K. Arumugam vs Elumalai and Others

G. Rajasuria, J.—This second appeal is focussed by the original Plaintiff, animadverting upon the judgment and decree passed in A.S. No.

97 of 2009 on 07.04.2010 by the learned Additional District Judge, Fast Track Court No. V, Chennai confirming the judgment and decree of the

learned VII Asst. Judge, City Civil Court, Chennai in O.S. No. 1511 of 2007.

The germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

(a) The Plaintiff who is the Appellant herein, filed the suit seeking the following reliefs:

(i) For permanent injunction restraining the Defendants, their men, agents or any other persons acting on behalf of the Defendants from in any

manner alienating or encumbering the property morefully described in the schedule hereunder which is covered under Agreement of Sale dated

02.12.2003 and subsequently renewed on 26.06.2004; and

(ii) for costs. (Extracted as such)

(b) The Defendants filed the written statement resisting the suit.

(c) Whereupon the trial Court framed the issues.

(d) During trial, the Plaintiff-Arumugam examined himself as P.W.1 and Exs.A1 to A4 were marked. The first Defendant-Ezhumulai examined

himself as D.W.1 and Exs.B1 to B4 were marked.

(e) Ultimately the trial Court dismissed the suit as against which appeal was filed, for nothing but to be dismissed by the appellate Court confirming

the judgment and decree of the trial Court.

Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been filed by the Plaintiff

on various grounds and also suggesting the following substantial questions of law:

(a) Whether the courts below are right in holding that the suit is barred by limitation for not examining the attesting witnesses?

(b) Whether the courts below are right in holding that the Plaintiff has no right to claim suit for injunction since he has not claimed larger relief of

specific performance?

(c) Whether the courts below are right in holding that the Appellant/Plaintiff has lost his claim because of non examining the witness who informed

him of the proposed sale of the suit schedule by the Defendant?.

(extracted as such)

At the hearing, the learned Counsel for the Appellant placing reliance on the grounds of appeal, would develop his argument to the effect that

both the Courts below committed error in disposing of the matter in a mechanical and parrot fashion by citing the reason that the Plaintiff who is

claiming to be the agreement holder failed to file a suit for specific performance, but instead filed a simple suit for injunction so as to restrain the

Respondents from alienating the suit property.

At the outset, I would like to fumigate my mind with the decision of the Hon''ble Apex Court reported in Vijay Kumar Talwar Vs.

Commissioner of Income Tax, Delhi, , certain excerpts from it would run thus:

It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial

question of law is involved, and where the High Court comes to the conclusion that asubstantial question of law arises from the said order, it is

mandatory that such question(s) must be formulated. The expression ""substantial question of law"" is not defined in the act. Nevertheless, it has

acquired a definite connotation through various judicial pronouncements.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving

at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or

legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

A mere poring over and perusal of the above excerpt including the whole judgment, would reveal that unless there is any perversity or illegality in

the findings of the Courts below or that the Courts below failed to apply the correct law, the question of interference in the Second Appeal does

not arise.

A plain reading of the judgments and decrees of both the Courts below as well as the available records, would exemplify and demonstrate that it

appears the agreement to sell-Ex.A1 emerged between the Plaintiff and the Defendants, whereby the Defendants agreed to sell the immovable

property referred to therein in favourof the Plaintiff stipulating the sale consideration as Rs. 10,50,000/- (Rupees tenlakhs and fifty thousand only)

and the Plaintiff paid a sum of Rs. 5 lakhs (Rupees five lakhs only) to the Defendants. The period of performance was six months. Both the Courts

below gave a categorical finding to the effect that the said six months'' period was allowed to get lapsed by the Plaintiff; on the other hand, he got

back from the Defendants the said advance amount of Rs. 5 lakhs. These are all finding of facts, relating to which there is nothing to indicate that

there is any perversity or illegality involved in it.

I am at a loss to understand as to how the Plaintiff had any locus standi to get injunction as against the Defendants so as to restrain them from

selling the suit property. As such, both the Courts below au fait with law and au courant with facts appropriately dismissed the suit warranting no

interference in the Second Appeal. There is no question of law much less any substantial question of law is involved in this matter. Accordingly, this

Second Appeal is dismissed. However, there shall be no order as to costs.