IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NOS.53 AND 54 OF 2008 and M.P.NOs.1 and 2 of 2008 M.Dhanasekaran .. Appellant in both the appeals (Plaintiff/Respondent) Vs. 1.S.Krishnan 2.Loganathan ..Respondents 1 & 2 in both appeals (Defendants 1 & 2/Applicants 1 & 2) 3.The Sub Registrar, JJ Complex, Anna Nagar, Chennai-40 .. 3rd Respondent in both the appeals (3rd Defendant/2nd Respondent) These OSAs have been preferred under Order XXXVI Rule (11) of the O.S. Rules r/w Clause 15 of the Letters Patent against the order, dated 10.01.2008 passed in A.Nos.8011 and 8012 of 2007 in C.S.No.1007 of 2007. For Appellant : Mr.J.Nandagopal For Respondents: Mr.G.Thangavel for RR1 and 2 No appearance for R3 - - - - COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) By consent of both the counsel, both the Original Side Appeals themselves are taken up for consideration. 2.This judgment shall govern these two appeals, which challenge the common order of the learned Single Judge of this Court made in three applications, namely O.A.No.1261 of 2007 and A.Nos.8011 and 8012 of 2007. https://hcservices.ecourts.gov.in/hcservices/ 3.The Court heard the learned counsel on either side and made a scrutiny of the available materials, in particular the common order under challenge. 4.The Civil suit in C.S.No.1007 of 2007 was filed by the appellant herein, seeking declaration that the sale deed, dated 6.8.2007 was obtained from the plaintiff in favour of the first defendant by fraud, force and coercion and hence it has got to be set aside, along with the consequential relief. 5.At the time of initiation of proceedings, the appellant/plaintiff filed O.A.No.1261 of 2007, seeking interim injunction to restrain the respondents/defendants from dispossessing him from the suit property. The order of status quo was issued and it was in force. While the matter stood thus, the first defendant, on appearance, took two applications one in A.No.8011 of 2007 seeking to vacate the status quo order and also the other one in A.No.8012 of 2007 for interim mandatory injunction, directing the plaintiff to hand over possession of a part of the property, namely the ground floor, which was in his possession. 6.All the three applications were taken up for consideration by the learned Single Judge and by a common order, under challenge, the first application filed by the plaintiff in OA.No.1261 of 2007 was dismissed and A.No.8011 of 2007 was allowed by vacating the status quo order and A.No.8012 of 2007 was ordered, granting interim mandatory injunction, directing the plaintiff to hand over the possession of ground floor to the first defendant, who is the first respondent herein. Under these circumstances, these two appeals have arisen before this court. 7.After hearing the learned counsel on either side and looking into the materials available, the Court is of the considered opinion that without any hesitation whatsoever, the order under challenge has got to be set aside. It is not in controversy that the sale deed was executed by the plaintiff/appellant in favour of the first defendant on 6.8.2007, where the consideration was found as Rs.16,50,000/-. The plaintiff has filed the suit for the relief of declaration, seeking to set it aside on the ground that it was obtained by fraud and is also tainted with invalidating factors as stated above. 8.As could be seen from the available materials, it is an admitted position that the possession of the ground floor was retained by the plaintiff and the possession of the first floor was handed over to the first defendant. The case of the first defendant was that out of the sale consideration, the entire sale consideration was handed over and Rs.1,40,000/- was again handed over by the plaintiff to the first defendant, since he gave an https://hcservices.ecourts.gov.in/hcservices/ undertaking to vacate the ground floor within a period of three months and has also given an undertaking letter. Under these circumstances, the first defendant came forward with those applications, namely A.No.8011 of 2007 to vacate the status quo order and A.No.8012 of 2007 to hand over the possession of the ground floor by the plaintiff to him. Now, at this juncture, the main issue in the civil suit could be whether the sale deed, dated 6.8.2007 is tainted with invalidating factors for granting declaration as sought for by the plaintiff. Actually, it could be decided only on appreciation of evidence to be adduced by the parties, after framing necessary issues. The question that was posed before the learned Single Judge at the time when those applications were taken up for consideration was as to whether status quo order was to be maintained or whether it was a fit case for granting temporary mandatory injunction, directing the plaintiff to hand over the possession of ground floor to the first defendant. 9.The learned Single Judge has pointed out in its order the settled proposition of law. The interim mandatory injunction has got to be granted in a case where a necessity and of extreme hardship is shown and only then, the Court could exercise its jurisdiction to grant such a relief of interim mandatory injunction. It is a matter of surprise to note that after pointing out the settled proposition of law, even without pointing out any reason or the reasons available in the instant case to exercise the jurisdiction, the court has granted the relief, stating that it is a case where it has got to be granted. In the instant case, while it is an admitted position that the first defendant is actually having Rs.1,40,000/- in his hand and the plaintiff is also having possession of the ground floor, the Court is of the considered opinion that in a given case like this, when the plaintiff came forward with the suit seeking declaration that the sale deed is tainted with invalidating factors, as mentioned above, unless and until the question is decided, it would not be fit and proper to exercise the jurisdiction of the court, granting interim mandatory injunction. 10.Under these circumstances, the Court is of the considered opinion that the order passed by the learned Single Judge, granting interim mandatory injunction has got to be vacated and if the order is upheld, it would be more or less giving verdict on the sale deed in question. Hence the court is of the considered opinion that the order of the learned Single Judge has got to be set aside. Accordingly, the order of the learned Single Judge is set aside. The original status quo order is to be maintained. Under these circumstances, it would be fit and proper to require the learned https://hcservices.ecourts.gov.in/hcservices/ Single Judge to dispose of the suit as expeditiously as possible. Accordingly, these appeals are allowed. The parties are to bear their respective costs. Consequently, the connected MPs are closed. vvk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Sub Assistant Registrar, Original Side, High Court, Madras. 1 cc to Mr.J.Nandagopal, Advocate, SR.35790 1 cc to Mr.G.Thangavel, Advocate, SR.35780 ssn (co) dv/17.7. O.S.A.NOS.53 & 54/2008 https://hcservices.ecourts.gov.in/hcservices/