IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08 / 11 / 2011 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN O.S.A.NOS.22 TO 24 AND 29 TO 31 OF 2009 T.A.Dakshayani ... Appellant/3rd Party in O.S.A.Nos.22 to 24 of 2009 D.Chandra ... Appellant in O.S.A.Nos.29 to 31 of 2009 versus 1.P.Chengiah 2.P.Sarojanamma 3.P.Ravikumar 4.P.V.Prasad 5.R.Subhasri ... Respondents 1 to 5 in all appeals 6.D.Chandra ... Respondent 6 in O.S.A.Nos.22 to 24 of 2009 PRAYER IN O.S.A.NOS.22 AND 29 OF 2009: Appeals filed under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of the Letters Patent against the order and decreetal order of this Court passed in Application No.517 of 2004 in C.S.No.1843 of 1994 dated 15.12.2008. PRAYER IN O.S.A.NOS.23 AND 30 OF 2009: Appeals filed under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of the Letters Patent against the order and decreetal order of this Court passed in Application No.3738 of 2008 in C.S.No.1843 of 1994 dated 15.12.2008. PRAYER IN O.S.A.NOS.24 AND 31 OF 2009: Appeals filed under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of the Letters Patent against the order and decreetal order of this Court passed in Application No.3741 of 2008 in C.S.No.1843 of 1994 dated 15.12.2008. https://hcservices.ecourts.gov.in/hcservices/ For Appellant in O.S.A.Nos.22 to 24 of 2009 : Mr.T.R.Rajagopal Senior Counsel for Mr.T.V.Krishnamachari For Respondents 1 to 5 in all the appeals : Mr.A.R.L.Sundaresan Senior Counsel for M/s.Rugan & Arya For Appellant in O.S.A.Nos.29 to 31 of 2009 and for 6th Respondent in O.S.A.Nos.22 to 24 of 2009 : No appearance COMMON JUDGMENT D.HARIPARANTHAMAN, J. The appellant in O.S.A.Nos.22 to 24 of 2009 is a third party to the suit in C.S.No.1843 of 1994. The respondents 1 to 5 are the plaintiffs in C.S.No.1843 of 1994 and the sixth respondent is the defendant in the said suit. 2.The appellant in O.S.A.Nos.29 to 31 of 2009 is the defendant in C.S.No.1843 of 1994 and respondents 1 to 5 are the plaintiffs in the said suit. 3.The parties are referred to as per the cause title in O.S.A.Nos.22 to 24 of 2009. 4.The brief facts leading to the filing of these appeals are as follows: (i)One Ms.Banupriya entered into an agreement of sale with the sixth respondent on 08.11.1990, with respect to some properties at T.Nagar, Chennai. Ms.Banupriya filed a suit in C.S.No.1142 of 1992 seeking specific performance of the sale agreement dated 08.11.1990 referred to above and the sixth respondent is the defendant therein. The parties to the suit compromised and a compromise decree was passed on 30.01.2003. As per the compromise decree, the sixth respondent, who is the defendant in C.S.No.1142 of 1992 has to execute a sale deed in respect of the suit property in favour of Ms.Banupriya or her nominee. Accordingly, the sixth respondent executed a sale deed dated 10.07.2003 in favour of the appellant, who is the nominee of Ms.Banupriya. https://hcservices.ecourts.gov.in/hcservices/ (ii)The respondents 1 to 5 entered into an agreement of sale with the sixth respondent on 15.02.1993, with respect to the same property. (iii)The respondents 1 to 5 also filed a suit in C.S.No.1843 of 1994 seeking specific performance of the agreement of sale dated 15.02.1993. The respondents 1 to 5 obtained an order of injunction on 29.02.1996 in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994. (iv)In these circumstances, the respondents 1 to 5 have filed another suit in C.S.No.128 of 2006 against the appellant, the sixth respondent and Ms.Banupriya seeking to declare the sale deed dated 10.07.2003 executed by the sixth respondent in favour of the appellant, as void and invalid and also sought consequential injunction restraining the appellant from entering upon or occupying any portion of the suit property on the basis of the said sale deed or by interfering with the water or electricity connection to the suit property or by making any alienation or encumbrance regarding the suit property. The respondents have also obtained an order of interim injunction on 22.02.2006 in O.A.No.135 of 2006 in C.S.No.128 of 2006 restraining the appellant herein from acting upon the sale deed dated 10.07.2003. (v)While so, the respondents 1 to 5 filed an application in A.No.517 of 2004 in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994 invoking Order XXXIX Rule 2A of the Civil Procedure Code for attaching the suit property and also for detention of the sixth respondent in civil prison for disobeying the order of injunction granted by this Court on 29.02.1996 in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994. (vi)The sixth respondent has filed a counter affidavit in the aforesaid A.No.517 of 2004 in February 2004 itself. The respondents 1 to 5 have filed reply affidavit to the counter affidavit filed by the sixth respondent in A.No.517 of 2004. (vii)In the meantime, the suit in C.S.No.1843 of 1994 was posted for trial on 20.04.2007, which was listed before the Additional Master for recording evidence. Proof affidavit of P.W.1 in C.S.No.1843 of 1994 was filed on 03.01.2008 and exhibits P1 to P19 were marked and the matter was adjourned to 09.01.2008 for cross examination of P.W.1. (viii)While so, on 09.01.2008, the respondents 1 to 5 filed a memo stating that the sixth respondent is not entitled to cross examine P.W.1 until the sixth respondent is purged herself of the contempt in A.No.517 of 2004 filed under Order XXXIX Rule 2A of the Civil Procedure Code. (ix)Hence, the Additional Master posted the matter before the https://hcservices.ecourts.gov.in/hcservices/ Court. Accordingly, A.No.517 of 2004 was listed before the Court on 25.01.2008. (x)In these circumstances, the learned Judge, before whom the application in A.No.517 of 2004 was listed on 25.01.2008, passed an order that the matter will be taken up after the evidence is recorded on both sides in C.S.No.1843 of 1994 and directed the matter to be listed before the Master on 30.01.2008 for recording evidence on both sides in the suit. (xi)However, A.No.517 of 2004 was listed before another learned Judge on 11.07.2008. The learned Judge, taking note of the order dated 25.01.2008 passed by this Court, directed the Additional Master to proceed with recording of evidence of both sides in the suit and posted the suit before the Additional Master for continuation of recording evidence on 14.07.2008. (xii)While so, the respondents 1 to 5 filed applications in A.Nos.3738 and 3741 of 2008 in C.S.No.1843 of 1994 praying to dispose of the application in A.No.517 of 2004 in C.S.No.1843 of 1994 before ever the learned Master proceeds with the trial in C.S.No.1843 of 1994 and to issue direction that the sixth respondent shall not be heard in the main suit in C.S.No.1843 of 1994 until the sale executed by her in violation of the order of injunction passed by this Court on 29.02.1996 is cancelled in accordance with law, respectively. (xiii)All those applications viz., A.Nos.517 of 2004 and 3738 and 3741 of 2008 in C.S.No.1843 of 1994 were disposed by another learned judge on 15.12.1998 and the learned Judge held that the sixth respondent was guilty of contempt in entering into sale deed dated 10.07.2003 in violation of the injunction order dated 29.02.1996 passed by this Court in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994, referred to above. However, considering her age and health conditions, the learned Judge did not punish her for committing contempt. The learned Judge also declared that the sale deed dated 10.07.2003 executed by the sixth respondent in favour of the appellant is null and void, by exercising the inherent jurisdiction of this Court under Section 151 of the Civil Procedure Code. (xiv)The said order dated 15.12.2008 passed by this Court in A.Nos.517 of 2004, 3738 and 3741 of 2008 in C.S.No.1843 of 1994 is questioned by the appellant by filing appeals in O.S.A.Nos.22 to 24 of 2009. (xv)The said order dated 15.12.2008 passed in A.Nos.517 of 2004, 3738 and 3741 of 2008 in C.S.No.1843 of 1994 is also questioned by the sixth respondent by filing appeals in O.S.A.Nos.29 to 31 of 2009. https://hcservices.ecourts.gov.in/hcservices/ 5.We have heard the submissions made on either side. 6.Mr.T.R.Rajagopal, learned Senior Counsel for the appellant in O.S.A.Nos.22 to 24 of 2009 has submitted that the order of the learned single Judge is against the orders dated 25.01.2008 and 11.07.2008 passed by the learned Judges in O.A.No.517 of 2004 as in those orders the application was directed to be listed after recording of evidence on both sides in the suit in C.S.No.1843 of 1994. The learned Senior Counsel has also submitted that the learned single Judge, has in fact, decreed the suit in C.S.No.128 of 2006 filed by the respondents 1 to 5 by way of the order passed in A.No.517 of 2004 filed under Order XXXIX Rule 2A of the Civil Procedure Code, which is without jurisdiction and not permissible under law. The learned Senior Counsel also submitted that while the appellant is the second defendant in C.S.No.128 of 2006 and relief claimed against her in the said suit in C.S.No.128 of 2006 was granted by the learned Judge in A.No.517 of 2004 in C.S.No.1843 of 1994, without hearing the appellant, as the appellant was not a party to the proceedings, it is against law and in violation of the principles of natural justice. The learned Senior Counsel further submitted that the learned Single Judge has exceeded his jurisdiction in the contempt proceedings initiated under Order XXXIX Rule 2A of Civil Procedure Code and held on merits that the sale agreement dated 08.11.1990 was a sham and nominal. Having held so, there is nothing that could remain for adjudication in C.S.No.1843 of 1994 and C.S.No.128 of 2006. The learned Senior Counsel also submitted that the judgments relied on by the learned Single Judge have no application to the present case. The learned Senior Counsel has submitted that nowhere an order setting aside the sale has been passed by Courts in contempt proceedings and he has relied on the following judgments in support of his contentions: (a) Judgment of the Honourable Supreme Court in INDIAN BANK VS. SATYAM FIBRES (INDIA) PVT. LTD [1996 (5) SCC 550] (b) Judgment of the Honourable Supreme Court in BALDEVBHAI GOPALBHAI PATEL AND OTHERS VS. K.M.V. COOP. HSG. SOCIETY LTD. AND OTHERS [2000 (10) SCC 251] (c) Judgment of the Honourable Supreme Court in GURUSWAMY NADAR VS. P.LAKSHMI AMMAL [AIR 2008 SC 2560] (d) Division Bench judgment of this Court in TAMILNAD MERCANTILE BANK LTD. AND OTHERS VS. TAMILNAD MERCANTILE BANK SHAREHOLDER'S WELFARE ASSOCIATION AND ANOTHER [2006 (2) CTC 97] 7.On the other hand, the learned Senior Counsel for the respondents 1 to 5 has sought to sustain the order of the learned Single https://hcservices.ecourts.gov.in/hcservices/ Judge. According to the learned Senior Counsel, since the sale took place in violation of the injunction order passed by this Court, this Court has power and jurisdiction to set aside the same, by exercising its inherent power under Section 151 of the Civil Procedure Code, while even dealing with the application under Order XXXIX Rule 2A of the Civil Procedure Code. It was submitted that since the sixth respondent committed fraud on the Court by executing the sale deed dated 10.07.2003 in favour of the appellant, deliberately violating the injunction order dated 29.02.1996 in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994, the learned Single Judge was correct in setting aside the same. It was also submitted that the learned Single Judge has correctly held that the sixth respondent could have no right to defend herself in C.S.No.1843 of 1994 unless she purged herself out of the contempt committed by her. The learned Senior Counsel also submitted that since the application in A.No.517 of 2004 was not finally disposed of, there was nothing wrong on the part of the learned Single Judge in taking up the same and setting aside the same. The learned Senior Counsel has relied on the following judgments in support of his submissions:- (a) Full Bench judgment of this Court in CENTURY FLOUR MILLS LTD. VS. S.SUPPIAH AND OTHERS [AIR 1975 MADRAS 270] (b) Judgment of the Honourable Supreme Court in UNION CARBIDE CORPORATION ETC. VS. UNION OF INDIA [AIR 1992 SC 248] (c) Judgment of the Honourable Supreme Court in RUBY SALES AND SERVICES (P) LTD., AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS [1994 (1) SCC 531] (d) Judgment of the Honourable Supreme Court in DELHI DEVELOPMENT AUTHORITY VS. SKIPPER CONSTRUCTION CO. (P) LTD. AND ANOTHER [1996 (4) SCC 622] (e) Judgment of the Honourable Supreme Court in SURJIT SINGH AND OTHERS VS. HARBANS SINGH SINGH AND OTHERS [AIR 1996 SC 135] (f) Division Bench judgment of the Bombay High Court in KESHRIMAL JIVJI SHAH AND ANOTHER VS. BANK OF MAHARASHTRA AND OTHERS [2004 (122) CC 831] (g) Judgment of the Honourable Supreme Court in PRESTIGE LIGHTS LTD., VS. STATE BANK OF INDIA [2007 (4) CTC 727] (h) Judgment of the Honourable Supreme Court in USHA SINHA VS. DINA RAM AND OTHERS [2008 (7) SCC 144] https://hcservices.ecourts.gov.in/hcservices/ 8.We have considered the submissions made on either side and perused the materials available on record. 9.The following issues have arisen for consideration: (i)Whether the learned Single Judge was correct in deciding the application in A.No.517 of 2004, while two other learned Judges posted the same along with the suit. (ii)Whether particularly in the circumstances of the case, the learned Judge was correct in setting aside the sale or in declaring the sale deed dated 10.07.2003 executed by the sixth respondent in favour of the appellant as null and void while deciding the contempt petition under Order XXXIX Rule 2A of Civil Procedure Code, thereby in effect decreeing the suit in C.S.No.128 of 2006, without hearing the appellant. 10.ISSUE NO.1 (i)One Ms.Banupriya entered into an agreement of sale with the sixth respondent on 08.11.1990 with respect to some property at T.Nagar, Chennai. Ms.Banupriya filed a suit in C.S.No.1142 of 1992 against the sixth respondent seeking specific performance of the sale agreement dated 08.11.1990 referred to above and the sixth respondent is the only defendant therein. (ii)After the said Ms.Banupriya filed the suit in C.S.No.1142 of 1992 against the sixth respondent seeking specific performance of the sale agreement dated 08.11.1990, the sixth respondent entered into another sale agreement dated 15.02.1993 with the respondents 1 to 5, with respect to the same property. (iii)The respondents 1 to 5 also filed a suit in C.S.No.1843 of 1994 seeking specific performance of the sale agreement dated 15.02.1993. Therefore, the issue is as to which agreement has to be specifically enforced, has to be decided by this Court. (iv)It is true that the said Ms.Banupriya was not able to secure injunction against the sixth respondent in the suit in C.S.No.1142 of 1992 and the injunction application was dismissed. On the other hand, the respondents 1 to 5 obtained an order of injunction on 29.02.1996 in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994. (v)However, it has to be decided on merits after trial as to https://hcservices.ecourts.gov.in/hcservices/ the effect of the injunction order dated 29.02.1996 in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994, since already a suit in C.S.No.1142 of 1992 was pending on the same subject. That is, the issue as to the principle of lis pendens would be attracted or not has to be decided by this Court in the main suit. However, a compromise decree was entered into between Ms.Banupriya and the sixth respondent in C.S.No.1142 of 1992 on 30.01.2003. The sixth respondent did not bring to the notice of this Court about the injunction order dated 29.02.1996 passed in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994. Pursuant to the compromise decree, the suit property was sold by the sixth respondent to the appellant by executing a sale deed dated 10.07.2003. In these circumstances, the respondents 1 to 5 filed a suit in C.S.No.128 of 1006 seeking to setting aside the sale as void and invalid. (vi)The respondents 1 to 5 have also filed the application in A.No.517 of 2004 under Order XXXIX Rule 2A of Civil Procedure Code seeking to attach the suit property and to punish the sixth respondent for having committed contempt of the order dated 29.02.1996 passed in O.A.Nos.636 and 637 of 1995 in C.S.No.1843 of 1994. The said application was filed in February 2004. The sixth respondent filed counter affidavit in February 2004 itself. The respondents 1 to 5 filed a reply affidavit to the counter affidavit in April 2004. Thereafter, in fact, the respondents 1 to 5 filed the suit in C.S.No.128 of 2006 to set aside the sale deed dated 10.07.2003. That is, the respondents 1 to 5 did not seek to set aside the sale in the application in A.No.517 of 2004 as they were aware that the same could not be done in the proceedings under Order XXXIX Rule 2A of the Civil Procedure Code. Hence, they correctly filed the suit in C.S.No.128 of 2006 making Ms.Banupriya, the appellant and the sixth respondent as defendants therein. (vii)Furthermore, the respondents 1 to 5 participated in the trial in C.S.No.1843 of 1994 before the Additional Master of this Court. On 03.01.2008, P.W.1 – Mr.P.Chengiah, the first respondent herein, filed proof affidavit in C.S.No.1843 of 1994 and 18 documents were marked as Exs.P1 to P18 and the matter was adjourned to 09.01.2008 for cross examination of P.W.1 by the sixth respondent. (viii)The respondents 1 to 5 filed a memo dated 09.01.2008 stating that the sixth respondent cannot cross examine P.W.1 without purging herself of the contempt. The said memo is extracted hereunder: "MEMO FILED BY THE PLAINTIFFS The plaintiffs abovenamed submit as follows:- 1.In the above suit the Proof Affidavit of the first plaintiff Mr.P.Chengaiah has already been filed and https://hcservices.ecourts.gov.in/hcservices/ exhibits were marked. The suit is posted today for cross examination of PW-1. 2.In O.A.Nos.636 & 637 of 1995 in the above suit, this Hon'ble Court was pleased to pass an order dated 29.02.1996 directing the defendant not to alienate the suit property till the disposal of the suit. The defendant had not filed any appeal against the said order. However the defendant had sold the suit property to the third party under a sale deed dated 10.07.2003 registered as document No.1567 of 2003 in SRO, T.Nagar, Chennai. 3.The Plaintiff has filed a Application vide A.No.517 of 2004 under Order XXXIX Rule 2A of C.P.C to punish the defendant for willfully disobeying the order dated 29.02.1996 passed by this Hon'ble Court in O.A.Nos.636 & 637 of 1995. The said A.No.517 of 2004 is still pending before this Hon'ble Court. 4.Hence the defendant is not entitled for cross examination of PW-1 until the defendant has purged herself of the said contempt in view of the Apex Court judgment reported in 2007 (4) CTC – 727. 5.It is therefore prays that the suit may be posted before the Hon'ble Court for further proceedings and thus render justice." (ix)In view of the memo being filed by the respondents 1 to 5, the Additional Master posted the suit in C.S.No.1843 of 1994 before the Court. The same was listed before the learned Judge of this Court. The learned Judge passed the order on 25.01.2008 in A.No.517 of 2004 in O.A.No.636 of 1995 in C.S.No.1843 of 1994 directing that the application be listed along with the suit and that the Additional Master was directed to record evidence of both sides in the suit. The said order dated 25.01.2008 is extracted hereunder: "This application has been taken out by the plaintiffs in the suit under Order XXXIX Rule 2A of CPC seeking attachment of the suit property and also ordering the detention of the respondent/defendant in civil prison for disobeying the order of injunction granted by this Court on 29.02.1996 in O.A.No.636 of 1995 and 637 of 1995. 2.According to the applicants/plaintiffs, the respondent sold the property, despite an order of https://hcservices.ecourts.gov.in/hcservices/ injunction operating against her. 3.However, it is stated that the respondent is now aged about 67 years and she is suffering from various ailments. It is stated that the first witness on the side of the plaintiffs has already filed a proof affidavit and documents have also been marked. The matter stood posted for cross-examination of PW1 by the counsel for the defendant. The suit is of the year 1994 and hence I am of the considered view that this application can be taken up after the evidence is recorded on the side of the plaintiffs as well as defendant. 4.Therefore the suit is directed to be listed before the Master for recording evidence of both sides on 30.1.2008. After recording the evidence, Registry shall post the suit for final hearing along with this application." (x)Thereafter, P.W.1 was partly cross examined. While so, the counsel for the respondents 1 to 5 represented before the Additional Master that an appeal against the order dated 25.01.2008 was preferred. (xi)In these circumstances, the Additional Master again posted the application in A.No.517 of 2004 before the Court. When the matter was listed before another learned Judge on 11.07.2008, the learned Judge passed the following order: "1.This Court by order dated 25.1.2008 considering the age of the witness/P.W.1 has directed to record the evidence of the witness on priority basis since she was suffering from various ailments and the matter was posted for cross examination of P.W.1 by the learned counsel for the defendant. It is not in dispute that the suit is of the year 1994. 2.Considering the facts and circumstances, the order was passed by my learned brother V.Ramasubramaniam J, directing the suit be listed before the Master for recording evidence on 30.1.2008 and directed the Registry that after recording the evidence, to post the suit for final hearing along with the application A.No.517 of 2004 in O.A.636 of 1995. 3.According to Mrs.Chitra Sampath learned counsel appearing for the defendant, P.W.1 was examined in chief and partly cross examined while so, before completing the evidence of P.W.1, the plaintiff filed a https://hcservices.ecourts.gov.in/hcservices/ memo to post the above suit before this court saying that the plaintiff is going to file appeal against the order dated 25.1.2008. 4.So far, no appeal has been preferred and admittedly, no stay has been granted against the above said order and therefore, I am of the view, in the interest of justice, that the Additional Master should proceed further and complete the evidence of P.W.1 and also complete the trial of the suit, as directed by my predecessor in the order dated 25.1.08. 5.Hence, post the case before Additional Master for continuation of recording evidence on 14.7.08." (xii)The learned Judge found that no appeal was preferred against the order dated 25.01.2008 and no interim stay of the order dated 25.01.2008 was obtained and the learned Judge directed the Additional Master to continue with the recording of evidence as ordered by His predecessor Judge in the order dated 25.01.2008. xiii)While so, the respondents 1 to 5, instead of proceeding with the trial in C.S.No.1843 of 1994 as directed by the two learned Judges in their orders dated 25.01.2008 and 11.07.2008, had chosen to file applications namely A.Nos.3738 and 3741 of 2008. xiv)In the application in A.No.3741 of 2008, the respondents 1 to 5 sought to dispose the application in A.No.517 of 2004 in C.S.No.1843 of 1994 before the Additional Master proceeds with the trial of the case in C.S.No.1843 of 1994. xv)In A.No.3738 of 2008, the respondents 1 to 5 sought for a direction that the sixth respondent shall not be heard in the main suit, until the sale deed executed by the sixth respondent in violation of the injunction order dated 29.02.1996 is cancelled, in accordance with law, by the sixth respondent or by a decree of this Court. xvi)The aforesaid applications were listed before another learned Judge for hearing and the learned Judge passed the order dated 15.12.2008 in A.Nos.517 of 2004 and 3738 and 3741 of 2008 in C.S.No.1843 of 1994, declaring the sale deed dated 10.07.2003 as null and void, which is impugned in these appeals. xvii)When a