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2004 DIGILAW 57 (AP)

P. Krishna v. K. Rajamani

2004-01-21

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Sri Surender Rao, Counsel representing the Revision petitioner and Sri madhusudhan Reddy, Counsel representing Sri Rajender Reddy, counsel for the respondents. ( 2 ) THIS Revision is filed under Article 227 of the Constitution of India as against an order dated 7-11-2003 made in I. A. No. 903/2003 in O. S. No. 1095/2003 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad. The Revision petitioner is the 2nd defendant in the suit and 2nd respondent in the said application. On 21-11-2003 while ordering notice before admission and posting the matter for admission and disposal on 28-11-2003 pending passing of further orders it was directed that the impugned order shall not be given effect to and the said order was being extended from time to time. ( 3 ) RESPONDENTS 1 to 5 in the Revision filed O. S. No. 1095/2003 for the relief of perpetual injunction and had also moved an application I. A. No. 903/2003 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad for temporary injunction restraining respondents 1 to 3 from interfering with the peaceful possession and enjoyment of the petitioners/plaintiffs with the business in shop bearing No. B-35 situated at Bowenpally, Secunderabad. The interim injunction as prayed for was granted and the I. A. was originally posted to 14-11-2003 and it is represented that the matter had undergone several adjournments subsequent thereto. The main grievance ventilated by Sri Surender Rao, the learned Counsel representing the Revision petitioner is that at the earliest point of time an objection relating to maintainability of the suit itself had been taken and elaborate counter was filed and despite repeated requests, the learned XI Junior civil Judge, City Civil Court at Secunderabad had been postponing the matter and for reasons best known was not interested in disposing of the matter. The learned Counsel also pointed out that in fact even an application for advancement of hearing was made and in spite of serious attempts made on the part of the Revision petitioner, he was unsuccessful in getting the matter disposed of and in the light of the peculiar facts and circumstances and also in view of the urgency involved in the matter, the Revision petitioner was constrained to invoke the jurisdiction of this Court under Article 227 of the constitution of India. The learned Counsel also maintained that though in normal circumstances as against an order made under Order 39 Rules 1 and 2 c. P. C. an Appeal lies, in the peculiar circumstances the jurisdiction of this court can be invoked under Article 227 of the Constitution of India. The learned Counsel also had placed reliance on A. VENKATASUBBAIAH NAIDU Vs. S. CHELLAPPAN, SURYA DEV RAI Vs. CHANDER RAI and PUVVADA SRINIVAS AND ANOTHER vs. P. CH. SATYANARAYANA MURTHY AND OTHERS. Per contra Sri Madhusudhan Reddy, the learned Counsel representing the respondents 1 to 5, the plaintiffs in the suit had contended that the non-filing of the registration certificate relating to the registration of M/s. Veerabhadra and Co. , is of no consequence at all and even otherwise this is a matter to be decided in the suit. The Counsel also would maintain that respondents 1 to 5 in the present Revision/plaintiffs in the suit, are the absolute owners and the licence holders of M/s. Veerabhadra and Co. The learned Counsel also submitted that there are no special, extraordinary or compelling circumstances which may entitle the Revision petitioner to invoke the jurisdiction of this Court under article 227 of the Constitution of India in view of the fact that definitely the petitioner is having an effective alternative remedy of filing of Appeal under order 43 Rule 1 C. P. C. The learned Counsel also submitted that the interim order made by this Court is causing lot of prejudice to respondents 1 to 5 and hence in any view of the matter, the Civil Revision Petition is liable to be dismissed. ( 4 ) HEARD both the Counsel. ( 5 ) AS already referred to supra, while ordering notice before admission, interim order was made and subsequent thereto the same was being extended. As can be seen from the record, the Revision was admitted on 28-11-2003. Several of the facts are not in controversy. ( 4 ) HEARD both the Counsel. ( 5 ) AS already referred to supra, while ordering notice before admission, interim order was made and subsequent thereto the same was being extended. As can be seen from the record, the Revision was admitted on 28-11-2003. Several of the facts are not in controversy. The impugned order dated 7-11-2003 made in i. A. No. 903/2003 in O. S. No. 1095/2003 on the file of XI Junior Civil Judge, City civil Court, Secunderabad was passed by the learned Judge on an application filed under Order 39 Rules 1 and 2 C. P. C. It is also not in controversy that as against this order, a Civil Miscellaneous Appeal is provided for under Order 43 c. P. C. The learned Counsel representing the Revision petitioner had laid stress on several of the observations made by the Apex Court in the decision referred (2) supra and also the ultimate ratio laid down in the said decision and had contended that in the light of the peculiar facts and circumstances especially in view of the hardship to which the Revision petitioner would be put if the interim order already granted is vacated, it is a fit matter to continue the said interim order with a direction to dispose of the I. A. itself at an early date. ( 6 ) THE existence of jurisdiction to entertain a matter is definitely different from exercising the jurisdiction and under what circumstances the same may have to be exercised. In the present case, on a careful reading of the averments made in the affidavit filed in support of I. A. No. 903/2003 and the counter affidavit filed by the present Revision petitioner/2nd defendant/2nd respondent, I am satisfied that there is urgency involved in the matter for the final disposal of the application. However, this by itself would not mean that in every matter of this nature, the remedy under Article 227 of the Constitution of India can be invoked. In the light of the fact that the impugned order is an appealable order, I am not inclined to disturb the said order in any way and hence it is needless to say that the interim order granted by this Court cannot be sustained and accordingly the said order is hereby vacated. In the light of the fact that the impugned order is an appealable order, I am not inclined to disturb the said order in any way and hence it is needless to say that the interim order granted by this Court cannot be sustained and accordingly the said order is hereby vacated. However, in view of the urgency involved, when the parties to a lis are pressing for early disposal of a matter, I am of the considered view that it is the duty of the Court to expedite the disposal and in fact the different provisions and the scheme of Order 39 c. P. C. itself had envisaged early disposal of such matters. In this view of the matter, I am also of the opinion that the learned XI Junior Civil Judge, City civil Court, Secunderabad should have disposed of the matter at the earliest point of time and in the light of the facts brought to the notice of this Court, in the interest of justice, the Civil Revision Petition is disposed of with the following directions:the learned XI Junior Civil Judge, City Civil Court, Secunderabad is hereby directed to dispose of I. A. No. 903/2003 in O. S. No. 1095/2003 within a period of ten days from the date of receipt of this order without any delay after affording opportunity to both the parties. ( 7 ) EXCEPT giving this direction, no other relief can be granted in the present civil Revision Petition. No costs.