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Judgment
E. Padmanabhan, J.—The petitioner has prayed for the issue of a writ of mandamus forbearing respondents 1 and 2 from supplying petrol,
diesel and other petroleum products to the 3rd respondent in his capacity as the sole proprietor of Thiyagi Petroleum located at Padaiveedu
Village, Sankari (W), Thiruchengodu Taluk, Namakkal District.
Notice of motion was ordered on 3.8.99. On 20.12.2002, this Court, while admitting the writ petition, directed the writ petition to be posted for
orders during the second week of January, 2003. The respondents have been served. The respondents have entered appearance through their
respective counsel. The 3rd respondent has filed a counter.
Heard Mr.N. Kannadasan, learned counsel appearing for the petitioner, Mr. K. Kumar, learned Additional Central Government Standing
Counsel appearing for respondents 1 and 2 and Mr. M.R. Raghavan, learned counsel appearing for the 3rd respondent. With the consent of
counsel for either side, the writ petition itself was taken up for final hearing.
According to the petitioner, the 2nd respondent allotted a petrol outlet at Padaiveedu village, Sankari (W), Tiruchengodu Taluk on 1.6.89 as
per the directions of the first respondent in favour of the 3rd respondent. M/s. Thiyagi Petroleum is a partnership firm consisted by the 3rd
respondent and N.K. Shanmugasundaram, father of S. Saravanan. The partnership firm was formed in respect of the said petroleum outlet. The
petitioner''s father, Shanmugasundaram assigned his partnership rights in favour of his brother, who died subsequently. On the death of the
petitioner''s brother, his right vested upon the petitioner''s mother, Saraswathi. It is claimed that the petitioner''s father had invested a huge sum of
about Rs.4.5 lakhs even during the year 1986 for establishing a petrol outlet. The petitioner and his mother also later contributed to a greater extent
for running of the business. On 1.6.89 onwards business was commenced and the petitioner claims that he has handled the entire business in his
capacity as a partner. During 1984 certain misunderstanding arose, which led to the 3rd respondent claiming exclusive right in respect of the
petroleum outlet. The petitioner instituted O.S. No.512 of 1994 on the file of the District Munsif Court, Thiruchengodu, seeking for the relief of
permanent injunction forbearing the 3rd respondent herein from interfering with the petitioner''s business. After the institution of the said suit,
respondents 1 and 2 have stopped supply of petrol and diesel to the outlet. The 3rd respondent, on his turn, filed O.S. No.533 of 1994 on the file
of the District Munsif Court, Thiruchengodu, to declare that he is the sole proprietor of the petroleum outlet and sought for consequential injunction
against the petitioner, his mother and his father from interfering with his business.
By a common judgment, the two suits were disposed of on 21.12.1998. Admittedly, the suit filed by the petitioner stands dismissed reserving
liberty to the 2nd respondent to initiate action against the 3rd respondent. The suit filed by the 3rd respondent came to be decreed partially and it
was dismissed insofar as it relates to the relief of claiming a mandatory injunction against the petitioner to return the original document detailed in
the plaint B schedule.
As against the judgment and decree, the petitioner preferred A.S. Nos.23 & 24 of 1999 on the file of the Sub Court, Sankari, and the 3rd
respondent has also preferred appeal in A.S. No.71 of 1999. It is represented that the appeals are pending.
Mr. Kannadasan, learned counsel appearing for the petitioner relied upon certain findings recorded by the trial court, namely, District Munsif
Court, Tiruchengodu, holding that the petitioner''s father put forth various efforts in establishing the petroleum outlet and that all the records disclose
that the entire accounts were operated in the name of the petitioner and the petroleum outlet appears to be an establishment as a benami of the
petitioner''s father and, subsequently, the remaining partners are in actual possession of the business and administration of the business. In the said
background the present writ petition has been filed to forbear the respondents 1 and 2 from supplying petrol or diesel to the 3rd respondent.
Per contra, it is the contention of the respondents that when the suit filed by the 3rd respondent has been decreed and the suit instituted by the
petitioner stands dismissed, though the appeals are pending, this Court will decline to exercise the writ jurisdiction as the competent civil court is
seized of the matter. It is also pointed out by the counsel for the contesting respondent that the petitioner has preferred appeals, which are pending
and no interim order has been passed pending the appeals A.S. Nos.23 & 24 of 1999. It is contended that the petitioner cannot prosecute two
parallel remedies. It is also admitted that the suit instituted by the petitioner stands dismissed, while that of the 3rd respondent has been decreed in
part. There is no controversy in this respect, but what is sought to be contended by Mr. Kannadasan, learned counsel for the petitioner is, as the
two first appeals are pending as against the judgment and decree of the trial court in the two suits, based upon certain of the findings rendered by
the trial court, the petitioner has come before this Court.
9.Point for consideration is whether the petitioner is entitled to relief of mandamus as prayed for forbearing Respondents 1 and 2 from supplying
Petroleum to third respondents'' outlet?
It is rightly contended that mere findings as such without a decree, is not enforceable. At this stage, it has to be pointed out that the 3rd
respondent has succeeded in the suit instituted by him and secured a decree in his favour, though partially, while the suit instituted by the petitioner
stands dismissed on merits. The present writ petition is to forbear the respondents 1 and 2 from supplying petroleum products to the 3rd
respondent, who is the authorized dealer in whose name the agency has been granted.
In O.S. No.533 of 1994 on the file of the District Munsif Court, Tiruchengodu, instituted by the 3rd respondent herein, it has been decreed
that the 3rd respondent is the exclusive owner of the petroleum outlet and that in the said business carried on by the 3rd respondent, the writ
petitioner and others shall not interfere. This is an executable decree that has been passed in O.S. No.533 of 1994. However the suit instituted by
the petitioner in O.S. No.512 of 1994 stands dismissed with costs in its entirety.
As of today, there is not only a declaration in favour of the 3rd respondent, but also an injunction against the petitioner. When a competent
court has already declared and granted an injunction in favour of third respondent, it is not open to the petitioner thereafter to come before this
Court and seek the relief of mandamus forbearing the respondents 1 and 2 from supplying petroleum products to the 3rd respondent. Such a
conduct on the part of the petitioner cannot be appreciated and being a party to the suit, which decree is binding so long as it holds good and it is
not set aside, it is not open to the petitioner to come before this Court and seek any relief connected with the petroleum retail outlet. The writ
petition is an abuse of process of this Court.
It is true that in the course of discussion there are findings here and there by the trial court, but that is the subject matter of appeal. That apart
from findings in the absence of decree is of no avail. When an appeal is preferred, every finding recorded by the trial court is set at large till the
appellate court decides the appeal one way or other. The writ petitioner is not entitled to any relief, much less the relief of mandamus as prayed for.
The 3rd respondent contends that he is the exclusive owner of the outlet and he has secured a declaration as well as injunction. It is also
contended that the petitioner cannot move the present writ petition describing himself as M/s. Thiyagi Petroleum represented by partner
Caravanning. All the averments set out in the affidavit has been denied. So also the claims made by the writ petitioner with respect to his father''s
investment in the petroleum retail outlet. It is the assertion of the 3rd respondent that right through he has been carrying on business and he has
produced the original invoices and other documents in support of his stand.
15.It may not be necessary for the respondents 1 and 2 to initiate action at this stage when the appeal is pending. It is stated that 2nd respondent
has commenced supply of petroleum products from 29.12.1998 onwards and business is being conducted. The lower appellate court has not
passed any interim orders nor it has suspended the decree of the trial court passed against the writ petitioner and in favour of the 3rd respondent.
The claim of the petitioner stands rejected as of today by the judgment of the trial court and that of the 3rd respondent has been sustained, but
it is pending in appeal. In the absence of any stay or interim order of suspension neither the petitioner nor this Court could ignore the decree
granted in favour of the 3rd respondent and against the petitioner. However, it is made clear that till the ultimate judgment and decree by which the
dispute between the parties is decided, the petitioner cannot interfere nor he could seek for a mandamus as prayed for.
Whether the respondents 1 and 2 are bound to take action or not at this stage need not be gone into as it is open to them either to await the
judgment and decree of the first appellate court or the higher forum as the case may be. Respondents 1 and 2 cannot be compelled at this stage to
act as the petitioner desires or calls upon. Respondents 1 and 2 had dealings only with the 3rd respondent. Neither the petitioner nor his father had
any privy with respondents 1 and 2 at any point of time. As of today, the claim of the petitioner and his father has been rejected by the trial court,
but pending in appeal.
In the circumstances, the relief of mandamus as prayed for cannot be granted and the writ petition deserves to be dismissed. As of today, the
petitioner is not entitled to the relief of mandamus and the petitioner also cannot prosecute two parallel remedies. Having sought for injunction and
filed suit before the civil court and the 3rd respondent has succeeded in getting a declaration and injunction, this Court will not be justified in even
considering the request for grant of mandamus or such action as against respondents 1 and 2 as it would indirectly interfere with the decree passed
by the trial court, which is not the scope of judicial review nor it could be used as a lever to bypass the appeal remedy or get over the decree.
In the result, this writ petition is dismissed, but without costs.