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2002 DIGILAW 424 (KER)

K. v. Jose VS Managing Director

2002-07-03

N.KRISHNAN NAIR

body2002
Judgment :- N. Krishnan Nair, J. These revision petitions are directed against the common order and judgment of the Additional District Judge, North Paravur in C.M.A. Nos. 40,41 and 42/2002. The facts necessary for the disposal of these petitions may be stated as follows : The revision petitioners were the licensees of the stalls attached to the Kerala State Road Transport bus stand, Aluva and they were conducting business in the respective stalls. Alleging that the petitioners were chronic defaulters of the licence fee, the Kerala State road Transport corporation, initiated proceedings for evicting the petitioners from the stalls. The attempt of the corporation to evict them was being resisted by the petitioners by securing stay orders from this court in several writ petitions. At last they filed the suits, O.S. Nos. 539, 540 and 541/2001 before the Munsiff Court, Aluva for rendition of accounts and consequential reliefs. Along with the plaints, they moved applications for interlocutory injunction to restrain the Corporation from evicting them during the pendency of the suits. All the applications were heard together by the learned Munsiff on 24-1-2002 and the applications were posted for orders on 1-2-2002. But the Corporation evicted the petitioners from the stalls with the help of the police on 26-1-2002, i.e. during the pendency of the applications for injunction. Thereupon the petitioners moved applications before the Munsiff Court to put them back in possession of their respective stalls. The learned Munsiff by a common order dated 4-2-2002 allowed all the applications and the Corporation was directed by an order of mandatory injunction to restore the possession of the respective stalls to the petitions within a period of 10 days. Aggrieved by the order, the Corporation preferred C.M.A. Nos. 40,41 & 42/2002 and the learned Additional District Judge, North Paravur by the impugned judgment set aside the order of the Munsiff and dismissed all the petitions. Aggrieved by the common order dismissing their applications, the petitioners have come up with these revision petitions. 2. The learned counsel for the petitioners strongly contended that the order of the court below is clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, the counsel for the corporation had given an undertaking before the disposal of the injunction applications and the action of the Corporation in evicting the petitioners during the pendency of the proceedings is clearly illegal. According to the learned counsel, the counsel for the corporation had given an undertaking before the disposal of the injunction applications and the action of the Corporation in evicting the petitioners during the pendency of the proceedings is clearly illegal. He further contended that there was no direction from this court to evict the petitioners except through due process of law and the finding of the court below is not sustainable. On the other hand the learned counsel for the Corporation supported the order of the court below and urged that there is no ground for interference. 3. The question for consideration is whether the Corporation was justified in evicting the petitioners from their respective stalls during the pendency of the applications for interlocutory injunction filed by them. Admittedly the applications were heard together on 24-1-2002 and the applications were posted for orders on 1-2-2002. But the petitioners were evicted from the stalls with the help of the police on 26-1-2002, i.e. before the disposal of the applications for temporary injunction. 4. The learned counsel for the Corporation contended that the Corporation was fully justified in evicting the petitioners since at the time of the eviction there was no order of injunction restraining the Corporation from evicting the petitioners from the stalls. On the other hand the learned counsel for the petitioners contended that the counsel for the Corporation had given an undertaking before the lower court and the undertaking will have as much effect as an interim injunction. If the counsel for the Corporation had given an undertaking as alleged, the Corporation was not justified in evicting the petitioners without honouring the undertaking. It is settled position that an undertaking made before a court of law will have as much effect as an interim injunction. In this connection it is relevant to note the following observations of this Court in Krishan v. Joseph Dsouza (1985 KLT 1010) : “Any action by which the process of the court is attempted to be thwarted has to be viewed seriously. If an order of junction is violated, that violation has to be dealt with sternly and seriously, for, otherwise, it will undermine the very basis of the Rule of Law. If an order of junction is violated, that violation has to be dealt with sternly and seriously, for, otherwise, it will undermine the very basis of the Rule of Law. There is no difference whether the violation pertains to an order, or to an undertaking made before a court of law, which too will have as much effect as an interim injunction in such circumstances”. Even if it is assumed that there was no undertaking as alleged by the petitioners, the Corporation was not justified in its action. Admittedly the petitioners were evicted before the disposal of the applications for injunction filed by them before the lower court. The Corporation has no case that they had no notice of the applications filed by the petitioners before the Munsiff Court. As early as 1951 the Travancore Cochin High Court in Ouseph Ouseph v. Minister for Food, Travancore Cochin (A.I.R. 1951 T.C. 226) held that if a party, knowing that his opponent has either approached the court or is taking steps tp approach it for a certain specific relief, does anything to make the grant of the relief, by way of prevention, ineffective the court has always jurisdiction to pass orders even in ordinary cases, in a mandatory form and to direct restoration of the status quo ante in the manner and to the extent possible. The decision reported in Ouseph Ouseph v, Minister for Food, Travancore Cochin (A.I.R. 1951 T.C. 226 was followed in P.J. Joseph v. Asst. Excise Commr. (A.I.R. 1953 T.C. 146 at 156). In this connection it is also relevant to note the decision reported in Smt. Suman Ismail Abdulatiff and another v. Madan Vawan Chodankar and another (A.I.R. 1980 NOC 49 {Goal}). It was held in that case that a mandatory injunction can be issued on an interlocutory application where, with notice of the institution of the suit and the prayer made in the plaint for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claims his relief. It was further held that an injunction can be issued in such a case so that the defendant may not take advantage of his own act and defeat the suit by saying that the old cause of action no longer survives and a new cause of action for a new type of suit has arisen. According to me, the decisions referred to above are squarely applicable to the facts of this case. 5. It appears that the learned Additional District Judge set aside the order of the Munsiff on the assumption that there is a direction from this Court to evict the petitioners, if the defaulted instalments are not paid. The learned Additional District Judge is also of the opinion that in view of the provisions contained in Sec. 63 of the Indian Easement Act the petitioners have no right to retain possession of their respective stalls. No doubt, as per Sec. 63 of the Indian Easement Act where as licence is revoked the licence is entitled to a reasonable time to leave the property and to remove any goods which he has been allowed to place in such property. Sec. 64 of the Act says that where a licence has been granted for consideration and the licensee without any fault of his own, is evicted by the grantor before he has fully enjoyed under the licence, the right for which he contracted, he is entitled to recover compensation from the grantor. No doubt, if the petitioners have defaulted in payment of licences and to remove the goods from the stalls. But, here the question is not whether the petitioners are entitled to retain the possession but whether the eviction of the petitioners during the pendency of the injuction applications is justifiable. The learned counsel for the petitioners brought to my notice the judgments in several writ petitions filed by the petitioners before this Court. The learned Additional District Judge has also placed much reliance on the observation of the learned Judge of this Court in O.P. No. 29751/99 that the petitioners are abusing the process of the court. The judgment in O.P. No. 29751/99 was challenged in W.A. No. 597/2000. On going through the copy of the judgment in W.A. No. 597/2000. On going through the copy of the judgment to enable the Corporation to evict the petitioners except through due process of law. The judgment in O.P. No. 29751/99 was challenged in W.A. No. 597/2000. On going through the copy of the judgment in W.A. No. 597/2000. On going through the copy of the judgment to enable the Corporation to evict the petitioners except through due process of law. The Writ appeal was allowed to be withdrawn, without prejudice to the litigation pending in the civil court. It is made clear in the judgment that the Corporation is at liaberty to take action in accordance with law for non-payment of licence fee. It appears that the Corporational has taken it as a licence to evict the petitioners without even honouring the undertaking given by the counsel before the Munsiff court and without waiting for the orders on the interlocutory applications. According to me, the action taken by the corporation in evicting the petitioners during the pendency of the applications for injunction is not in accordance with law and, therefore, the Corporation cannot be heard to say that they evicted the petitioners as per the direction of this court in W.A. N. 597/2000. At this stage, the court is concerned only whether the action of the Corporation in evicting the petitioners during the pendency of the injunction applications can be justified. The court is not concerned with the ultimate decision in the matter. For the reasons stated above, I set aside the impugned order and judgment and restore the order of the Munsiff. The Civil Revision Petitions are allowed. However, I make no order as to costs.