IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.06.2008 CORAM THE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLA and THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN WRIT PETITION Nos.760 of 2007 and 9089 of 2005 and Appeal Suit No.207 of 2008 and W.P.M.P.No.9874 of 2005 in W.P.No.9089 of 2005 and M.P.Nos.1,2 and 3 of 2008 W.P.No.760 of 2007 R.Krishna ... Petitioner Vs. 1. The Corporation of Chennai, rep. by its Commissioner, Ripon Buildings, Park Town, Chennai-600 003. 2. The Chairman, Tamil Nadu Housing Board, No.33, Anna Salai, Nandanam, Chennai-600 035. 3. The Tahsildar, Mambalam-Guindy Taluk, Chennai-600 078. 4. K.Kanniappan 5. Shanmugam 6. Devaki 7. Jeya 8. Nirmala 9. N.Mohan 10.N.Parameswari 11.N.Rajeswari ... Respondents (R4 to R11 represented by their Power of Attorney Mr.D.Peter) https://hcservices.ecourts.gov.in/hcservices/ W.P.No.9089 of 2005 K.Kanniappan ... Petitioner Vs. The Commissioner, Corporation of Chennai, Chennai. ... Respondent A.S.No.207 of 2008 Corporation of Chennai, rep. by its Commissioner, Ripon Building, Chennai. ... Appellant Vs. 1. K.Kanniappan 2. Shanmugam, 3. Devaki 4. Jeya, 5. Lakshmi (Deceased) 6. Mrs. Nirmala 7. N.Mohan 8. N.Parameswari (Minor) 9. N.Rajeswari(Minor) Writ Petitions filed under Article 226 of the Constitution of India for the issuance of writ of mandamus as stated therein. Appeal Suit filed under Order 41 Rule 1 and under Section 96 C.P.C. as stated therein. Mr.V.Seshadri .. For Petitioner in W.P.760/2007 Mr.K.Thyagarajan .. For Petitioner in W.P.9089/2005 Mr.L.N.Praghasam .. For R1 in W.P.760/2007, for Respondent in W.P.9089/2005 and for Appellant in A.S.207/2008 Mr.R.Girirajan .. For R2 in W.P.760/2007 Mrs.Geetha Thamaraiselvan Govt. Advocate .. For R3 in W.P.760/2007 Mr.S.M.Loganathan .. For R4,5 and 7 to 11 in W.P.760/2007 and A.S.207/2008 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA,J Writ Petition No.760 of 2007 has been filed as a Public Interest Litigation, seeking for the issuance of writ of mandamus to direct the first respondent to maintain the land measuring an extent of 10 grounds and 74 sq. ft. comprised in Block No.72, T.S.No.36, situate in XII Avenue, Ashok Nagar, Chennai as Children's Play-space as earmarked in the Ashok Nagar layout plan and consequently forbear the respondents 4 to 11 from claiming any right in the above land. Writ Petition No.9089 of 2005 has been filed by the 4th respondent in W.P.No.760 of 2007 seeking for the issuance of writ of mandamus to forbear the Commissioner of Corporation, Chennai, the first respondent in W.P.No.760 of 2007 from interfering with the possession and enjoyment of the property at New No.122 Door No.57, XII Avenue, Ashok Nagar, Chennai-83, in Corporation Division Old No.114, measuring an extent of 10 grounds possessed by the petitioner and also for further direction to the first respondent to immediately remove the notice board placed thereon. The respondents 4 to 11 filed a suit in O.S.No.1621 of 1992 on the file of the 14th Assistant Judge, City Civil Court, Chennai for a declaration that the above referred land does not vest with the Corporation of Chennai and also sought for a permanent injunction as against the Corporation of Chennai. The said suit was decreed ex parte on 9.11.1993. The ex parte decree was set aside once by this Court in its order dated 7.6.2002 passed in C.R.P.No.904 of 1998. It was a conditional order directing the Corporation of Chennai to pay a sum of Rs.25,000/- by way of costs to the Advocates' Welfare Association Fund. Even thereafter subsequently also the Corporation of Chennai was set ex parte on 18.2.2003 and once again an ex parte decree came to be passed in favour of the Respondents 4 to 11 in W.P.No.760 of 2007. As against the decree dated 18.2.2003, passed in O.S.No.1621 of 1992, the Corporation of Chennai has come forward with the above said appeal in A.S.No.207 of 2008. 2. The learned counsel appearing for the respondents 4 to 11 reported no instructions. However, for the very same parties Mr.S.M.Loganathan, is the counsel on record in A.S.No.207 of 2008, where they have been arrayed as respondents 1 to 9. Some of the respondents is stated to be no more and applications in M.P.Nos. 1, 2 and 3 of 2008 have been filed in A.S.No.207 of 2008 to bring the respective L.Rs. on record. https://hcservices.ecourts.gov.in/hcservices/ 3. Having regard to the nature, the controversy raised and the present status of the property in question, by consent of parties we dispose of both writ petitions as well as appeal by this common judgment. 4. As far as the possession of the property is concerned, from the counter affidavit filed on behalf of the Corporation of Chennai by the Commissioner himself dated 28.2.2008 as stated in paragraph 6 it can be safely held that the possession is very much remains in the hands of the Corporation of Chennai. Further the second respondent in W.P.No.760 of 2007 viz., Tamil Nadu Housing Board, in its counter affidavit has also stated in paragraph 4 that the land in T.S.No.36, Block No.72, situated in XII Avenue, Ashok Nagar, Chennai, with an extent of 10 grounds and 74 sq. ft. which has been shown as Children Play Space in the layout was handed over to the Corporation of Chennai as early as on 17.12.1973 for further maintenance. Therefore, for the limited purpose of ascertaining the status as on this date, we hold that the Corporation of Chennai is in possession and enjoyment of the property in question. 5. Mr.S.M.Loganathan, learned counsel appearing for the respondents 1 to 9 in A.S.No.207 of 2008 contended that as regards the ownership of the land in question the same can be validly determined only in the suit. The learned counsel therefore, contended that since the suit has already been decreed in favour of the said respondents, it will have to be presumed that they are in possession and such possession ought not to be allowed to be disturbed by the Corporation of Chennai. 6. After hearing Mr.C.N.Prghasam, learned counsel appearing for the Corporation of Chennai and after perusing the material papers placed before us, we are not inclined to accede to the submission of learned counsel for the respondents 1 to 9 in A.S.No.207 of 2008. 7. At the out set it will have to be stated that the decree which is under challenge in A.S.No.207 of 2008 is an ex parte decree. Therefore, based on the said decree, it will not be appropriate to straight away come to a conclusion that the respondents 1 to 9 in that appeal should be recognized as owners of the land in question and consequently they are entitled for possession. It is true that in spite of two opportunities extended, the Corporation of Chennai failed to bestow proper care to contest the suit on merits and protect the interest of the property said to have been gifted by the Tamil Nadu Housing Board-the second respondent in W.P.No.760 of 2007. However, on that score itself, we are not inclined to non-suit the Corporation of Chennai in respect of a portion of land that is stated to have been described as Children's Play Space in the layout of Ashok Nagar. Therefore, in the interest of justice and to enable the parties to work out their https://hcservices.ecourts.gov.in/hcservices/ remedies, we feel it appropriate to set aside the ex parte decree and allow the parties to contest the suit on merits before the trial Court. To the said course, which we propose to adopt, learned counsel for the parties also readily agreed. 8. The learned counsel for the parties also submitted that pleadings are complete and that the suit is ripe for trial. Therefore, we allow the appeal A.S.No.207 of 2008 set aside the judgment and decree dated 8.2.2003 passed in O.S.No.1621 of 1992. The parties are relegated to go before the trial Court and contest the suit on merits. Since, twice the Corporation has failed to prosecute the suit properly, we hope and trust the Commissioner of Corporation, Chennai will bestow his best attention to ensure that the suit is contested on merits without giving scope for any default before the trial Court. 9. In the light of the above said orders passed in A.S.No.207 of 2008, no further orders are necessary in W.P.Nos.760 of 2007 as well as 9089 of 2005. Accordingly, both the writ petitions are disposed of. But in the circumstances, there will be no order as to costs. Consequently, connected Miscellaneous Petitions are closed. 10. However, we make it clear that none of the statements contained in this order shall weigh with the learned trial Judge while disposing of the suit on merits. The suit shall be disposed of on its own merits and in accordance with law, based on the pleadings and evidence placed before it. We direct the trial Court, namely the 14th Assistant Judge, City Civil Court, Chennai to dispose of the suit as expeditiously as possible, preferably within a period of six months from the date of receipt of copy of this order. 11. In view of our conclusion that as on date the property in question is in the possession and enjoyment of the first respondent in W.P.No.760 of 2007 viz., the Corporation of Chennai, the said status shall continue to remain till the disposal of the suit. 12. The Corporation of Chennai is also directed to ensure that an extent of land measuring 10 grounds and 74 sq.ft. in T.S.No.36, Block No.72, 12th Avenue, Ashok Nagar, Chennai is protected by putting proper fence/pucca compound wall to rule out any encroachment or interference with its possession. Such erection of fence/compound wall shall not derive any advantage to the Corporation of Chennai to claim title to the property. It is also, open to the Corporation of Chennai to erect certain basic implements https://hcservices.ecourts.gov.in/hcservices/ like swing, see-saw and slide for the children to use the play space as it is stated to have been earmarked for play ground in the layout. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gr. To 1. The Commissioner Corporation of Chennai, Ripon Buildings, Park Town, Chennai-600 003. 2. The Chairman, Tamil Nadu Housing Board, No.33, Anna Salai, Nandanam, Chennai-600 035. 3. The Tahsildar, Mambalam-Guindy Taluk, Chennai-600 078. 4. The Record Keeper VR Section,High Court, Madras 5. The Registrar City Civil Court, Chennai 6. The 14th Assistant Judge, City Civil Court, Chennai 1 cc to Mr.S.M. Loganathan, Advocate, Sr. 32333 1 cc to Mr.L.N. Praghasam. Advocate, Sr. 32483 1 cc to mr.M.s. Ramesh, Advocate, sr. 10867 1 cc to Mr.R. Doraisamy, Advocate, Sr. 32125 W.P.Nos.760 of 2007 and 9089 of 2005 and A.S. No.207 of 2008 and W.P.M.P.No.9874 of 2005 in W.P.No.9089 of 2005 and M.P.Nos.1,2 and 3 of 2008 SSK (CO) kk 2/7 https://hcservices.ecourts.gov.in/hcservices/