Mrs. S. Kousalya Bai vs The Commissioner, Corporation of Madras, Ripon Buildings, Madras-600003 and another

Abdul Hadi, J.—Having failed in both the Courts below, the plaintiff has preferred this second appeal. Her suit O.S. No. 3208 of 1988 on

the file of the IV Assistant City Civil Court, Madras/ is for a permanent injunction to restrain the defendants 1 and 2 (The Commissioner of

Corporation of Madras and Member Secretary, Madras Metropolitan Development Corporation) from exercising any coercive act with reference

to the construction made by her in Plot No. 4902 AB-Plot, Anna Nagar, either in the garb of exercise of statutory rights or otherwise in attempting

to demolish the same or conducting any other detrimental act in respect of it. Though the Courts below have given different reasons for dismissing

the suit, I do not find, despite the arguments of the learned Counsel for the appellant, that the case involves any substantial question of law. The

cause of action for the suit is said to be Ex. A.4 publication in the newspaper regarding the unauthorised construction in respect of the abovesaid

building. According to Ex. A.4, the ground and second floors of the said construction are authorised constructions. No doubt in the said

advertisement the name of the owner of the abovesaid building is mentioned as Shanmugam and not the plaintiff. But the said Shanmugam is none

other than the husband of the appellant. That apart, it is not denied that the said building is that of the plaintiff-appellant on the other hand, only

because the building belongs to the appellant the suit was laid by the appellant.

Now in the entire plaint, nowhere it is averred that the said ground floor and second floor constructions are only authorised constructions. In

other words, nowhere in the plaint it is averred that there was no unauthorised construction at all in the abovesaid building. While that is so, it is

only to be concluded that the appellant has come to court not with clean hands. Even on that very ground, the suit for the abovesaid bare injunction

has to be dismissed. Even in the evidence, it is not brought out that the abovesaid construction of ground floor and second floor are/only authorised

constructions. The trial Court itself observes that the plaintiff did not file any document showing that the abovesaid construction was authorised

one. Therefore, on this very ground that the plaintiff has not come to Court with clean hands, the suit should be dismissed. Section 41(i) of the

Specific Relief Act also provides that injunction cannot be granted when the conduct of the plaintiff has been such as to disentitle him to assistance

of the Court. This rule rests on the maxims ""he who seeks equity must do equity"" and ""he who comes into equity must come with clean hands"". It

has been held that a plaintiff who asks for an injunction must be able to satisfy the Court that his own acts and dealings with the defendant have

been fair, honest and free from fraud or illegality and that if in his dealings with the person, against whom he seeks relief, he has acted in unfair and

inequitable manner, he cannot have relief, (vide AIR 1940 69 (Lahore)

That apart, Section 38 of the Specific Relief Act, which provides for such injunction relief specifically states that such injunction may be granted

only to prevent the breach of an obligation existing in favour of the plaintiff. When the case is one of unauthorised construction by the plaintiff, there

is no obligation cast on the defendants to desist for restraining themselves/from taking all necessary action under law to remove the unauthorised

construction, While so, there will be no breach of obligation on the part of the defendants at all. So, also, the Court should refrain from giving any

such injunction as prayed for in the suit.

No doubt, learned Counsel for the appellant sought to attack the reasoning given by the Courts below for refusing the injunction prayed for. But,

there is no necessity to go into the correctness or otherwise of those reasonings by the Courts below since it is clear to me that in view of what I

have stated above, there is absolutely no scope for granting any injunction as prayed for in favour of the appellant. Viewed in that light, the case

does not involve any substantial question of law.

Anyway, I shall just touch upon the arguments advanced by the learned Counsel for the appellant. His point is that in Ex. A.4, only the plaintiff''s

husband''s name is mentioned as owner of the building, while the plaintiff alone is the owner thereof and no notice has been given to the appellant

regarding any proposed action for contravention of the buildings Rules. But this point, in my view, is not relevant since admittedly the building that

has been constructed which violated the building Rules as stated above, is only that of the appellant. Therefore, I do not see any merit in this

second appeal and hence, it is not admitted, but dismissed.