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2006 DIGILAW 328 (AP)

K. Kannaiah v. S. Desamma

2006-03-08

L.NARASIMHA REDDY

body2006
ORDER These two revisions are filed by the same petitioners, but in relation to different sets of proceedings. 2. Petitioners are residents of a hamlet of a village, by name Nasanoor of Puttur Mandal, Chittoor District. On finding that their hamlet is not connected to the main village, they made efforts to get a road laid, at a programme conducted by the Government, in or about June or July 2002. 3. Apprehending that the petitioners and other villagers would lay road over their lands, without acquiring the same or without payment of compensation the respondents herein filed O.S.Nos.135and 136 of 2002, in the Court of Principal Junior Civil Judge, Puttur, for the relief of perpetual injunction, against the petitioners. They also filed applications, being I.A.Nos.510 and 529 of 2002, under Order 39 Rules 1 and 2 C.P.C., in the respective suits. The trial court is said to have appointed an Advocate-Commissioner, to note the physical features of the suit schedule lands. An inspection was conducted by the Commissioner, and it was reported that no read was laid, as on that date, across the land. 4. Even while the applications under Order 39 Rules 1 and 2 C.P.C. were pending, the petitioners are said to have laid road on 1-10- 2002, across the suit schedule lands. Thereupon, the respondents filed I.A.Nos.893 and 894 of 2002 in both the suits, under Order 39 Rules 1 and 2, read with Section 151 C.P.C., with a prayer to direct the petitioners herein, to undo the wrong done to the respondents, by removing the road over the suit schedule land. The applications were resisted by the petitioners, on several grounds. Through separate orders, dated 15-11-2002, the trial court allowed the applications. 5. Petitioners tiled C.M.A.Nos.12 and 13 of 2002, respectively, in the Court of Senior Civil Judge, Puttur. The appeals were dismissed, through separate orders, dated 6-1-2003. Hence, these two C.R.Ps. 6. Sri P. V. Vidyasagar, learned counsel for the petitioners, submits that the applications filed by the respondents were not maintainable in law. He contends that when the suit itself is for the relief ·of perpetual injunction, an application for the relief of mandatory injunction was not at all contemplated. Hence, these two C.R.Ps. 6. Sri P. V. Vidyasagar, learned counsel for the petitioners, submits that the applications filed by the respondents were not maintainable in law. He contends that when the suit itself is for the relief ·of perpetual injunction, an application for the relief of mandatory injunction was not at all contemplated. He contends that, once it has emerged that the trial court did not grant any interim orders, in the applications filed under Order 39 Rule 1 C.P.C., there was no justification in finding fault with the petitioners, in laying the road. 7. Sri D. Seshadri Naidu, learned counsel for the respondents, on the other hand, submits that the petitioners were very much aware, not only about the pendency of the suit, but also as to the exercise undertaken by the trial court, in appointing a Commissioner, and despite the same, they have proceeded to lay the road. Learned counsel submits that the courts below have discussed the matter at length, with reference to settled principles of law and decided cases, and that no interference is called for, with the orders under revision. 8. Though the relief claimed by the petitioners in the respective applications is couched, in certain indirect terms and words, the net result is that they sought for the relief of temporary mandatory injunction, for removal of the road laid by the petitioners. Grant of temporary mandatory injunction, even where the suit permits of such a relief, is a rarity. A party to the suit can be required to remove a structure, or undertake similar acts, only at the stage of disposal of the suit, except where they are found to be urgent, and imminent. It is not in dispute that the instant suits were filed for the relief of perpetual injunction. 9. There may be instances, where, in a suit for perpetual injunction, the defendants resort to certain acts, in violation of orders of temporary injunction. In such cases, apart from initiating proceedings, either under the Contempt of Courts Act, or under Rule 2-A of Order 39 C.P.C., the trial court in exercise of its power under Section 151 C.P.C., may require the party to restore the plaintiff to the same position, in which he would have been, but for the violation. In the instant case, there was no order of temporary injunction. In the instant case, there was no order of temporary injunction. Therefore, the occasion for the trial court, to have found fault with the petitioners herein, in the matter of laying the road, did not exist. Both the courts below appear to have been impressed by the fact that, even while the suits were pending, the petitioners proceeded to lay the road. If the trial court was prima facie convinced, at least when it received the report, it ought to have granted temporary injunction, in which case, all this complication could have been prevented. Once it has emerged that the road was laid, the same cannot be undone, through an order, in an application filed under Order 39 Rule 1 C.P .C. The necessary relief has to be moulded, at the time of disposing of the suit itself. 10. For the foregoing reasons, the C.R.Ps. are allowed, and the orders under revision are set aside. The trial court is directed to dispose of the suits, within four months from the date of receipt of a copy of this order. It shall be open to the respondents herein, to file such application, as they deem fit, to amend the prayer in the suit, and for appropriate relief. There shall be no order as to costs.