1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16 .11.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA(MD)No.332/2009 MP.Nos.1/2009 & 2/2011 Siva Fireworks Industries by its Partner Subramanian, Sivakasi Taluk Virudhunagar District Appellant/Respondent Plaintiff Vs 1.Parasakthivel 2.Vikraman 3.K.V.Uma Maheswari Respondents/Appellants Defendants Prayer:- This Second Appeal is filed against the Judgement and Decree dated 29.11.2008 passed in AS.No.26/2008 by the learned Sub Judge, Virudhunagar, reversing the Judgement and Decree dated 26.04.2007 passed in OS.No.133/2006 by the learned District Munsif, Virudhunagar. For Appellant : Mr.V.R.Shanmuganathan For Respondents : Mr.M.Ashok Kumar-RR1&2 Mr.M.V.Venkataseshan-R3 JUDGEMENT This Second Appeal is filed by the Plaintiff challenging the Judgement and Decree dated 29.11.2008 passed in AS.No.26/2008 by the learned Sub Judge, Virudhunagar, reversing the Judgement and Decree dated 26.04.2007 passed in OS.No.133/2006 by the learned District Munsif, Virudhunagar, only with respect to the findings in so far as the item(2) of the suit properties is concerned. 2.The case of the Plaintiff as set out in the plaint is as follows:- The Plaintiff, the Defendants and one Paramasivam are brothers and they are the partners of the Plaintiff Firm by name Siva Fireworks Industries, which was started on 9.3.1993 as a Partnership Firm and registered under the Partnership Act, 1932. The Plaintiff Firm purchased the item (1) of suit properties on 03.09.1992 and license was given on 10.11.1993 to the said Firm to run the fireworks business. The Defendants and Paramasivam have left the Firm on 27.12.1998. Thereafter, the sons of the Plaintiff have joined the Firm as partners. From 27.12.1998, the 1st Defendant was not a partner in the said Firm. The item (2) of the suit properties belonged to the 1st Defendant. In so far as the item (2) is concerned, on 1.1.994 lease for a period of thirty years was granted to the Firm. The Plaintiff has been doing the business in both item (1) and Item (2) of the suit properties. The father of the Plaintiff bequeathed the item (1) of the suit properties belonged to the Plaintiff Firm to the 2nd Defendant under the settlement deed, for which, the father of the Plaintiff has no manner of right. While so, the Defendants interfered with the running of the business by the Plaintiff in the property belonged to https://hcservices.ecourts.gov.in/hcservices/ 2 the 1st Defendant on a valid lease. Hence, the suit has been filed for permanent injunction restraining the Defendants from interfering with the peaceful possession and enjoyment of the suit properties by the Plaintiff and in so far as the item (2) of the suit properties is concerned, till the lease granted to the Plaintiff by the 1st Defendant is in force, restraining the Defendants from interfering with the peaceful possession and enjoyment of the item (2) of suit properties by the Plaintiff and for costs. 3.In the Written Statement filed by the Defendants, it is averred as follows:- The relationship between the Plaintiff and the Defendants is admitted. The averments relating to the partnership Firm and purchase of the item (1) of the suit properties by the Plaintiff Firm are false. The Plaintiff, one Subramaniam, the Defendants and one Paramasivam are brothers and one Narayanan is their father. The item (1) of the suit properties belonged to their father, who acquired the same by a valid sale deed. Since there arose misunderstanding between the Plaintiff and the Defendants, the Defendants left the said Fireworks Firm and thereafter, the Plaintiff impleaded his sons as the partners of the Firm. The Plaintiff Firm did not renew the license for explosives and the license was cancelled and the license for the Firm was also not renewed and for the past six years, the Plaintiff Firm was locked and closed. The item (2) of the suit properties is the self acquired property of the 1st Defendant. The lease was granted to the Plaintiff Firm by the 1st Defendant for a period of thirty years. The item (1) of the suit properties is one kilometer away from the item (2) of the suit properties. The said lease was cancelled. The Plaintiff is in no way connected with the suit properties. In order to evade from the liability to the third parties, the suit has been filed by the Plaintiff. The father of the Plaintiff is a necessary party, since he is the owner of the suit properties. In item (1) of the suit properties, one acre of land was settled to the 1st Defendant by his father under a settlement deed. The Plaintiff Firm borrowed loan from the State Bank of India, Sivakasi by mortgaging the property belonged to the 1st Defendant and the said Bank initiated recovery proceedings against the Plaintiff Firm. In order to evade from the said proceedings, the suit has been filed. In such circumstances, the suit is liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A7 were marked and PW.1 was examined. On behalf of the Defendants, Ex.B1 to B4 were marked and DW.1 was examined. 5. On consideration of the oral as well as the documentary evidence, the Trial Court decreed the suit in part, granting permanent injunction in so far as the item (2) of the suit properties is concerned and the appeal filed as against the same by the Defendants was allowed, setting aside the Judgement and Decree of the Trial Court and dismissing the suit in its entirety. As against the same, this Second Appeal has been filed by the Plaintiff Firm. 6. This Second Appeal has been entertained on the following substantial questions of law:- "When the lease in favour of the Plaintiff was not legally terminated by the landlord namely the 1st Defendant, whether the lower Appellate Court was right in refusing to grant the decree https://hcservices.ecourts.gov.in/hcservices/ 3 for injunction?" 7. I have heard the learned counsel on either side, considered their submissions, also pursed the materials on record and the impugned judgements of the courts below carefully. 8. Admittedly, the pleadings of the Plaintiff do not indicate as to what is the nature of interference caused by the Defendants. The bald statement in the plaint is that the Defendants attempted to interfere with the running of the business by the Plaintiff in the item (2) of the suit properties, when the lease was in existence that is till 2024. Though it is stated that the lease is for 30 years, but the said document is not produced, as admittedly it is an unregistered document. It is also admitted that the lease is in respect of item (2) of the suit properties to run the business, namely, Siva Fireworks Industries. The 1st Defendant, while he was examined as DW.1, admitted that the said Fireworks remain closed for the past seven years. Further, the Plaintiff has stated in his evidence that he never interfered with the running of the business by the Plaintiff and no attempt was made by him to sell the property. It is not in dispute that proceedings are pending in the Debt Recovery Tribunal against the said Firm for recovery of the loan by the State Bank of India, Sivakasi Branch. According to the Defendants, after obtaining permission, the item (2) of the suit properties has been sold to the 3rd Respondent herein. 9. It is to be mentioned here that apart from vague allegation that the Defendants are trying to interfere with the possession and enjoyment of the item (2) of the suit properties, there is no valid evidence either oral or documentary let in by the Plaintiff to show that the Defendants have interfered with the possession and enjoyment of the suit properties. 10. In a suit for injunction, it is the bounden duty of the Plaintiff to prove the interference caused by the Defendants. Therefore, it is incumbent upon the Plaintiff to affirmatively establish the right on the basis of which he sought to restrain the Defendant. That too, when the Plaintiff applies for an injunction to restrain the violation of an alleged right, if the existence of the right is disputed, he must establish that right before he gets the injunction to prevent the recurrence of its violation. The court has no jurisdiction to grant an injunction to restrain any act which inflicts no legal wrong or cause interference. 11. An injunction to restrain an act will be refused, where it is not reasonably clear that it would cause injury. The Court should not act upon vague apprehensions, though it will interfere, where the Defendant claims a right to do the thing threatened which the Plaintiff alleges to be a wrong. The Court will not grant injunction, where it appears that any injunction, which may be granted would inflict far more injury on the Defendant than any advantage which the Plaintiff would derive from it. In this case, the allegations made against the Defendant is not reasonably clear that would cause injury to the Plaintiffs and as such, the first appellate court was right in refusing injunction. In granting or withholding an injunction, the Court has also to consider the balance of convenience, the materially of the injury to the Plaintiff and the hardship to the Defendant. As rightly pointed out by the first appellate court , there is nothing on record except the oral evidence that the lease was https://hcservices.ecourts.gov.in/hcservices/ 4 granted for 30 years and is in existence. When the lease itself is not proved, there is no need to go into the question whether the lease was not legally terminated by the 1st Defendant. The first appellate court, after careful appreciation of both oral and documentary evidence, has rightly refused to grant injunction as sought for by the Plaintiff and there is no warrant for this court to interfere with the well considered findings of the first appellate court. 12. In the result, this Second Appeal is dismissed, confirming the Judgement and Decree of the lower Appellate Court. However, in the circumstances of the case, there will be no order as to costs. Consequently, the connected MPs are also dismissed. SD ASST REGISTRAR(Crl.Side) /TRUE COPY/ SUB ASST REGISTRAR Srcm To: 1.The Sub Judge, Virudhunagar 2.The District Munsif, Virudhunagar 3.The Record Keeper, VR Section, Madurai Bench of Madras, High Court, Madurai. 4. 1Cc To Mr.M.Ashokkumar, Advocate vide SR No.40245/11 5. 1cc To Mr.M.V.Venkataseshan, Advocate vide SR No.39370/11 SB:12/01/2012 4P 6C Pre-Delivery Judgement in SA(MD)No.332/2009 https://hcservices.ecourts.gov.in/hcservices/