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2003 DIGILAW 780 (KAR)

GUDUMA v. SHIKANDAR

2003-09-15

M.S.RAJENDRA PRASAD

body2003
M. S. RAJENDRA PRASAD, J. ( 1 ) THIS revision petition filed under Section 115 of the CPC by the unsuccessful plaintiff is directed against the order dated 3-3-2003 passed in M. A. No. 9 of 2002 on the file of the Principal Civil Judge (Senior Division), Jamkhandi, wherein, the learned Civil Judge had allowed the said miscellaneous appeal and thereby vacated the order of temporary. injunction granted by the Trial Court (Principal Civil Judge (Junior Division), Jamkhandi) vide order dated 5-7-2002 passed in LA. No. I in O. S. No. 69 of 1999, questioning the legality and propriety of the order impugned. ( 2 ) THE Court has heard the arguments of both sides. ( 3 ) SRI Jayavittal Rao Kolar, learned Counsel for the revision petitioner, strenuously contended that the material on record clearly shows that the order impugned is illegal and improper and the learned Civil judge (Senior Division) had not appreciated the facts in issue in the right perspective. He also contended that the plaintiff has been in lawful possession of the suit property and had sought for interim order of injunction in the Trial Court against the respondents from interfering with her peaceful possession and enjoyment of the suit property. The trial Court, after careful consideration of the facts in issue, had exercised its discretion in favour of the plaintiff. The learned Civil Judge (Senior Division), without considering the facts in issue, had interfered with the order of the Trial Court and vacated the order of temporary injunction and the same is totally unjustifiable in law. The learned counsel contended that the facts in issue require to be considered in the full fledged trial and till then, status quo between the parties will have to be maintained and, if not, the very purpose of the suit will be defeated. The learned Counsel relied upon the following two decisions in support of his contentions: (1) Sri Sri Uttaradhimath v Sri Sri Raghavendraswamy Math; and (2) H. Seshadri v K. R. Natarajan and Another. Placing reliance on the ratio laid down in the said decisions, the learned counsel prayed for allowing the revision petition. ( 4 ) ON the contrary, Smt. Sona Vakkund, learned Counsel for the respondents, strenuously contended that the material on record clearly shows that the order impugned is legal and proper. Placing reliance on the ratio laid down in the said decisions, the learned counsel prayed for allowing the revision petition. ( 4 ) ON the contrary, Smt. Sona Vakkund, learned Counsel for the respondents, strenuously contended that the material on record clearly shows that the order impugned is legal and proper. The learned Civil judge (Junior Division) had not considered the facts in issue in the right perspective and had granted the order of temporary injunction which was patently perverse, illegal and capricious, and the learned Civil judge (Senior Division), as appellate Judge, has examined the material on record in the light of the settled principle of law and had arrived at the right conclusion in holding that the order impugned is illegal, perverse and capricious. The learned Counsel also contended that the revision petition as filed is not maintainable in law in view of the amended provisions of the Code of Civil Procedure. She also contended that the respondents have been executing the order of eviction passed in the year 1972 and there had been innumerable proceedings between the parties in different fora and before different fora and the matter has been fought out upto the Apex Court and the Apex Court also negatived the claim of the revision petitioner. Such being the case, the revision petitioner cannot afford to fight out the litigation in this forum. The learned Counsel also contended that the exercise of the revision petitioner in this behalf is nothing but abuse of the process of law. There are absolutely no equities in favour of the plaintiff-revision petitioner. The learned Civil judge (Senior Division) had considered the facts in issue in the right perspective and had arrived at the right conclusion. The learned Counsel relied upon the following decisions in support of her contentions: (1) Shiv Shakti Co-operative Housing Society, Nagpur v M/s. Swaraj Developers and Others; (2) Gadag Co-operative Cotton Sale Society Limited v Ramanath and Others. Placing reliance on the ratio laid down in the said decisions, she prayed for dismissal of the revision petition. ( 5 ) THE Court has perused the records and the citations relied upon by both sides and has given its anxious thoughts over the rival contentions raised. Placing reliance on the ratio laid down in the said decisions, she prayed for dismissal of the revision petition. ( 5 ) THE Court has perused the records and the citations relied upon by both sides and has given its anxious thoughts over the rival contentions raised. ( 6 ) FROM the material on record, it is seen that the subject-matter of the suit has been an immovable property, wherein, the plaintiff is stated to be residing, along with her husband. It is borne out of the record that an eviction petition in H. R. C. No. 1 of 1967 came to be filed against the mother of the revision petitioner herein and on 30-3-1972, an order of eviction came to be passed against the mother of the plaintiff and execution has been taken out against her in Ex. No. 54 of 1972. The mother of the plaintiff Smt. Hajarabi died and the plaintiff entered the scene as her L. R. The plaintiff took up several pleas and there had been obstruction for executing the order of eviction. The matter in this forum had been agitated upto Apex Court and the plaintiff had failed in the proceedings. At that stage, the plaintiff had filed a suit before the Trial court stating that the order of eviction passed on 30-3-1972 was not binding on her and also sought for an order of temporary injunction restraining the respondents from dispossessing her from the suit property. The lower Court had granted an order of temporary injunction as prayed by the plaintiff. Feeling aggrieved by the said order, the defendants had carried an appeal before the Civil Judge (Senior Division) in m. A. No. 9 of 2002. The learned Civil Judge (Senior Division), after considering the facts in issue, recorded a finding that the order impugned before him was illegal and perverse and, accordingly, interfered with the order and allowed the miscellaneous appeal. The plaintiff, feeling aggrieved by this order, has come up before this Court with the instant revision petition. The learned Civil Judge (Senior Division), after considering the facts in issue, recorded a finding that the order impugned before him was illegal and perverse and, accordingly, interfered with the order and allowed the miscellaneous appeal. The plaintiff, feeling aggrieved by this order, has come up before this Court with the instant revision petition. ( 7 ) FROM the material on record, it emerges that the plaintiffs father had executed a rent note in respect of the suit property and initially when the eviction petition had been filed against the plaintiffs father, the plaintiffs father and his wife, and later on his wife, both of them had denied the jural relationship of landlord and tenant between the parties at issue and there had been number of litigations which had been fought out right from the Court of Munsiff till the High Court. In all these proceedings, the claim of the plaintiffs parents had been negatived and ultimately a finding came to be recorded that there existed the jural relationship of landlord and tenant between the defendants and their fore-fathers, and this finding had become final and the landlords took out execution of the order passed in H. R. C. No. 1 of 1967 in Ex. No. 54 of 1972 and subsequently, the parents of the plaintiff died and the plaintiff entered the scene as their legal representative. The plaintiff, in the course of execution proceedings, raised objections on a variety of reasons. It is necessary to mention at this stage itself that the plaintiff is a married woman living with her husband. Incidentally, it also requires to be mentioned that the plaintiff had also set up a plea that she had been in possession of the suit property in her individual right. The material on record also shows that the plaintiffs mother and plaintiff also had taken up a plea that they had been in possession of the suit property and perfected their title by adverse possession. At this stage itself, it is also necessary to mention that the plaintiffs father in the first instance, and later on the plaintiffs mother, and now the plaintiff has been agitating this matter for nearly four decades. It is settled principle of law that a person could acquire title to an immovable property initially by succession or inheritance so far as family properties are concerned. It is settled principle of law that a person could acquire title to an immovable property initially by succession or inheritance so far as family properties are concerned. The other mode of acquisition of immovable property known to law is by the Act of parties, i. e. , by inter vivos (the transactions in this behalf would be sale, exchange, or gift), or by testamentary disposition. The plaintiff has not been claiming the property in any of these modes. The last mode of acquisition of immovable property known to law would be adverse possession. Here, it is necessary to mention that a person could acquire title by adverse possession in respect of immovable property, if he proves that he has been in physical, continuous and uninterrupted possession, enjoying the property openly, hostile to the interest of the rightful owner. Emphasis is laid on the phrase "hostile to the interest of the rightful owner". This principle emerges from a latin maxim 'nac vi nec claim nec precario'. It is also necessary to mention that whenever a litigant sets up a plea of adverse possession in a judicial proceeding in adversary system of administration of justice, virtually he would admit the title of the other side. At that stage, the burden would be on the person who takes up the plea of adverse possession to place acceptable material in proof of this plea. In the case on hand, there had been a number of litigations which are being fought out at the instance of the plaintiff and her parents and their claim in this behalf has been negatived in all the forums and forms. It is also necessary to mention that in the adversary system of administration of justice, law provides for protection of property from the strangers whenever there has been a cloud cast by the other side in respect of the title to the property and whenever there has been interference with physical possession and enjoyment of such property. It is also necessary to mention that a party has every right to protect his property in the process known to law on one and the only occasion and once such a party loses the legal battle, the case reaches finality and the aggrieved party cannot be allowed to wage subsequent legal battles in any forum or form. It is also necessary to mention that a party has every right to protect his property in the process known to law on one and the only occasion and once such a party loses the legal battle, the case reaches finality and the aggrieved party cannot be allowed to wage subsequent legal battles in any forum or form. In other words, the law does not recognise and appreciate a party attempting to play a second innings in any form or forum. In the case on hand, the plaintiff has sought for the relief of declaration that the order of eviction passed in respect of the suit property against her parents is without jurisdiction and is not binding on her. ( 8 ) IT is necessary to mention that the Karnataka Rent Control Act is a self-contained statute and it contemplates the full and comprehensive statutory provisions and also the forums. In view of these settled principles of law, in the opinion of this Court, a civil suit questioning an order of eviction is both expressly and impliedly barred under Section 9 of the code of Civil Procedure. In other words, the suit as brought is not maintainable in law and this would be a major hurdle for the plaintiff to seek an order of temporary injunction, which is a discretionary relief. It is a settled principle of law that when the suit itself is not maintainable, a party cannot afford to seek an order of temporary injunction. The relief of temporary injunction is a protective relief granted in a judicial proceeding in favour of a party when the Court is satisfied that the fact in issue in the case requires to be examined and scrutinized in a fullfledged trial and till the Court of law decides that, the interest of the party should be protected and only at that stage, an order of temporary injunction could be granted. ( 9 ) IT is also necessary to mention that the relief of temporary injunction is a discretionary relief falling within the four-folds of the maxims of equity. Few of the settled principles of law in this regard are, a person who seeks equity should do equity, and the person should approach the court for such relief with clean hands. ( 9 ) IT is also necessary to mention that the relief of temporary injunction is a discretionary relief falling within the four-folds of the maxims of equity. Few of the settled principles of law in this regard are, a person who seeks equity should do equity, and the person should approach the court for such relief with clean hands. The Trial Court, which has been vested with the power to consider an application for the relief of temporary injunction, should see whether there exists a prima facie case, whether the applicant would suffer substantial loss and irreparable injury in the event of not granting an order of temporary injunction, and whether the balance of convenience lies in favour of the applicant. If these three legal requirements are established, a party would be entitled for an order of temporary injunction. ( 10 ) WHENEVER an appeal is filed against granting or rejecting the relief of temporary injunction, the Appellate Court should be satisfied that the order complained of is perverse, illegal or capricious. The Appellate court should not lightly interfere with the discretion exercised by the Trial Court unless there has been willful disgard of the material pleadings and when there is some conscious violation of the rule of law or procedure on the part of the Trial Court. It is also necessary to mention that the Appellate Court should not lightly interfere with the discretion exercised by the Trial Court unless it is shown that such exercise of discretion is unreasonable or capricious. Just because a different view is possible, would not be sufficient to interfere with the order. In other words, the appellate Judge is not to approach the case by stepping into the shoes of the Trial Judge while considering an appeal of this nature. Whenever a Subordinate Court acts with material irregularity and gives its decision ignoring the settled principles of law, the subordinate Court would be deciding the matter contrary to the statute law or precedent law a^d such an order would partake, the nature of an order without jurisdiction and in such a case, the Appellate Court would be justified in interfering with the order of the Trial Court. ( 11 ) FROM the material on record, it is seen that the order of the Trial court clearly shows that there is no required consideration of the pleadings of the parties and the facts and circumstances, and the Trial Court had not considered the application in the light of the said principles of law and as such, there had been conscious violation of the rule of law and such being the case, the Appellate Court was totally justified in interfering with the order of the Trial Court. Particularly, having regard to the facts and circumstances of the case and the manner in which the plaintiff has been litigating in respect of the suit property, the action of the plaintiff can never be stated as justifiable and the Appellate Court had considered these aspects in the light of the settled principles of law and had arrived at the right conclusion. There is no error of jurisdiction on the part of the Appellate Court in interfering with the order of the trial Court. ( 12 ) HAVING regard to the peculiar facts and circumstances of the case, the citations relied upon the learned Counsel for the plaintiff cannot be pressed into service. ( 13 ) IT is also necessary to mention that the learned Counsel for respondents has also submitted arguments with regard to maintainability of the revision petition and has relied upon a decision of this Court in gadag Co-operative Cotton Sale Society Limited's case, supra. On a careful reading of this decision, it is seen that this Court has held that by passing an order on an application for temporary injunction, the suit would not be finally disposed of and as such no case is made out to interfere in revision. The said decision squarely applies to the facts of the case. Even on this score, the claim of the plaintiff will have to be negatived by holding that the revision petition as brought is not maintainable in law. ( 14 ) NOW, coming to the costs of the proceeding, it is necessary to quote a portion of the following passage from Mulla Code of Civil Procedure (Abridged), Thirteenth Edition, page 195:"the section provides that the costs of the suits and applications shall be in the discretion of the Court. ( 14 ) NOW, coming to the costs of the proceeding, it is necessary to quote a portion of the following passage from Mulla Code of Civil Procedure (Abridged), Thirteenth Edition, page 195:"the section provides that the costs of the suits and applications shall be in the discretion of the Court. Such discretion must be a judicial discretion to be exercised on legal principles, not by chance, medley, nor by caprice, nor in temper. In the exercise of this discretion the Court is not confined to the consideration of the conduct of the parties in the actual litigation itself, but may also take into consideration matters which led up to and were the occasion of that litigation. The discretion conferred upon the Court by this section is very wide". ( 15 ) THE material on record shows the conduct of the plaintiff and her parents in fighting out these litigations. The Court cannot lose sight of this aspect and also the matters which led up to and were the occasion of the litigation. ( 16 ) TAKING cue from the said passage and having regard to the facts and circumstances of the case, this Court is constrained to observe that the plaintiff has been fighting out an unrighteous litigation in a most unceremonial way. It may not be out of context, if it is mentioned that the execution petition has been made to be pending for more than three decades and the decree-holders had been made to run from pillar to post and they have not been able to realise the fruits of the eviction order and the Courts of law cannot afford to lose sight of these and taking liberal view of these matters is likely to shake the confidence of the people in the judiciary and this would be a fit case to turn down the claim of the plaintiff and also award costs to the respondents. It is also made clear that the said costs are not awarded by way of penalty, but levied on the plaintiff only to meet the ends of justice. ( 17 ) FOR the foregoing reasons and the observations made supra, the revision petition is dismissed with costs of Rs. 3,000/- and the order impugned is hereby confirmed. However, it is made clear that any observations made in the course of this order shall not prejudice either side. --- *** --- .