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2005 DIGILAW 1265 (MAD)

M. Parthasarathy v. C. Kalaivani & Others

2005-08-03

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of the Constitution of India, praying for a direction to the III Assistant Judge, City Civil Court, Chennai to dispose I.A.No.7401 of 2003 in O.S.No.1854 of 2003 on merits, as stated therein.) Invoking Article 227 of the Constitution of India, the First Defendant has filed this Civil Revision Petition, seeking for issuance of direction to III Assistant Judge, City Civil Court, Chennai to dispose I.A.No.7401 of 2003 in O.S.No.1854 of 2003 on merits, which is being adjourned from time to time. The First Defendant is the Revision Petitioner. 2. O.S.No.1854 of 2003 was filed by the Sisters for Partition and separate possession of their 1/32 share each against the Defendants. The Plaintiffs have claimed that the Suit Property belonged to one Arumuga Naicker – their Maternal Uncle. The First Defendant is resisting the Suit. 3. I.A.No.7401 of 2003:- At the time of filing the Suit, Plaintiffs 1 and 2 have filed this Application for Temporary Injunction restraining the Defendants, their men, Servants and agents from alienating, encumbering the Suit Schedule Property. 4. On 08.04.2003, the learned III Assistant Judge, City Civil Court, Chennai has granted Interim Injunction and passed the following order:- "....Heard the Petitioner. Perused the documents. Especially the settlement deed 07.08.1954. The Petitioner claim to be the co-owners of the suit property. The suit is filed for partition of the property. Now, they seek interim injunction. Balance of convenience rests with the petitioner for the present. In the above circumstances, ad-interim injunction is granted till 22.04.2003. Order 39 Rule 3 C.P.C to be complied with. Issue Notice to the Respondents by then....” In the above said Application, the First Respondent has filed the Counter and thereafter, the Petition was adjourned for Enquiry for a number of hearings. Despite the Revision Petitioner / First Defendant insisted for taking up the matter, final Enquiry was not taken up; but the Interim Order was extended. It is stated that the Application has not been so far disposed of. 5. Hence, the Revision Petitioner has filed this Civil Revision Petition for a direction to the III Assistant Judge, City Civil Court, Chennai to dispose I.A.No.7401 of 2003 in O.S.No.1854 of 2003 on merits. 6. The Revision Petitioner is represented by counsel Mr.N.S.Varadhachari. There is no representation for Respondents 1 and 2. During the pendency of the Civil Revision Petition, the Third Respondent died. 6. The Revision Petitioner is represented by counsel Mr.N.S.Varadhachari. There is no representation for Respondents 1 and 2. During the pendency of the Civil Revision Petition, the Third Respondent died. Respondents 4 to 7, who are the Legal Representatives of the Deceased are represented by counsel Ms. Sridevi. 7. As per Or.39 R.3-A C.P.C, whenever the Court grants Interim Injunction without giving Notice to the opposite party, the Court shall make endeavour to finally dispose of the Application within a period of 30 days from the date on which the Injunction was granted; and where it is unable to do so, it shall record its reasons for such inability. In the case in hand, it is seen that the Interim Order of Injunction was granted on 08.04.2003. Thereafter, the matter has been adjourned to a number of hearings. No endeavour has been made to take up the enquiry in the Application and dispose the Application within a period of 30 days though the Court has granted Interim Injunction. No reasons have also been recorded for adjourning the matter or for the inability of the Court in taking up the Enquiry. The requirement under Or.39 R.3-A has not been complied with. 8. Emphasizing the importance of the compliance of Or.39 R.3-A C.P.C, in the decision reported in A.VENKATASUBBIAH NAIDU ..VS.. CHELLAPPAN (A.I.R. 2000 S.C. 3032) the Supreme Court has observed thus: "...16. Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule 3-A. 17. The aforesaid Rule casts a three pronged protection to the party against whom the exparte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing. 18. What would happen if a Court does not do either of the courses? Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing. 18. What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the Legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also, it is only in very exceptional cases that the Court can by-pass such a rule in which cases the Legislature mandates on the Court to have adequate reasons for such by-passing and to record those reasons in writing. If that hump is also by-passed by the Court, it is difficult to hold that the party affected by the order should necessarily be the sole sufferer....” 9. In view of the observation of the Supreme Court, the importance of compliance of Or.39 R.3-A C.P.C cannot be belittled. When Or.39 R.3-A C.P.C has not been complied with, as per the observation of the Supreme Court, only an Appeal has to be filed. However, in the circumstances of the case, the interest of justice would be met in directing the lower Court to dispose of the Application in I.A.No.7401 of 2003 in O.S.No.1854 of 2003 on merits within a period of one month from the date of receipt of a copy of this Order. 10. For the foregoing reasons, learned III Assistant Judge, City Civil Court, Chennai is directed to dispose I.A.No.7401 of 2003 in O.S.No.1854 of 2003 on merits within a period of one month from the date of receipt of a copy of this order. With the above direction, this Civil Revision Petition is disposed of. In the circumstances of the case, there is no order as to costs. With the above direction, this Civil Revision Petition is disposed of. In the circumstances of the case, there is no order as to costs. Both the parties are directed to co-operate with the Trial Court for early disposal of I.A.No.7401 of 2003 in O.S.No.1854 of 2003 on merits.