S. Ramasamy v. V. Ranganayaki — 1998 DIGILAW 1678 (MAD)

Judgment :- 1. Since caveat was entered by respondents 1 and 2 (plaintiffs), when the revision came-up for admission, by consent of both parties, the entire Revision was heard. 2. Second defendant in O.S. No. 6673 of 1998, on the file of XVIII the Assistant Judge, City Civil Court, Madras, is the revision petitioner. The Revision is filed under Art. 227 of the Constitution of India. 3. Plaintiffs, who are respondents 1 and 2 in this Revision; filed the suit for injunction restraining the defendants, their men, servants or agents from in any way interfering with the plaintiffs peaceful possession and enjoyment of the plaint schedule properties. The property is 46 cents of land situated in Survey No. 150 in Koyambedu Village,, Madras. It is alleged in the plaint that the property originally belonged to late Duraisamy Naidu, father of plaintiffs, and it was inherited by him by way of family arrangement between himself and his brother Iyyavu Naidu. It is also said that the suit property was purchased by plaintiffs father on 5.9.1934 from one G. Venkatapathi Naidu. Ever since the date of purchase, plaintiffs and their father were in possession of the property. The total extent of the disputed land is 49 cents, and a small thatched shed is also situated therein. It is also said that one Rathinarn, first defendants father, attempted: to trespass into the property, and it necessitated the filing of a suit as O.S. No. 530 of 1969. An ex parte decree was granted. Duraisami Naidu died on 7.7.1973, and thereafter plaintiffs have inherited the property as his legal heirs. Reason for filing the present suit is, that defendants 2 to 5 attempted to trespass into the suit property in the month of July 1998 about which police complaint was given. Again, in September 1998, there was another attempt, with the help of, first defendant, and they tried to demolish the compound wall and enter into the property. The same was also prevented. It is said that neither first defendant, nor defendants 2 to 5 have right, title or interest over any portion of the suit property, and plaintiffs father was the absolute owner of the suit property, and after his death, plaintiffs have inherited the suit property as his legal heirs.. 4. Cause of action for the suit is said to have arisen in July. 4. Cause of action for the suit is said to have arisen in July. 1998 when first defendant made an attempt to trespass into; the, suit property and on 24.8.1998 when they (defendants) tried to demolish the compound wall of the suit property and a police complaint was given regarding the same. 5. Along with the plaint, the following documents were filed:—(1) Sale deed dated 5.9.1934 in respect of suit property; (2) Decree in O.S. 530/69 dated 30.11.1970;(3) Legal Heir Certificate dated 3.8.1993 issued by Tahsildar and (4) Receipt dated 18.8.1997 for payment of Urban Land Tax. Along with the suit,. plaintiffs filed I.A. 15598 of 1998 for ad-interim injunction. 6. The lower Court, on 8.10.1998, passed an ad-interim injunction till 22.10.1998. On that day, second defendant, i.e. , petitioner herein, filed his counter. The matter was adjourned for enquiry to 26.10.1998. Interim order was also extended. On 26.10.1998, 27.10.1998 and 28.10.1998, the case was not taken up, but interim order was extended. On 28.10.1998, it was represented before Court that first defendant was no more, and, for filing an impleading petition, the matter was again adjourned, and from that date, to 29.10.1998 and 30.10.1998. On 30.10.1998, Exx. B-1 to B-22 and Exx. C-1 and C-2 were marked, and the petit ion was adjourned to 2.11.1998. The interim order was also extended. On 2.11.1998, on the petitioners side, Exx. A-1 to A-6 were marked. For reply, the matter was adjourned to 3.11.1998. The interim order was extended. On 3.11.1998, the case was adjourned to 5.11.1998, and interim order was extended. On 5.11.1998, reply argument was advanced, and the matter was posted to 16.11.1998., Interim order was extended. On 16.11.1998, an application for re—opening the matter (i.e. , I.A. 18383/98) was filed. Hence the case was posted to 17.11.1998, and interim order was extended. On 17.11.98, it was adjourned to 23.11.1998, on which date I.A. 18383/98 was allowed and the matter was again adjourned to 24.11.1998 on the request of the petitioner herein, since he wanted to move a Revision before this Court against the procedure adopted by the lower Court. 7. In the counter statement filed by petitioner herein, he has said that he is in possession of 16 cents of land out of 46 cents of land and this 16 cents forms part of Survey No. 149 which is situated on the northern side. 7. In the counter statement filed by petitioner herein, he has said that he is in possession of 16 cents of land out of 46 cents of land and this 16 cents forms part of Survey No. 149 which is situated on the northern side. According to petitioner, this Survey No. 149 Part and 16 cents in Survey No. 150 are lying as one block and the same originally belonged to one Singarammal who obtained a sale deed in 1969. The possession of Singarammal was also recognised by the Government. It is said that these 16 cents are really a Government poramboke land and even proceedings were initiated against Singarammal under Section 7 of the Tamil Nadu Act 3 of 1905. On the death of Singarammal, the right devolved on her son Velayutham and other legal heirs, and all of them executed sale deeds in favour of second defendant and others in the year 1997. It is also said that the plaintiff has suppressed material facts. As early as in 1996, the very same plaintiff has filed a suit as O.S. 1973 of 1996 for the very same relief against the first defendant - Velayutham, the vendor of petitioners and few others, for permanent injunction restraining them from interfering with their possession. In that suit, no injunction was granted, though an application was moved for that purpose. In the present suit, there is no statement about the filing of the earlier suit and the refusal of the Court to grant an interim order. On the basis of the title they also put up a compound wall around the property which includes 16 cents in Survey No. 150. On the basis of the ad-interim order, even the compound wall has been demolished by plaintiffs, taking advantage of the holidays. It is said that the decree in O.S. 530 of 1969 has no relevance, and in the present suit, no reliance could be placed on an ex parte decree. After the ad-interim injunction, plaintiffs attempted to interfere with the possession. Complaint to the local police was of no avail. It is also said that even though the Court directed compliance of provisions of Rule of Order 39 C.P.C., it was not done. 8. Along with the counter, he also moved an application for appointment of a Commissioner. The lower Court allowed the same, and an advocate-Commissioner, after inspection, filed a Report. It is also said that even though the Court directed compliance of provisions of Rule of Order 39 C.P.C., it was not done. 8. Along with the counter, he also moved an application for appointment of a Commissioner. The lower Court allowed the same, and an advocate-Commissioner, after inspection, filed a Report. It could be seen from the proceedings of the lower Court, relevant portion of which is already extracted, it is clear that it heard the matter for some time. But, without recording reasons, the interim order was being extended from time to time. In fact, when the case was posted for orders on 16.11.98, an application was filed by plaintiffs to reopen the same and that was also allowed a week thereafter. The interim order was also extended again. It is this procedure that is challenged by the revision petitioner in this case, along with the order in I.A. to reopen the case. 9. In the counter-affidavit filed by respondents/plaintiffs, it is said mat there is no jurisdictional error. The first order of the Court below granting injunction was a speaking order. That apart, when the petitioner herein himself has participated in the proceedings before the lower Court and has also argued the matter, jurisdictional error which is only procedural, cannot be complained. It is further said that the Court below is justified in admitting a document, which it is competent to do. It is not a question of lack of jurisdiction. 10. I heard learned counsel for both parties in detail. 11. Before going to the factual aspects of the case, I have to consider the scope of Order 39, Rule 3-A of the Code of Civil Procedure. Rule 3-A was inserted by Amendment Act of 1976. The; purpose for incorporating the said Rule is two-fold. The power of the Court to pass ex parte order of injunction is not to be curtailed. But at the same time, person against whom the order is issued, should not also feel that the hearing of the case is not to be delayed, and he must be given, an opportunity to have the order vacated or varied at the earliest point of time. The Report of the Joint Committee as published in the Gazette of India dated 1.4.1976 is relevant. The Report of the Joint Committee as published in the Gazette of India dated 1.4.1976 is relevant. The same reads thus:— “The Committee were informed that once an order for a temporary injunction is obtained by a party, he does not show any anxiety to expedite the disposal of the suit and, consequently, the injunction continues for an inordinately long period. The continue of the injunction for a long period may not only cause hardship to the litigants but may also have the effect of holding up many of the welfare projects undertaken by the Government. In the circumstances it was provided in the Bill that a temporary injunction should not ordinarily remain in force for a period of more than thirty days, but the duration of the injunction could be extended to forty-five days with the consent of the opposite party, and that no extension beyond the period of forty-five days will be permissible. The Committee feel that it would be difficult to obtain the consent of the opposite party for the extension of the time— limit. Accordingly, the provision for such extension of the time limit with the consent of the opposite party does not appear to be a practicable one. Further, the imposition of a rigid time, limit may also lead to difficulties because occasions may arise when the Court may not, for want of time be able to dispose of the application for temporary injunction before the expiry of thirty days from the date on which the ad-interim injunction was granted. The Committee, however, feel that in order to avoid delay in the disposal of suits, it, should be made obligatory on the part of the Court to dispose of the application of injunction within thirty days from the date on which the ad-interim injunction was granted by it; and where it is not practicable to do so, the Court should be required to record its reasons for such inability . The proposed new rule 3-A of Order XXXIX has been amended accordingly”. (Emphasis supplied) 12. Mulla on Civil Procedure Code - 15th Edition (1997), commenting on Rule 3-A, has stated thus:— “Rule- 3-A has been inserted by the Amendment Act 1976. The proposed new rule 3-A of Order XXXIX has been amended accordingly”. (Emphasis supplied) 12. Mulla on Civil Procedure Code - 15th Edition (1997), commenting on Rule 3-A, has stated thus:— “Rule- 3-A has been inserted by the Amendment Act 1976. This Rule has been inserted to ensure that while the power to issue ex parte injunction is not curtailed because the exercise of such power, in urgent eases, is needed, there is a time limit with regard to the duration of such ex parte injunction. If the Court is unable to dispose of the application within this period of 30 days, it is obligatory for it to record its reasons for its inability to do so ” (Emphasis supplied) 13. How the power is to be exercised while granting ad-interim injunction has been dealt with by the Honourable Supreme Court as well as by this Court in several cases. A special direction has also been given by their Lordships of the Honourable Supreme Court in the decision reported in (1993) 3 SCC 161 (Shiv Kumar Chadha v. Municipal Corporation of Delhi) wherein, in para 34, it has been held thus:— “The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said “the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party”. The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court “shall record the reasons” why an ex parte order of injunction was being passed in the facts and circumstances of the particular case. In this background, the requirement of recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. The condition so introduced is that the Court “shall record the reasons” why an ex parte order of injunction was being passed in the facts and circumstances of the particular case. In this background, the requirement of recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. The requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the Proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and the Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them In respect of some of such provisions it has been held that they are required to be complied with but noncompliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstance. Such ex parte orders have far-reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all . This principle was approved and accepted in well-known cases of Taylorv. Taylor and Mazir Ahmed v. Emperor. Proviso to Rule 3 of Order 39 of the Code attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all . This principle was approved and accepted in well-known cases of Taylorv. Taylor and Mazir Ahmed v. Emperor. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare” (Emphasis supplied) The principle enunciated therein also will have to be followed in cases coming under Order 39, Rule 3-A, C.P.C. The Court below is bound to record its reasons in writing, why it could not dispose of the interlocutory application, and why it is extending the interim order. If a Statute requires a thing to be done in a particular manner, it should be done only in that manner, or not at all. If the lower Court has not recorded the reasons why it could not dispose of the ad-interim injunction petition, it should not extend the interim order. Merely extending the order without recording reasons would amount to violation of Order 39 Rule 3 as well as 3-A. It will be a patent illegality. Even though the original order was for a period, extending the order from time to time will amount to granting the interim order itself without any time limit. That will be a statutory violation, and any order passed will be one without jurisdiction. In this case, on the first day itself, the respondent entered appearance and filed counter. Even though 30 days have not lapsed on that day, before extending the order, petitioner is entitled to be heard, for, that will amount to passing an interim order without hearing the petitioner, though he filed his counter. 14. At this juncture, learned Counsel for petitioner also brought to my notice the very interim order passed by the lower Court on 8.10.1998, which is being extended from time to time. Except stating that the petitioners therein have got title and possession, reason for granting an urgent relief in the nature of ad-interim injunction is not stated. While granting ad-interim order, Court must record a finding not only regarding prima facie case but also regarding balance of convenience and relative hardship. Except stating that the petitioners therein have got title and possession, reason for granting an urgent relief in the nature of ad-interim injunction is not stated. While granting ad-interim order, Court must record a finding not only regarding prima facie case but also regarding balance of convenience and relative hardship. There is no finding on any of these statutory ingredients. When the first order itself violates the statutory provisions, extending the same even after filing a counter, was a patent illegality committed by the lower Court. 15. I have already said regarding the documents filed along with the suit. In the plaint, it is said that the suit property was purchased by plaintiffs father on 5.9.1934. In fact, that statement is patently incorrect. That could be seen from the counter affidavit filed by the respondents in this Revision. The sale deed dated 5.9.1934 was in favour of one Iyyavu Naidu, who is the paternal uncle of the plaintiffs. The original owner of the property was one Venkatapathi Naidu, who executed a sale deed for himself and his sons in favour of one Iyyavu Naidu on 5.9.1934. It was this document that was filed along with the suit. In para 1 of the plaint, the first sentence says that the same was inherited by late Doraisami Naidu by family arrangement between himself and his brother Iyyavu Naidu. Thereafter, it is said that the property was purchased by the late father on 5.9.1934. Both these statements cannot go together, and the document dated 5.9,1934 is also not in favour of the plaintiffs father. The family settlement deed was also not filed along with the plaint. Even though such a settlement deed is referred to in the list of documents, the same is also scored off. The only other document on which reliance could be placed was an ex parte decree in O.S. 530 of 1969. On the basis of these documents, it cannot be said that the plaintiffs have got title or possession. When an ex parte order of injunction is granted, naturally, there must be a finding that the Court is satisfied that on the basis of available materials, a case has been made out for the grant of injunction. On the basis of these documents, it cannot be said that the plaintiffs have got title or possession. When an ex parte order of injunction is granted, naturally, there must be a finding that the Court is satisfied that on the basis of available materials, a case has been made out for the grant of injunction. When this defect was pointed out in the course of argument and the matter was taken up for final disposal on the injunction application, an application was filed to reopen the same on 16.11.1998. The lower Court was gracious enough to reopen the matter. But at the same time, it also extended the interim order. Even though the Court below might have jurisdiction to reopen the case, for extending the interim order, there is no justifying reason. Once it is found that the earlier ex parte order of injunction cannot stand, extending the same, will only amount to perpetuating the illegality. It is at this juncture, learned Counsel for respondents submitted that the petitioner himself has acquiesced to the procedure followed by the lower Court, by participating in the proceedings, and also by filing an application for appointment of a Commissioner and also by getting a Report and also by marking documents. I do not think that the argument of learned counsel could be accepted. According to me, the participation of the petitioner in the proceedings before the lower Court was only anticipating that an early final order could be passed on the injunction application. He was willing to cooperate, even though illegality had been committed by the Court below. But the procedure adopted by the Court below was contrary to expectations, and again, there cannot be any question of estoppel with respect to jurisdictional matters. The silence on the part of the petitioner will not confer jurisdiction, and it will not also make an illegal order, a legal one. At this juncture, learned Counsel for respondents further submitted that in this Revision, the only order that is challenged is the one passed in I.A. 15598 of 1998, i.e., the order to reopen the injunction application. According to him, that order does not suffer from any jurisdictional error, and, therefore, no ground has been made out for interference under Art. 227 of the Constitution of India. 16. The said submission of learned Counsel for respondents is also not correct. According to him, that order does not suffer from any jurisdictional error, and, therefore, no ground has been made out for interference under Art. 227 of the Constitution of India. 16. The said submission of learned Counsel for respondents is also not correct. In the various grounds taken in the Memorandum of Revision, the illegality of the first order itself is questioned, and in the relief portion, the petitioner seeks to set aside the order dated 8.10.1998, which is an ex parte order of injunction. I hold that the order dated 8.10.1998 passed by the Court below is not in accordance with law. While extending the interim orders also, provisions of Order 39, Rule 3-A, C.P.C. have been violated. Before extending an interim order, reasons why the injunction application could not be disposed of will have to be stated. Even though the original interim order was granted only for a fixed time, once the respondent has entered appearance and filed his counter, and he has also submitted his arguments, a further extension of the interim order was not proper. In this connection, it may also be noted that the very same plaintiffs filed an earlier suit in 1996 and that was also only for an injunction. No interim injunction was granted and the suit is still pending. There is no statement about the pendency of that suit in the present suit, and this amounts to suppression of material fact. Learned Counsel for respondents submitted that there is no purpose in continuing the earlier suit, and that has become infructuous, and that is why he has not stated any thing about that suit in the plaint relating to the present suit. I do not think, the reason submitted by learned Counsel could be accepted. Predecessors of respondents were parties to the earlier litigation, and the very same ex parte decree is also referred to in the earlier plaint. In spite of it, that Court did not think of granting any interim order. If only pendency of the earlier suit had been made mention of in the present litigation, the lower Court also would not have been misled for granting the impugned order. 17. In the result, I set aside the ex parte order of ad-interim injunction dated 8.10.1998. In spite of it, that Court did not think of granting any interim order. If only pendency of the earlier suit had been made mention of in the present litigation, the lower Court also would not have been misled for granting the impugned order. 17. In the result, I set aside the ex parte order of ad-interim injunction dated 8.10.1998. I direct the Court below to consider the interim application on merits and pass final orders on the same without any further delay, within a period of one month from to-day. The Civil Revision Petition is allowed as indicated above. No costs. Connected C.M.P. is closed.