C.M.A.(MD) No.1484 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :31.12.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.(MD)No.1484 of 2024
and
C.M.P.(MD)No.15776 of 2024
S.Christoper. ...
Appellant/respondent/defendant
vs.
S.Devarajan. ... Respondent/petitioner/plaintiff
PRAYER: Civil Miscellaneous Appeal is filed under Order XLIII
Rule 1(r) of C.P.C., against the fair order and decreetal order,
dated 16.02.2024 in I.A.No.2 of 2023 in O.S.No.96 of 2017, on the
file of the Additional District Court, Kuzhithurai.
For appellant : Mr.K.N.Thambi
for Mr.G.Cenil
For Respondent : Mr.M.Charles
*****
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C.M.A.(MD) No.1484 of 2024
J U D G M E N T
Having aggrieved by the order passed in I.A.No.2 of 2023 in
O.S.No.96 of 2017, dated 16.02.2024, by the Additional District
Court, Kulithurai, the respondent/defendant therein has preferred
this Civil Miscellaneous Appeal.
2. Devarajan S/o. Savarianantham has filed a suit before the
District Court, Kanyakumari at Nagercoil, in O.S.No.96 of 2017
against Christopher S/o.Sathiyanesan for recovery of money of
Rs.16,96,000/- with interest at 12% p.a.
3. For the sake of convenience, the parties are referred to as
per the litigative status in the suit.
4. The case of the plaintiff is stated in nutshell as follows:
(a) The plaintiff is the owner of rubber garden measuring 8.36
Acres in R.S.No.200 of Kadaiyal Village. Plaintiff and the defendant
entered into an agreement on 16.08.2014 for slaughtering the
rubber trees and tapping latex from the rubber trees in the garden.
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C.M.A.(MD) No.1484 of 2024
The terms and conditions delineated in the agreement are
extracted hereunder:
“(I) Slaughter tapping has to be done in a
phased manner within 3 years and the
defendant has to pay Rs.38,00,000/- (Thirty
eight lakhs) to the plaintiff. Although it was
written in the agreement that the 1st
installment of Rs.15 lakhs was paid on the
date of agreement but the same was not
paid on the date of agreement but the same
was paid on 2 subsequent dates, namely,
an amount of Rs.5,00,000/- was paid on
16.08.2014 and Rs.10 lakhs was paid on
31.08.2014. The 2nd installment of Rs.
13,00,000/- (Rupees thirteen lakhs) was to
be paid on 13.08.2015 and the 3rd
installment of Rs.10,00,000/- (Rupees ten
lakhs) was to be paid on 13.08.2016. The
defendant has no more right except tapping
latex and slaughtering the rubber trees. The
defendant has no right to enter the property
after slaughtering the trees. By not strictly
adhering to the schedule of payment
detailed in the agreement, the agreement
has been frustrated (as the amount due to
the plaintiff has not been paid)”
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C.M.A.(MD) No.1484 of 2024
(b) The defendant paid the first installment of Rs.15,00,000/-
to the plaintiff and tapped latex for a full one year and earned profit
not less than Rs.10,00,000/- to Rs.15,00,000/-. Due to the improper
maintenance of the defendant, 15 rubber tree withered and latex
was not collected from it. The defendant filed Indigent O.P.No.508
of 2015. The plaintiff filed I.A.No.21 of 2016 in the said O.P. for
order of interim injunction restraining the defendant not to interfere
with the plaintiff’s possession and enjoyment of the suit property, in
which interim injunction was granted till the disposal of the pauper
O.P. on 24.07.2016. However, the defendant obstructed the
plaintiff from taking yield from the rubber trees. The remaining a
sum of Rs.13,00,000/- was not paid by the defendant.
As 15 trees withered due to improper maintenance, the plaintiff
incurred loss of Rs.60,000/-. Since the defendant is liable to pay a
sum of Rs.14,10,000/- besides interest at 12% p.a. on Rs.
13,00,000/-, the suit for recovery of money of Rs.16,96,000/- was
filed by the plaintiff.
6. The defendant resisted the claim of the plaintiff in his
written statement and the details are given hereunder:
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C.M.A.(MD) No.1484 of 2024
(a)The plaintiff’s father Sabarianantham purchased the suit
property from a stranger. At the time of execution of
agreement, no permission was granted by the District
Committee as per the provisions of Tamil Nadu Preservation
of Private Forests Act, 1949. Sabariananatham conveyed his
right to the plaintiff without obtaining permission from the
Committee.
(b)It is true that an agreement was entered between the plaintiff
and the defendant and Rs.38,00,000/- was fixed not only for
tapping latex but also for slaughtering the rubber trees. The
plaintiff prevented the defendant from taking yield after one
year and hence, the plaintiff is liable to return 2/3 of the
amount of latex value in Rs.13,00,000/-. No sane man will sell
925 trees for slaughter tapping for three years and to cut and
remove the same for an amount of Rs.38,00,000/-, if the one
year profit from latex is Rs.10 to 15 lakhs. Though the
plaintiff, after giving the trees for slaughtering and removing,
received Rs.15,00,000/-, he tapped latex for two years from
15.08.2015 to till date. The plaintiff could have earned Rs.
30,00,000/-. There is a removal of 125 trees without
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C.M.A.(MD) No.1484 of 2024
permission from the Committee after 15.08.2015. The
defendant has filed a counter claim, claiming an amount of
Rs.3,92,640.66/-, which is payable by the plaintiff.
(c) Meanwhile, the defendant moved an application in I.A.No.366
of 2017 under Order XXXIX Rules 1 and 2 and Section 151 of
C.P.C. for an order of interim injunction against the plaintiff
restraining him from cutting and removing the rubber trees
standing in the suit property till the disposal of the counter
claim. The parties were examined and thereafter, upon
consideration, the Trial Court granted an order of interim
injunction in favour of the defendant by directing the plaintiff
not to cut and remove the rubber trees standing in the suit
property till the disposal of the counter claim.
(d)Thereafter, the plaintiff therein filed another interim
application in I.A.No.2 of 2023 under Order XXXIX Rule 4
and Section 151 of C.P.C. to modify the order passed in
I.A.No.366 of 2017 in O.S.No.96 of 2017 and to grand
permission to the petitioner/plaintiff to cut and remove the old
trees in the schedule of property. It was averred by the
plaintiff that as the order of the interim injunction was granted
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C.M.A.(MD) No.1484 of 2024
in I.A.No.366 of 2017 in favour of the defendant, though the
defendant has not paid the second installment of Rs.
13,00,000/-, the plaintiff was unable to cut the old rubber
trees and replant new rubber plants. It was further averred by
the plaintiff that out of 925 rubber trees, due to the improper
maintenance of the defendant, 56 trees lost its life and due to
'Occi' cyclone, 42 trees were uprooted. As per the report of
the Advocate Commissioner, only 829 rubber trees are
available in the suit property. If these 829 rubber trees are not
cut and removed, as they are old, these trees will
automatically loose its strength and would become value less.
The agreement period is - 16.08.2014 to 15.08.2017. The
agreement was automatically terminated on 13.08.2015, due
to non-payment of second installment. Therefore, the
defendant has no right over the suit property. Hence, it is
necessary to modify the order passed in I.A.No.366 of 2017
and further, the petitioner/plaintiff can apply to the District
Collector for grant of permission to cut the rubber trees in the
suit property.
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C.M.A.(MD) No.1484 of 2024
7. The details of petition filed by the plaintiff are given in brief:
(a)Originally, a suit in O.S.No.96 of 2017 was filed against the
defendant for recovery of second installment amount of
Rs.13,00,000/- along with other amount, totalling a sum of
Rs.16,96,000/- with interest from the defendant. Both entered
into an agreement dated 16.08.2014 for a period of three
years. As per the terms of the agreement, the defendant is
permitted to carry out rubber tapping from the date of
agreement and at the end of the third year, the defendant is
permitted to cut and remove the trees from the suit schedule
property.
(b)It has further been averred in the petition that the defendant
failed to pay the second installment of Rs.13,00,000/- on
13.08.2015, as per the terms of the agreement and despite
repeated requests of the plaintiff, he has continued to tap
latex from the rubber trees owned by the plaintiff.
(c) In order to avoid the payment of the installment, the
defendant filed an indigent suit in P.O.P.No.508 of 2015
dated 02.12.2015 before the District Court, Kanyakumari. As
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C.M.A.(MD) No.1484 of 2024
the plaintiff was not permitted to enter into the suit property,
the plaintiff filed I.A.No.21 of 2016 against the defendant and
his men for an order of injunction and it was ordered in favour
of the plaintiff on 27.04.2016. Thereafter, he was allowed to
enter into his property.
(d)Thereafter, the defendant filed I.A.No.366 of 2017 and an
injunction was granted in favour of the defendant on
21.04.2018 restraining the plaintiff from cutting the rubber
trees till the disposal of the counter claim. As of now, out of
925 rubber tees, due to the improper maintenance of the
defendant, 56 trees are not alive and due to Ocki cyclone, 40
trees got uprooted. As per the report of the Advocate
Commissioner, only 829 old rubber trees are available in the
suit property. If these trees are not cut and remove at this
stage, these trees would automatically loose its strength and
would become worthless. The said respondent entered into a
fraudulent agreement with one Pushparaj, who is not
connected with the subject matter. The said Pushparaj
colluded with the respondent and filed a suit against the
Christopher and two others.
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C.M.A.(MD) No.1484 of 2024
(e)The respondent/petitioner filed a petition before the District
Collector for permission to cut the trees in which the
defendant Christopher referred the injunction order granted in
I.A.No.366 of 2017 and objected his application not to grant
permission to cut and remove the standing trees.
(f) The agreement period is between 16.08.2014 to 16.08.2017.
As the agreement is automatically terminated on 13.08.2015,
the defendant Christopher has no right over the suit property.
It is highly necessary to modify the order in I.A.No.366 of
2017 enabling the petitioner to apply to the District Collector
for grant of permission to cut and remove the rubber trees in
the suit property. If the order passed in I.A.No.366 of 2017 is
not modified to cut and remove the standing rubber trees,
which are in the stage of degradation, he will be put to great
revenue loss. Hence, this petition.
8. The averments of the plaintiff/petitioner was resisted by
filing of the counter stating that the plaintiff did not obtain
permission from the District Collector to cut and remove the trees.
As the defendant was prevented from tapping latex after one year,
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C.M.A.(MD) No.1484 of 2024
the plaintiff is liable to refund 2/3 of Rs.13,00,000/- and Rs.
2,00,000/- which was paid to the District Committee by the
defendant.
9. Upon consideration, the Trial Court allowed the petition on
the following conditions.
1. The petitioner is allowed, on condition that the counter
claim amount of Rs.3,92,640/- is to be deposited in the
Court on or before 15.03.2024.
2. For cutting and removing the old trees from the suit
property, the procedure adumbrated in Tamil Nadu
Preservation of Private Forests Act, 1949 is to be
followed strictly.
3. On failure of the petitioner to comply with the above said
conditions, the order shall stand automatically
cancelled.
10. Against the said order, the defendant/respondent has
preferred this appeal.
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C.M.A.(MD) No.1484 of 2024
11. Heard Mr.K.N.Thambi, learned counsel appearing for the
appellant/respondent/defendant and Mr.M.Charles, learned counsel
appearing for the respondent/petitioner/plaintiff.
12. The learned counsel for the appellant/defendant would
strenuously argue that the plaintiff has suppressed the fact that 925
trees were sold to the defendant for a price of Rs.38,00,000/- and
also for extracting latex for three years. The plaintiff did not obtain
permission from the District Collector to cut the trees. Since the
plaintiff has prevented the defendant from tapping latex after one
year, the plaintiff is liable to refund 2/3 of Rs.13,00,000/-. It is his
further argument that the income of the defendant is blocked for the
last seven years.
13. Per contra, the learned counsel for the
respondent/plaintiff would submit that as the plaintiff and the
defendant entered into the agreement dated 16.08.2014 for three
years. As per the agreement, the defendant has to carry out the
rubber tapping and at the end of three years, he has to cut and
remove the trees in the suit property. He would further contend that
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C.M.A.(MD) No.1484 of 2024
the defendant without paying second installment of Rs.13,00,000/-
on 13.08.2015, was collecting latex from the rubber trees owned by
the plaintiff. Due to the order of injunction granted in I.A.No.366 of
2017 in favour of the defendant, the plaintiff was unable to cut the
old rubber trees and replant new rubber plants. As the defendant
did not pay the second installment, it is necessary to modify the
order passed in I.A.No.366 of 2017.
14. The execution of agreement by the plaintiff and the
defendant is an admitted fact. The agreement period is from
16.08.2014 to 15.08.2017.Out of the agreed amount of Rs.
38,00,000/-, the defendant paid the first installment of Rs.
15,00,000/- to the plaintiff. The second installment of Rs.
13,00,000/- was payable on 13.08.2015 and the third installment of
Rs.10,00,000/- was payable on 13.08.2016 were not paid.
15. The admitted fact is that the first installment of
Rs.15,00,000/- was paid by the defendant. It is relevant to note that
as per the agreement, the plaintiff, who is the owner of the trees,
has to obtain permission from the District Committee under Tamil
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C.M.A.(MD) No.1484 of 2024
Nadu Preservation of Private Forests Act, 1949.
16. It is pertinent to note that on 17.10.2024, permission to
cut and remove the trees was granted as per the proceedings of
the Collector. The agreement period lapsed as early as on
15.08.2017 before seven years.
17. The agreement was entered into between the parties
before 10 years for collecting latex and for cutting and removing the
trees after the work of collection of latex is over. Already it is
delayed by seven years. Hence, the learned Trial Judge may come
to a conclusion as expeditiously as possible, preferably within a
period of seven (7) months from the date of receipt of a copy of this
judgment without being carried away by the observation made by
this Court.
18. With these observations, this Civil Miscellaneous Appeal
stands disposed of. No costs. Consequently, connected
miscellaneous petition is closed.
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C.M.A.(MD) No.1484 of 2024
31.12.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
apd
To
1.The Additional District Judge, Kuzhithurai.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD) No.1484 of 2024
R.KALAIMATHI,J
apd
Pre-delivery order made in
C.M.A.(MD) No.1484 of 2024
31.12.2024
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