IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.3.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.13003 of 1999 and 1525 of 2006 and S.A.Nos.609 and 630 of 2005 and connected MPs. St.Joseph's Charity Trust, rep. by its Chairman J.Nagakesari, running St.Joseph's Matriculation School Teacher's Guildy Colony, Chennai-600 049. .. Petitioner in W.P. No.13003 of 1999 1. K.Deivasagayam (deceased) 2. D.Kirubanayagam 3. D.S.Jamesnayagam 4. D.Inbanayagam 5. D.Selvanayagam 6. D.Jeevanayagam 7. A.Santhoshrani 8. B.Bala Bhaskar 9. Hemachoma .. Petitioners in W.P. (P2 to P9 impleaded as LRs of the No.1525 of 2006 deceased first petitioner vide order dated 10.4.2008 in M.P.No.2870 of 2007 in W.P.No.1525 of 2005) 1. St.Joseph's Charity Trust by its Secretary M.D.Jabamani, having office at No.4, Ganapathy Nagar, Kolathur, Chennai-600 049. 2. St.Joseph's Matriculation School, rep.by its Secretary having its office at Teachers' Guild Colony, Chennai-49. ... Appellants in SA. Nos.609 & 630 of 2005 (Plaintiff) -vs- 1. State of Tamil Nadu, rep.by its Secretary, Education Department, Fort St.George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director of School Education, Chennai-600 006. 3. Deivasagayam .. Respondents in (R3 impleaded as per order of court W.P.No.13003 of 1999 dated 05.1.2000 in WMP.21057/1999) 1. The Chairman, Tamil Nadu Electricity Board, Chennai-2. 2. The Assistant Executive Engineer, O & M, M.E.D.C./North, 33/11, K.V.I.C.Substation, Villivakkam, Chennai-49. 3. St.Joseph's Charity Trust, rep.by its Secretary M.D.Jabamani, No.8, 1st Street, Teachers' Guild Colony, Chennai-99. 4. St.Joseph's Matriculation School, rep.by its Secretary M.D.Jabamani ... Respondents in W.P. No.1525 of 2006 1. K.Deivasagayam (deceased) 2. A.C.Benjamin 3. D.Kirubanayagam 4. D.S.Jamesnayagam 5. D.Inbanayagam 6. D.Selvanayagam 7. D.Jeevanayagam 8. A.Santhoshrani 9. B.Bala Bhaskar 10.Hemachoma .. Respondents in S.A. (R.3 to R.10 impleaded as LRs Nos.609 & 630 of 2005 of the deceased first respondent vide order dt.10.4.2008 made in CMP.Nos.3544 to 3549/2007) PRAYER in W.P.No.13003 of 1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records relating to the proceedings of the second respondent bearing Na.Ka.No. 123668/E1/96, dated 02.7.1999 and quash the same. PRAYER in W.P.No.1525 of 2006: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents one and two to disconnect the https://hcservices.ecourts.gov.in/hcservices/ electricity supply given to the respondents three and four to the Premises No.8, First Street, Teachers' Guild Colony, Chennai-99 comprised inS.Nos.181/4, 192/2B, 193/4 situated at No.71, Konnur Village, Perambur Purasawalkam Taluk, Chennai District. PRAYER in S.A.Nos.609 and 630 of 2005 : Appeals against the order dated 16.3.2004 passed by the Additional District Judge, Fast Track Court-V, Chennai in A.S.Nos.242 and 243 of 2002 reversing the judgment and decree in O.S.Nos.11546 and 11165 of 1996 dated 26.9.2000 passed by V Assistant City Civil Court, Chennai. For petitioner : Mr.S.Parthasarathy, SC for Mr.J.Ramakrishnan Mr.S.Jaganathan and Mr.K.Thangavelu For respondents : Mr.Suresh, GA (Edn.) Mr.J.Saravanakumar (R4 to R11) in WP.13003 of 1999 Mr.R.Elango for R2 in SA609/2005 Mr.S.V.Jayaraman, SC for Mrs.G.Thilagavathi (R3 to R10) in SA.609 of 2005 Mr.N.Damodaran (R3 & R4) Mr.Sekar (R1 and R2) in W.P.No. 1525 of 2006 O R D E R These two writ petitions and the two second appeals were specially ordered to be posted before this Court by the orders of the Hon'ble Chief Justice dated 24.10.2008. 2. In W.P.No.13003 of 1999, the petitioner is the St.Joseph's Charity Trust represented by its Chairman running a school in the name of St.Joseph's Matriculation School. The challenge in the said writ petition was to the order dated 02.7.1999 passed by the second respondent - Director of School Education in refusing to reconsider their earlier decision in granting permission to start classes from I to VIII in St.Joseph's Matriculation School. This was on the ground that the dispute over the land in which the school was situated had not reached its finality and, therefore, the cancellation of permission will continue to be in force. The writ petition was admitted on 07.9.1999. Pending the writ petition, an interim-stay was granted which was subsequently extended from time to time. 3. W.P.No.1525 of 2006 was filed by K.Deivasagayam (since deceased) seeking for a prayer to the Tamil Nadu Electricity Board to suspend the electricity connection given to respondents 3 and 4 in their premises at No.8, First Street, Teachers' Guild Colony, https://hcservices.ecourts.gov.in/hcservices/ Chennai-99, situated in Survey No.181/4, 193/2B, 193/4 at No.71, Konnur Village, Perambur- Purasawalkam Taluk, Chennai. This writ petition was admitted on 03.3.2006. This was primarily filed on the ground that the petitioner in the writ petition was the owner of the premises of the land and the respondents therein are running the school without the consent of the owner. However, the prayer for interim relief was rejected by this Court by an order dated 03.3.2006. It was held that unless the petitioner succeeds, his prayer cannot be granted. Further, it was stated that such disconnection of electricity will affect the running of the school and that the second appeals over the ownership of the land are pending before this Court. 4. On notice from this Court, a counter affidavit has been filed by the contesting respondents in the writ petition. Since the writ petitioner in W.P.No.1525 of 2006 K.Deivasagayam died, his legal representatives have been brought on record. 5. The petitioner in W.P.No.13003 of 1999 also filed a suit in O.S.No.11165 of 1992 before the V Assistant City Civil Judge, Chennai to restrain the defendants in the suit that the defendants and their agents should not interfere with the peaceful enjoyment of the suit property. 6. Subsequently, another suit in O.S.No.11546 of 1996 was also filed by the same petitioner seeking for specific performance directing the defendants to accept Rs.1.5 lakhs and to direct the first defendant to execute a sale deed, failing which, the Civil Court should direct the registration of the sale deed. 7. These suits were tried by the trial Court and were decreed in favour of the plaintiff (the petitioner in the first writ petition) by a judgment and decree dated 26.9.2000. As against the said judgment and decree, K.Deivasagayam filed two appeals being A.S.No.242 of 2002 and A.S.No.243 of 2002 which were finally heard by the Fast Track Court – V, Chennai. The lower Appellate Court allowed both the appeals together with costs. It is as against these two orders of the lower appellate Court, the two Second Appeals have been filed. The Second Appeals were admitted on 24.6.2005 and an interim injunction was also granted by this Court. 8. It was agreed by the learned counsel for both sides that the disposal of the two Second Appeals will also determine the outcome of the two writ petitions referred to above. 9. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellant submitted that one M/s.Dulsi Kesari started a Charitable Trust pursuant to a Trust Deed dated 28.5.1992 which was registered as Document No.564 of 1992. The Founder of the Trust formed a School Committee with Jayaseelan Naga Kesari as the Chairman, Edward Sam as https://hcservices.ecourts.gov.in/hcservices/ its Secretary and A.C.Benjamin (second defendant) as its Treasurer. It was stated that the original defendant offered to sell 10 grounds and 220 sq.ft. for running the school and the appellants had agreed to purchase the said land for a total consideration of Rs.2 lakhs. On 14.6.1992, the School Committee along with the defendants assembled at the suit property for a foundation stone laying function. As per the oral agreement, the first defendant delivered possession of the entire suit property. On 15.6.1992, the appellant started the construction of the school building. It is also stated that a sale consideration of Rs.2 lakhs was paid by post-dated cheques on 14.7.1992. This included Rs.50,000/- on 14.7.1992, Rs.50,000/- on 22.7.1992 and the balance Rs.1 lakh on 22.8.1992. The first defendant after receiving the cheque dated 14.7.1992 demanded the amounts in cash. In the meanwhile, the appellant completed the construction work and started running the school from 15.7.1992. The first defendant presided over the inaugural function and his family members also participated in the function. Even when the appellants were attempting to pay cash, the first defendant had received three separate cheques for Rs.50,000/- from D.Jebamani, Veerakesari and Albert without returning the earlier two cheques with the value of Rs.1,50,000/-. 10. Thus according to the learned Senior Counsel, the appellant/plaintiff had performed his part of the oral agreement. Since the earlier cheques given to the first defendant were not cleared through bank, the Trust Secretary wrote a letter to the first defendant on 21.10.1992. Though the letter was received by the first defendant, he did not give any reply. On the contrary, his son wrote a letter to contact the first defendant for which the Secretary again wrote a letter to meet them at their school premises on 01.11.1992. Once again the first defendant did not give any reply. Therefore, the appellant sent a registered letter dated 01.12.1992 to execute the sale deed. The first defendant having received the letter, had not executed the sale deed. It was also stated that the second defendant since he had misappropriated amounts belonging to the Committee's fund, he was dismissed from service. As the first and second defendants were colluding and are attempting to demolish the school building, the suits were filed for the respective reliefs. 11. Per contra, Mr.S.V.Jayaraman, learned Senior Counsel appearing for Mrs.G.Thilagavathi for respondents/defendants submits that the appellant's case was a false case. There was no offer to sell 10 grounds and 220 sq.ft. for a sum of Rs.2 lakhs. No vacant possession was given on 14.6.1992 and no construction was started on 15.6.1992. In fact, only during the end of April 1992, M/s.Jayaseelan Naga Kesari, A.C.Benjamin, Edward Sam, P.Henri Johnson and C.Albert Raj approached his client and requested him to sell 3 grounds and 1560 sq.ft. The first defendant had agreed to sell it for a total consideration of Rs.6,20,000/-. On 03.5.1992, a written agreement was entered and it was signed by M/s.A.C.Benjamin and Henri Johnson. A https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.20,000/- was paid as initial advance. It was further stated that the further advance of Rs.2 lakhs will be paid to the Trust. Further that the entire sale consideration should be paid on or before 02.12.1992. Possession was agreed to be handed over on the date of execution of the sale deed. It was only during the first week of June, the first defendant was informed that a Charity Trust was formed in the name of M/s.Dulsi Kesari on 14.6.1992. His client's participation in the function was with a christian spirit. On 14.7.1992, three cheques were issued and the first defendant had promised to renew the agreement of sale after the realisation of the cheques. While the first cheque was honoured, the remaining two cheques were returned unpaid. The other allegations to the contrary made by the appellant were denied. The allegation that his clients had received three more cheques from others was also denied. The existence of oral agreement was also denied. The first defendant had emphatically stated that the possession was not handed over to the appellant. The second defendant had also more or less supported the stand of the first defendant. 12. The first suit was filed only to prevent the defendants from interfering with the possession. The second suit was for specific performance. The learned Senior Counsel appearing for the appellant submitted that the readiness and willingness on the part of the appellant was not disputed. There was no justification in overturning the finding recorded by the trial Court regarding issue No.3 with reference to the existence of an oral agreement. The trial Court also found that a portion of the sale agreement was also executed wherein it is stated that even before the receipt of Rs.50,000/-, possession was handed over on 14.6.1992. After the construction was done on 15.7.1992, the school was reopened. Therefore, he pleaded that the judgment and decree of the lower appellate court in reversing the trial Court's findings must be set aside. 13. Per contra, Mr.S.V.Jayaraman, learned Senior Counsel appearing for Mrs.G.Thilagavathi, submitted that in a suit for specific performance, it is the party which comes to the Court will have to establish their bona fides and also that the other party was not ready and willing to perform their part of the obligation. Under section 64 of the Limitation Act, the period of limitation for filing a suit for specific performance was three years. In the present case, the bare injunction suit was filed during 1992. The cause of action as found in the plaint showed that it arose on 14.6.1992, the day on which the alleged oral agreement of sale was entered into. Therefore, the limitation for filing such a suit does not exist beyond 13.6.1995. The second suit for specific performance was filed only in the year 1996. Therefore, as found by the lower appellate Court, on the ground of limitation, the second suit is liable to be rejected. In para 13 of the written statement, this objection was raised by the first defendant. https://hcservices.ecourts.gov.in/hcservices/ 14. It was also denied that there was any oral agreement for sale. Only a written agreement for sale was entered into by the defendant. This written agreement dated 31.6.1992 was signed by A.C.Benjamin and P.Henri Johnson. Even the receipt of so called sale consideration was denied. 15. The learned Senior Counsel also placed reliance upon the judgment of this Court reported in 2007 (1) CTC 243 (G.Ramalingam -vs- T.Vijayarangam). It was stated that it is for the plaintiff to establish continuous readiness and willingness at all stages right from the date of agreement till the date of hearing of the suit in order to become entitled to a decree for specific performance. Even if for a single day, the plaintiff agreement holder is not ready to take the sale deed, equitable remedy should not be granted. Therefore, in this case, not only there was no oral agreement but even the consideration was not passed on as alleged by the appellant/plaintiff. It was found out that the cheques given by them was bounced for want of funds and the Trust had no funds. The lower appellate Court had considered the overall evidence and came to the conclusion that the oral agreement was not proved. 16. In reply, Mr.S.Parthasarathy, learned Senior Counsel for the appellant submitted that the so called written agreement pleaded by the defendants was not produced and proved. After referring to para 9 of the written statement, the learned Senior Counsel by way of an alternative plea mentioned that since the first defendant had himself agreed to part with 3 grounds 1560 sq.ft. the parties may be allowed to work out the acquisition of that portion of the land in such a way that the existing school premises will not be disturbed. The matter was adjourned for working out a compromise, but no compromise was possible. Therefore, this Court is not inclined to go into the alternative prayer made by the counsel for the appellant as the issue emanates from a suit and it will have to be determined on the basis of the issues framed already. 17. Mr.S.V.Jayaraman, learned Senior Counsel also placed reliance upon the judgment of this Court reported in 1996 TNLJ 358 in a case relating to V.C.Siddha Chetty and others -vs- Govindappa Naidu. This was to emphasis that if the plaintiff failed to establish that he was ready and willing to perform his part of the contract he is not entitled for the discretionary relief of specific performance. 18. He also placed reliance upon the judgment of the Division Bench in Kumari Anandan -vs- Dr.T.Balamukunda Rao (died) and three others reported in 2002 (3) CTC 462. This is for the purpose of showing that a plaintiff who seeks to enforce the oral agreement between the plaintiff and the defendant for sale of property must prove his case and cannot rely upon the discrepancies in the case of the defendant to get necessary relief. In fact in that judgment the Court had gone to the extent of saying that the falsity of the https://hcservices.ecourts.gov.in/hcservices/ defendant's case does not lead to an inference of the plaintiff's case being proved. The case of the plaintiff must stand or fall on its own merits de hors the inherent weakness in the case of the defendant. 19. The learned counsel also referred to the judgment of the Patna High Court in Badru Nisha -vs- Yogendra Prasad Sinha reported in AIR 2006 Patna 71. In para 14 of the said judgment it is stated that the High Court while exercising its power under section 100 of the CPC cannot re-appreciate the evidence and set aside the findings of facts recorded by the first appellate Court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse and based on misreading of evidence or based on no evidence. 20. In the present case, a careful perusal of the judgment of the lower appellate Court in paragraph 19 shows that the lower appellate Court held that there is no certainty in the area agreed to be sold which will be one more factor to prove the improbability of the circumstances about the alleged oral agreement. In paragraph 21, the lower appellate Court held that the plaintiffs have not adduced proper evidence for entertaining a suit for specific performance and since the suit for specific performance is an equitable relief, the same cannot be granted to the appellant. Even on the question of handing over of the property pursuant to the oral agreement, the trial Court found in para 23 that no possession was delivered. In para 25 it also held that the offer of post-dated cheques would betray the case of the appellant/plaintiff and will show that they were not ready and willing to perform their part of the contract. It was also found that the trust never had resources to buy the property as found in para 26. The suit notice issued by the plaintiff (Ex.A.75) did not contain any date for the so-called oral agreement. The plaintiff also failed to prove their right to possession of the property as they are not the agreement holders and hence they are also not eligible for any injunction as sought for in the first suit. If the documents in Exs.A.8 to A.13 and Exs.A.54 to A.68 are ignored, there is no other document to show that there was any oral agreement between the parties. The further finding in para 30 that the second suit was barred by Order 2 Rule 2 CPC also cannot be dislodged by this Court. Once it is held that the so-called oral agreement dated 14.6.1992 does not exist, then the entire edifice of the case built by the appellant/plaintiff had to necessarily fall. This Court exercising jurisdiction under section 100, CPC is not willing to hold that the lower appellate Court's judgment is illegal or liable for interference in these Second Appeals. 21. In the light of the above, both the Second Appeals will stand dismissed with costs and the counsel fee quantified at Rs.5000/-. All the interim applications will stand closed. https://hcservices.ecourts.gov.in/hcservices/ 22. Once the two second appeals are dismissed, the first writ petition challenging the order of the Director of School Education holding that until the controversy of the suit land is determined, approval granted will be revoked to run the school is perfectly valid. One of the prior requirements for establishing a private school or a matriculation school is a clear ownership of the land in which the school building must stand. Therefore, the Director was correct in stating that pending the suit no permission can be granted. In any event, now that in the two Second Appeals, the petitioner has failed to prove the ownership of the land, the impugned order in the first writ petition cannot be set aside. Hence, W.P.No.13003 of 1999 will stand dismissed. No costs. WPMP stands closed. 23. In the writ petition (W.P.No.1525 of 2006) which is filed by the original defendant seeking to cut off electricity and water supply to the premises in the suit land, it is directed that on the strength of the judgments in the two Second Appeals as well as in the first Writ Petition, if the petitioner in W.P.No.1525 of 2006 addresses to the TNEB authorities, the concerned authority will pass orders on the basis of the request made by the defendant/writ petitioner within a period of two months from the date of receipt of a copy of this order on merits and communicate the result to the parties. The second writ petition is disposed of to the extent indicated above. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. js To 1. The Secretary to Government, Education Department, Fort St.George, Chennai-600 009. 2. The Director of School Education, Chennai-600 006. 3. The Chairman, Tamil Nadu Electricity Board, Chennai-2. 4. The Assistant Executive Engineer, O & M, M.E.D.C./North, 33/11, K.V.I.C.Substation, Villivakkam, Chennai-49. https://hcservices.ecourts.gov.in/hcservices/ 5. The Additional District Judge, Fast Track Court V, Chennai. 6. The V Assistant City Civil Court at Chennai. 7. The Registrar, City Civil Court, Madras. + 2 CC to M/s.G.Thilakavathi,Advocate,SR.7520,7570 + 4 CC to Mr.S.Jaganathan,Advocate,SR.1458 W.P.Nos.13003 of 1999 & 1525 of 2006 and S.A.Nos.609 and 630 of 2005 MBS(CO) EM/14.3.09 https://hcservices.ecourts.gov.in/hcservices/