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Judgment
P. Shanumugham, J.—The Union of India, Atomic Energy Division, Hyderabad has filed this Civil Revision Petition under Article 227 of the
Constitution of India against the interim orders passed in I.A. No. 7 of 1999 in O.S. No. 2 of 1999 (I.A. No. 127 of 1999 in O.S.No32 of 1999),
by the Principal District Judge, Tuticorin. Brief facts are as follows: The Union of India had issued a notification u/s 4(1) of the Land Acquisition
Act (in short as ''the Act'') during the year 1989 for acquiring 1158 acres of land in Pazhayakayal village, Srivaikuntam Taluk, Thoothukudi District
for the purpose of setting up a new Zirconium and Titanium Sponge Plant. After due enquiry as contemplated under the Act, possession of the land
was handed over to the Union of India and thereafter various awards were passed, awarding compensation to the owners of the lands. From year
1990 or so, the Union of India was in possession of the property including the trees thereon. It is also stated that the Union of India have
commenced the work of setting up of a new plant and raising of a compound wall in and around the lands so acquired. While so, the respondents
numbering 15 filed O.S. No. 215 of 1998 on the file of the Principal District Munsif, Tuticorin for a permanent injunction, restraining the petitioner
herein from cutting and removing the trees standing in the plaint schedule property. The Interlocutory Application No. 1054 of 1998 taken out by
the respondents was dismissed on 8.1.1999. As against the said order made in the said Interlocutory Application, the respondents preferred a
C.MA.No3 of 1999 before the Principal District Court, Tuticorin on 11.1.1999 but no orders were made thereon.
Without disclosing the earlier proceedings, the respondents have filed another suit, O.S. No. 2 of 1999 for an identical relief before the Sub-
Court, Tuticorin and since the concerned presiding officer of the Court below was on leave on 12.2.1999, the same was transferred and heard by
the District Judge, Tuticorin and the respondents obtained an order of temporary injunction, restraining the petitioners herein from interfering in any
manner as to the cutting and removal of the trees standing in the schedule mentioned properties. The present Civil Revision Petition is filed against
the order granted by the learned Principal District Judge, Tuticorin on the ground that the same has been obtained by the respondents herein by
abuse of process of Court and as against the mandatory requirement of Section 80(2) of the CPC and quite contrary to the procedure
contemplated under Order 39 Rule 3 of Code of Civil Procedure.
Learned Additional Central Government Standing Counsel appearing for the petitioner contended that the orders made and plaint and
entertained by the Lower Court are liable to be struck off, since a clear fraud was committed by the respondents in obtaining such an order before
the Court below by suppressing the material facts before the Court below.
Notice of motion was ordered and the respondents had entered appearance and the matter was heard at length both at the interlocutory stage
as well as at the main revision stage.
The main question that arises for consideration in this revision is whether the plaint itself should be struck off on the ground of suppression of the
material facts by the respondents before the Court below?
Learned counsel appearing for the respondents conceded the suppression of material facts in the earlier suit by the respondents before the Court
below, while obtaining interim orders. However, according to learned counsel for the respondents, the cause of action in the latest suit for totally
different from that of the earlier one and the relief in the earlier suit also differs from that of the relief in the later suit. He further submitted that in the
award enquiry, the officers concerned have clarified that the respondents have every right of cutting and removing the trees in the schedule
mentioned property. The respondents have fairly admitted their guilty of non-mentioning of the facts in the earlier suit before the Court below at the
time of obtaining - interim orders, but such non-mentioning of material facts before the Court below was not intentional. Further, according to the
respondents, it was only a mistake and they do not want to put the blame on anybody other than themselves.
Learned Additional Central Government Standing Counsel appearing for the petitioner has contended that though the remedy of the Union of
India is not under the provisions of Article 227 of the Constitution of India and though the Union of India had every liberty to approach the Court
below for vacating the interim orders made against them, the Union of India has chosen to file this revision under Article 227 of the Constitution of
India on the simple ground that the respondents themselves have admitted that it is a clear case of abuse of process of Court, as they have
suppressed the material facts before the Court below while obtaining interim orders.
I do not find any difference in the relief''s sought for in O.S. No. 2l5 of 1998 and in O.S. No. 2 of 1999. The prayers in both the suits are
identical in nature. Therefore, the respondents having failed in their attempt to obtain any interim order in the earlier suit appears to have moved the
learned Subordinate Judge initially and then the District Judge for obtaining interim orders. The non-mentioning of the material facts in the earlier
suit filed by them before the Court below at the time of filing the subsequent suit is nothing but intentional.
Civil Miscellaneous Appeal No. 3 of 1999 was filed by respondents 1 to 15 on 11.1.1999 against the order of dismissal of Interlocutory
Application No. 1054 of 1999. The subsequent suit viz, O.S. No. 2 of 1999 was filed by respondents 1 to IS since there was no ex parte interim
order in the Civil Miscellaneous Appeal referred to above. The respondents have also thought of filing of a separate suit before the Sub-Court,
Tuticorin, which was subsequently transferred to the file of the District Judge, only for obtaining an interim order. The plea of learned Counsel for
respondents 1 to 15 is that the suppression of material facts by the respondents in the earlier suit before the Court below is only an omission and
there was absolutely no intention for the respondents for doing so and therefore it cannot be given much credence.
Per Contra, according to learned Additional Central Government Standing Counsel appearing for the Union of India the suppression of
material facts by the respondents in the earlier suit before the Court below which went to the root of the interim order is very relevant and the Civil
Revision Petition is liable to be allowed.
I have heard learned Additional Central Government Standing Counsel appearing for the petitioner and the learned Counsel appearing; for all
the respondents. I have also perused the materials available on record. I find there is absolutely no cause of action for obtaining an order of
permanent injunction by the respondents. The subsequent suit filed by the respondent is liable to be dismissed on the ground of suppression of
material facts by them with regard to the filing of the earlier suit before the Court below. The only averments made in the plaint in O.S. No. 215 of
1998 is that the plaintiffs are maintaining the trees and they are ripe for removal for being used as firewood and the plaintiffs are entitled to cut and
remove them for being sold. It is further stated that the plaintiffs have made an attempt to remove some of the odai trees on 7.9.1998 for being
used as firewood and the local village Administrative Officer has raised some objections, which necessitated the filing of the subsequent suit. But it
is not stated as to how the plaintiffs are maintaining the trees in respect of the lands with the trees which were acquired in the year 1990 and as to
how they are entitled to cut and remove those trees. The mandatory requirement as provided u/s 38 of the Specific Relief Act, 1963 for obtaining
an order of permanent injunction is not satisfied by the respondents herein. Section 38 of the Specific Relief Act contemplates the prevention of
breach of an obligation existing in favour of the plaintiffs. The term obligation includes every duty enforceable by laws. In this case there is no
obligation existing in favour of the plaintiffs and there is no duty that can be enforced against the petitioner herein. Consequently, the plaintiffs have
not proved their rights with regard to their enjoyment of the property in question and for seeking an order of permanent injunction.
I have called for the papers relating to the suit O.S.No32/99 and the connected records. The respondents have filed I.A. No. 7/99 and the
learned District Judge, while granting an interim injunction,
The award produced and the learned counsel refers to page 16 of the award where trees are scheduled in valuation. Hence, interim injunction
against R-2 is granted till 25.2.99.
The award said to have been produced is a photocopy in reference to 119.79.0 hectares in Award No. 1/90-91 page 16 of the said award, which
the learned District Judge relied upon, is as follows:-
TREES: There are one withered palmyrah tree and one Margosa tree in S. No. 294. The scattered thorny plants and bushes of scattered growth
are in all lands. The owners are willing to remove trees and thorny plants and bushes.
Therefore, the order refers to S. No. 294 and refers to only two trees. From the records furnished by the learned Central Government Standing
Counsel, there were three notifications u/s 4(1). All these notifications were of the year 1989. There were four awards. Of these, three awards
were of the year 1990. Award No. 1/91-92 is dated 23.1.92. The respondents/plaintiffs claim to be the owners of the properties mentioned in the
scheduled below. They have a total extent of the land, but there are 100 items of survey numbers. But, S. No. 294, which is found in page 16
furnished by the respondent before the learned District Judge, is not found in the schedule of properties. Therefore, I am unable to comprehend as
to how S. No. 294, where there are two trees, was relied upon for the purpose of granting injunction in reference to 100 items of properties
referred in the plaint schedule. Therefore, there is a total non-application of mind. The learned Judge, without regard to the basic requirement, has
simply granted an injunction not to interfere with the right to cut and remove the trees..
Another important aspect is that the respondents appear to have proceeded that there was no valuation of the trees. On the contrary,
according to the award papers furnished by the learned Central Government Standing Counsel in reference to Award No. 2/90-91, trees appear
to have been valued at pages 13, 19, 27, 35, 43, 47, 55, 61, and 67. The trees were valued separately and compensation awarded. Therefore,
there is no cause of action for the petitioners/defendants to object to the cutting and removing of the trees, since the property absolutely vests with
the petitioner Union of India and there is no scope for the Union of India to permit them to cut and remove the trees. Therefore, on the face of it,
the plaint averment cannot be accepted. Secondly, the interim order of the learned District Judge was passed in utter violation of Section 80(1)
C.P.C. No reason has been given and the learned District Judge did not take note the mandatory requirement for having failed to give notice to the
Union of India before filing the suit. After calling for the records considering the implications of the interim order passed, which is per se illegal, I
was informed that the learned Judge retired from service on 31.3.99.
In the decision reported in Hindustan Photo Films Manufacturing Co. Ltd. v. R. Lakshmanan (1998(II) CTC 474), a learned single Judge of
this Court exercising powers under Article 226 of the Constitution of India struck off the suit on the ground that two different suits were filed on the
same set of facts based on same cause of action and the learned single Judge struck off the latter suit on the ground that the riling of the latter suit is
clear abuse of process of Court.
In Ramiah Asari Vs. Smt. Kurshad Begaum and another, a learned single Judge of this Court has held that inherent powers are available to
struck off a plea which is made in abuse of process of Court.
In the decision reported in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , the Supreme Court has
held that fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception to
gain by another''s loss. It is cheating intended to get an advantage. In that case, the plaintiff purchased a property at Court auction and executed a
registered deed of release regarding the property in dispute. Without disclosing those facts the plaintiff filed a suit for partition of the property on
the ground that he has purchased the property on his own behalf. The non production and non-mentioning of the release deed at the trial stage
tantamount to playing fraud on the Court The Supreme Court has further observed that a litigant, who approached the Court is bound to produce
all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side,
then he would be guilty of playing fraud on the Court as well as on the opposition party. In this case, the respondents as owners of the property
whose lands were acquired by the Union of India for setting up of a new Sinconium and Titanium Sponge plant, through various notifications have
received adequate compensation for the lands including the trees thereon. When that being so, they filed the suit, O.S. No. 215 of 1998 before the
Principal District Munsif Court, claiming that they are entitled to get the possession of trees standing in the plaint schedule properties and in an
Interlocutory Application filed by them they obtained an order of injunction restraining the Government from cutting and removing the trees worth
several lakhs of rupees standing in the plaint schedule properties. The respondents have suppressed the material facts before the Court at the time
of obtaining the orders. Therefore, in this Case they have committed fraud.
In the case reported in Tiruchirapalli District Central Co-operative Bank Ltd., etc, and another v. hi. Krishnasami (1994 2 LW 266),
Srinivasan, J (as he then was) has held that it is true that in normal circumstances this court will not entertain any revision petition against an ad
interim ex parte order under which notice is also directed to the opposite party. But, in cases of gross injustice and patent violation of elementary
principles of law, this Court will not hesitate to interfere with such orders. This case is one of such nature. Before ordering interim injunction, the
Court below failed to see the rights of the petitioners vis-a-vis the rights of the respondents. The Court below ought to have seen the necessary
pleadings before granting such orders. The Court below has failed to see whether the requirements of Section 39 of the Specific Relief Act have
been complied with by the respondents and has also failed to visualise the consequence of the orders. Therefore there is a clear violation of
principles of natural justice, where the interference of this Court under Article 227 of the Constitution of India is necessary. In the case reported in
Rathinam and Others Vs. Pavathal, Venkataswami, J (as he then was) has held that it is true that the petitioners have remedies available under the
CPC and as they could not get justice speedily, they have filed the revision under extraneous situation. Order 39, Rule 3 of CPC directs the issue
of notice to the opposite party before granting injunction and in the event of grave urgency requiring grant of injunction without notice, the Court
shall record the reason explaining the object of granting the injunction. In this case, Section 18 notice also had been dispensed with. Learned Judge
in the order impugned has stated thus: ""The learned counsel for the respondents had submitted that the trees were agreed to be removed by the
respondents at the time of award and the award was also produced and the learned counsel shows page 16 of the award, where trees are
scheduled in valuation. Hence interim injunction against the second respondent is granted till 25.2.1979"". In my view, the said order was passed in
total non application of mind. There is no possibility of the respondents themselves agreeing to remove and cut the trees at the time of the award
and there was no award to that effect. Even according to the said order, the trees are scheduled in valuation. Therefore, as the trees were valued,
the respondents had only the right of compensation. In the above circumstances, the order granting interim injunction is clearly a non-speaking
order and in total violation of basic principle of law.
In the case reported in Patasibai and Others Vs. Ratanlal, the Supreme Court has held that the trial should not proceed when there is no
controversial issue but the trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint. Since the
plaint suffers from that fatal defect, the mere issuance of summons by the trial court did not require that the trial should proceed even when no
triable issue is shown to arise; permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation, which cannot be
done. The Supreme Court has I also held that it is not necessary to adopt the technical course of directing the trial Court to make the consequential
order of rejecting the plaint. The practical course of making that order in the proceedings itself to avoid any needless delay in conclusion of futile
litigation should be adopted. In this case, the course adopted by the Court is clear non-application of mind to the facts and as stated above, there
is no cause of action and no right, title or interest accrued to the respondents for getting the relief. That apart, they have suppressed material facts
before the Court of law. In that'' view of the matter, I am of the opinion that the plaint itself suffers from fatal defect, and it has to be struck off to
avoid any needless delay in conclusion of the futile litigation between the parties.
The decision reported in Sudarsan Swain and Others Vs. Jagannath Routh and Others, , referred to and relied on by learned counsel for the
respondents has no relevance. In that case the learned Judge of Orissa High Court held that dismissal for default under Order 9, Rule 8 of prior
suit based on defective title deed will not bar under Order 9, Rule 9 if a subsequent suit for title and partition is based on rectified title deed, as the
subsequent suit is not based on the same cause of action, Learned Counsel for the respondents also referred to the decision of the Supreme Court
in Sidramappa Vs. Rajashetty and Others, , wherein it was held that where the cause of action on the basis of which the previous suit was brought
does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the
subsequent suit. That judgment also will not apply to the facts of this case. In the instant case, the relief claimed by the respondents before the
Court below are identical and the case of action is also one and the same. Therefore, there is clear abuse of process of Court in the present case
by the respondents.
Therefore for all the foregoing reasons, the interim ex parte order granted by the Court below is set aside. The suit filed by the respondents
viz., O.S. No. 2 of 1999, on the file of the Principal District Court, Tuticorin is liable to be dismissed and accordingly, it is dismissed.
Revision Petition is allowed with exemplary costs of Rs. 25,000/- (Rupees twenty five thousand only). The order passed by this Court in
C.M.P. No. 2815 of 1999 is made absolute.