AS/233/1990 of THE COMMISSIONER, Vs P.S.NAGARAJAN on 22 December 2005

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.12.2005

CORAM:

THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.MOHAN RAM

A.S.No.233 of 1990

....

The Commissioner,Bhavani Municipality,Bhavani.

vs.

...Appellant/Plaintiff.

P.S.Nagarajan

...Respondent/Defendant.

Appeal filed against the judgment and decree in O.S.No.58 of 1986dated 27.2.1989 on the file of I Additional Subordinate Judge, Erode atPeriyar District.

For appellant : For respondent :

Mr.P.JagadeesanMr.S.ManokaranJUDGMENT

(Delivered by P.D.DINAKARAN,J.)

The plaintiff is the appellant. The plaintiff/Bhavani Municipalityfiled the suit, O.S.No.58 of 1986 claiming a sum of Rs.47,151/- withinterest and costs.

2. The case of the plaintiff, in brief, is as under:- 2.1. The plaintiff Municipality owns two daily markets, besides oneweekly market. The right to collect fees from the vendors and the stall-holders in the markets is being put to auction every year. For the year1981-82, viz., for the period from 1.4.1981 to 31.3.1982, the defendanttook the right to collect fees in the markets in public auction for a bidof Rs.33,050/-.

2.2. When the public auction was to take place for the year 1982-83,the defendant filed a suit in O.S.No.82 of 1982 on the file of DistrictMunsif's Court, Bhavani for injunction restraining the plaintiff herein

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from holding the lease auction and for declaration of his right tocontinue in possession for the year 1982-83. However, the petition filedfor temporary injunction was dismissed by the District Munsif by orderdated 22.2.1982 in I.A.No.215 of 1982 which was challenged in C.M.A.No.10of 1982 on the file of District Court, Erode. The District Court alsodismissed the petition for temporary injunction, I.A.No.275 of 1982,against which C.R.P.No.2149 of 1982 was filed before this Court.Ultimately, the defendant allowed the suit to be dismissed for default.

2.3. Even though temporary injunction was not granted by the Courtsbelow, the defendant was holding the right to collect fees for the year1982-83 and only paid a sum of Rs.33,050/- for the year 1982-83. Sincethe defendant was squatting upon the right to collect fees, the plaintiffMunicipality could not auction the same for the year 1982-83 and hence,the defendant caused loss to the plaintiff. Had the plaintiff auctionedthe right to collect fees for the year 1982-83, it would have receivedRs.80,201/-, because for the year 1983-84 the plaintiff auctioned the sameright for a sum of Rs.80,201/-. The defendant is therefore bound to makegood the loss. The plaintiff issued a notice to which the defendant senta reply with false allegations. Hence, the suit for Rs.47,151/-.

3. The defendant, in his written statement, admitted that he was thesuccessful bidder for the year 1981-82. According to the defendant, theplaintiff did not provide certain amenities as promised resulting in heavyloss to the defendant. Hence, the defendant filed the above suit tomaintain his position for the subsequent year also. The defendant paidthe sum as paid during the previous year, as requested by theCommissioner of the plaintiff Municipality and therefore, the plaintiff isestopped from claiming anything more. The case of the defendant is thatnothing prevented the plaintiff from putting the successful bidder inpossession by taking appropriate action by itself. There was no loss tothe plaintiff as claimed and there is no basis for the claim made by theplaintiff.

4. On the basis of pleadings, the trial Court framed issues and afterconsidering the evidence adduced by the both the parties, the trial Courtdismissed the suit. Aggrieved by the judgment and decree, the plaintiffhas preferred the present appeal.

5. The point for consideration in the appeal is whether the plaintiffis entitled to claim a sum of Rs.47,151/- as claimed?

6. Mr.Jagadeesan, learned counsel for the appellant/ plaintiffsubmitted that the defendant prevented the plaintiff by filing suit fromconducting auction in respect of daily markets as well as weekly marketfor the year 1982-83 and therefore, the loss had occurred to theplaintiff Municipality which the defendant is liable to pay. In supportof his submission, the learned counsel relied upon the documents filed bythe plaintiff, more particularly, Exs.A-8 and A-9.

7. Learned counsel for the respondent/defendant, on the other hand,submitted that in the earlier suit, there was no interim order granted andnothing prevented the plaintiff Municipality from conducting auction forsubsequent years.

8. We have given our careful consideration to the submissions made byboth sides.

9. It is not in dispute that the defendant filed O.S.No.82 of 1982before the District Munsif, Bhavani for declaration of his right tocontinue in possession for the year 1982-83 and for injunction fromholding the auction of the right to collect the fee from the users of themarkets in question for the year 1982-83, but there was no temporaryinjunction granted which made the defendant herein to file C.M.A.No.10 of1982 before the District Court, Erode in which also no interim order waspassed, which again forced the defendant herein to file C.R.P.No.2149 of1982 before this Court. Therefore, as rightly pointed out by the learnedcounsel for the respondent, nothing prevented the plaintiff Municipalityto take steps to auction the markets in question for the subsequent years.

10. Learned counsel for the appellant referred to Exs.A-8 and A-9telegram and letter respectively wherein it was informed that this Courtgranted interim injunction, and submitted that since this Court grantedinterim injunction, the plaintiff could not proceed with the matterfurther. However, P.W.1 in his evidence has stated that there was nointerim injunction after 22.2.1982.

11. The trial Court considered the evidence of P.W.1 and rightlyrecorded a finding that there was no interim order after 22.2.1982 and inspite of the same, the plaintiff did not take any steps to auction themarkets in question for subsequent years. Admittedly, the plaintiffMunicipality received a sum of Rs.33,050/- towards the license fee for theyear 1982-83 without any protest. Further, the claim of the plaintiff isonly a notional loss and it is not the case of the plaintiff that as perthe contract, the defendant has to pay notional loss. Therefore, thetrial Court was correct in holding that the plaintiff is not entitled toclaim any damages from the defendant.

12. The learned counsel for the appellant submitted that no one canenjoy other's property to the detriment to the other and courts arezealous to checkmate such notorious aggrandisement and improper negationof the normal benefits to which the owner of a property would be entitledfrom his tenant and in support of his submission, relied upon the decisionin ANNAVI MOOPAN v. MUNIA MOOPAN (1969) I MLJ 379). We are of the viewthat the ratio laid down in the said decision is not applicable to thefacts of the case as the plaintiff has not taken any steps to auction themarkets in question for subsequent years and also accepted the sum ofRs.33,050/- offered by the defendant without any protest.

13. The learned counsel for the plaintiff submits that initially therewas an interim injunction in favour of the defendant preventing theplaintiff from conducting the auction and as evidenced by Exs.A8 and A9,there was an order of interim injunction against the plaintiff, during thependency of the civil revision petition filed by the defendant herein. Onthat basis, the learned counsel submits that the municipality wasprevented from conducting auction and therefore, the defendant is liablefor damages. This submission of the plaintiff is countered by the learnedcounsel for the defendant by relying upon the admitted fact that thedefendant was permitted to take part in the auction in the subsequentyears by producing the No Objection Certificate/No Due certificate issuedby the plaintiff municipality itself. The fact that the municipality hadissued the No Objection Certificate/No Due Certificate enabling thedefendant to participate in the auction in the subsequent years, accordingto the learned counsel for the defendant, will show that the municipalityhad waived its right to demand any amount from the defendant and as suchthe municipality is estopped from claiming any amount from the defendantstowards any alleged loss. We are of the view that this submission of thelearned counsel for the defendant cannot be brushed aside easily. Whenadmittedly, the interim injunction granted by the trial court as well asthis Court was vacated, the municipality could very well have approachedthe trial court seeking appropriate direction to conduct the auction.But, they failed to do so and allowed the defendant to be in possession ofthe market. Further, the municipality had admittedly issued the NoObjection Certificate/No Due Certificate in the subsequent years whichwill estop the plaintiff from claiming any notional loss from thedefendant. For all these reasons, we are unable to accept the contentionsraised by the learned counsel for the plaintiff.

14. The submission of the learned counsel for the appellant that theplaintiff is a Municipality and in the matter of loss caused to theplaintiff, the larger public interest should be taken into considerationis not acceptable as it is a lapse on the part of the plaintiffMunicipality and the plaintiff, being a local body, should have verifiedwhether any interim order is there or not and proceeded with the matterfurther. The defendant cannot be taxed for the fault of plaintiff.However, it is open to the plaintiff Municipality to realise the amount ofloss from the concerned officials who are at fault including the lawofficer.

For all these reasons mentioned above, we are of the view, the trialCourt was correct in dismissing the suit. We find no merits in theappeal and it is liable to be dismissed. Accordingly, the appeal standsdismissed. No costs.

Sd/-Asst. Registrar.

/true copy/Sub Asst. Registrar.na.To1. The First Additional Subordinate Judge, Erode at Periyar District.2. The Record Keeper, VR Section, High Court, Madras.+ 1 CC to Mr. N.Manoharan, Advocate SR NO 50547+ 1 CC to Mr. P. Jagadeesan, Advocate SR NO 50664A.S.No.233 of 199022.12.2005la(co)gp/3.2.