No. 753 of 2012, thereby, consequently rejected the injunction sought for by appellant in

Application No. 1027 of 2012 in C.S. No. 789 of 2012. Challenging the said orders passed in Applications viz., Application No. 1018 of 2012 in

C.S. No. 753 of 2012 and Application No. 1027 of 2012 in C.S. No. 789 of 2012 respectively, the present Original Side Appeals have been

filed.

The facts involved in the case are not in dispute. The applicant in one of the Applications viz., Application No. 1018 of 2012 in C.S. No. 753 of

2012, is admittedly a brother of the appellant. Being the co-owner, he is entitled to use the said pathway, which is not in dispute. Therefore, when

he is entitled to use the pathway, the appellant cannot have any grievance to use the said pathway by his tenants. A technical interpretation

regarding the enjoyment cannot be given. When a right has been given by the owner over a property exclusively owned by him, the consequential

right to use the common right enjoyed by the said person as a co-owner would also accrue to his tenants. Therefore, we do not find any error in

the order of the learned single Judge.

Now coming to the other question as to whether the second applicant in Application No. 1018 of 2012 in C.S. No. 753 of 2012 is en-titled to

use the pathway or not, prima facie, we find that he is entitled to use the said pathway. While considering the principles governing under Order

XXXIX Rules 1 and 2 of the Civil Procedure Code, this Court will have to see the settled principles having regard to the prima facie case, balance

of convenience and irreparable loss. Even if a prima facie case is made out, an order of injunction shall not follow automatically without considering

the aspect as to whether irreparable loss would be caused to the party in the event of non granting of injunction. In the case on hand, it is not as if

the appellant would be substantially prejudiced as he is not prevented from using the passage. What he seeks by way of interim injunction is

preventing others from using it. Therefore, the question as to whether the appellant would succeed or not will have to be decided in the suit.

Further more, it is also a settled principles of law that when an order of injunction is granted by the learned single Judge on appreciation of facts,

this Court cannot substitute its view by reversing the same. Therefore, we are of the view that the respondents, who are the applicants in

Application No. 1018 of 2012 in C.S. No. 753 of 2012 have made out a prima facie case. It is further to be seen that except the appellant herein,

the other brother does not have any serious objection. Of all the three brothers, only the appellant has filed these appeals and another brother has

filed a suit against the appellant, supporting the case of the second applicant in Application No. 1018 of 2012 in C.S. No. 753 of 2012. The

question regarding the relevancy of the sale deed and the partition deed will have to be seen only at the time of hearing the suit. The further

question as to whether the clause contained in the documents relied upon by the appellant or the provisions of Development Control Rules will

have primacy, also will have to be decided in the suit. Hence, looking from any angle, we do not find any reason to interfere with the order of the

learned single Judge. Accordingly, these Original Side Appeals fail and the same are dismissed. However, we make it clear that this order will not

stand in the way of the parties from taking appropriate steps to restrain any third party from entering into the suit property without any

authorization. We further make it clear that this order is made only for the purpose of deciding the interlocutory application and it will not have any

bearing in the suit, which is yet to be decided on merits and on pleadings adduced by both the parties. Considering the limited scope of prayer, we

request the learned single Judge dealing with the final hearing of the civil suit to expedite the same. No costs. Consequently, connected

miscellaneous petitions are also dismissed.