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2008 DIGILAW 2054 (MAD)

M. Loganathan & Others v. Mariyayeeammal

2008-06-27

S.MANIKUMAR

body2008
Judgment :- Aggrieved by the interim injunction granted by the II Additional Subordinate Judge, Coimbatore, dated 28.06.2006 in I.A.No.313 of 2006 in O.S.No.366 of 2006, the revision petitioners have approached the Court by way of preferring the present Civil Revision Petition. 2. The necessary facts leading to the filing of this Civil Revision Petition are as follows: The first revision petitioner has filed a suit in O.S.No.142 of 2004 on the file of the District Munsif, Coimbatore and sought for a permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property on the ground that he is the absolute owner of the suit property from 1983 onwards, after the demise of his mother. He has obtained interim injunction. 3. The respondent has filed a suit in O.S.No. 235 of 2004 on the file of the Subordinate Judge, Coimbatore for declaration that she is the owner of the suit property by adverse possession and for a consequential relief of permanent injunction restraining the first petitioner/ defendant from alienating or encumbering the suit property. The respondent has also filed a suit in O.S.No.366 of 2006 on the file of the II Additional Subordinate Judge, Coimbatore for injunction restraining the petitioners from altering the physical feature of the suit property and also for a permanent injunction restraining the petitioners from interfering with her possession and enjoyment of the suit property. She has also filed an application in I.A.No.313 of 2006 for interim injunction. Parties in the above suits are one and the same and the issue is common. The plaintiff/respondent entered into an agreement with the first respondents mother but before execution of sale deed she died. The allegation in the above interlocutory application is that, the first petitioner had sold the suit property to respondents 2 to 16 and therefore they have been added as parties to the suit. 4. Mr.N.Damodaran, learned counsel appearing for the revision petitioners would mainly contend that in respect of the property in question, the first petitioner had already obtained an order of injunction as early as on 11.02.2004, which was later on made absolute and the suit filed by the respondent is still pending before the Sub Judge, Coimbatore. 5. 4. Mr.N.Damodaran, learned counsel appearing for the revision petitioners would mainly contend that in respect of the property in question, the first petitioner had already obtained an order of injunction as early as on 11.02.2004, which was later on made absolute and the suit filed by the respondent is still pending before the Sub Judge, Coimbatore. 5. He drew the attention of this court to two decisions of the Apex Court in Venkata Subbiah Naidu v. S.Challappan 2000 4 CTC 358 and Kishore Kumar v. Praveen Kumar 2006 (3) CTC 185 for the proposition that before granting an ex parte injunction, the Court has to record reasons thereof and it should enable the litigant to perform his obligations, enumerated in Clauses (a) and (b) of the Rule 3 of Order 39 C.P.C.. Therefore, according to the learned counsel for the revision petitioners the Court below was not justified in granting interim injunction against the revision petitioners. 6. He has also contended that the order of the Court below is a non speaking order and beyond the scope of Order 39 Rule 3 CPC. In support of his contention he referred to a judgment in Rt.Rev.Dr.V.Devasahayam v. D.Sahayadoss, 2002 (1) MLJ 501 and Uma Maheswari v. S.Peter ( 2006(5) CTC 568 ) and an unreported order of this Court in CRP.Nos.1568 of 2007 dated 06.07.2007 in an identical issue. The learned counsel for the revision petitioners has also relied on a decision of the Supreme Court in Murugan Stanley Mutual Fund v. Kartick Das 1994 (4) SCC 225 and submitted that granting injunction without notice requires interference of this Court as was done in the case of Kodikanal International School v. Minor Nihal Ghosh 2003 (2) MLJ 87 . He further submitted that the court below ought to have adverted to the fact that the order of interim injunction granted and subsequently extended from time to time runs contrary to the order of temporary injunction already granted in favour of the first petitioner herein and in such circumstances the court below ought not to have exercised its discretion in favour of the respondent herein and thus committed a serious illegality in granting interim order. 7. 7. On the other hand, learned senior counsel appearing for the respondent, referring to the powers of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, relied on the decision of this Court in Ganesa Naicker and another v. Kokilambal and others reported in (2005) 4 M.L.J. 155 with regard to the exercise of superintending powers conferred on the High Court under Article 227 of the Constitution of India. According to the learned Senior counsel for the respondent, the revisional jurisdiction against an interim order passed by the trial court, is substantially restricted and that the revisional jurisdiction of this court cannot be exercised, unless there is material irregularity in the exercise of discretion. In such circumstances he prayed this court not to interfere with the order of injunction granted by the court below. He also cited two decisions of the Honble Supreme Court made in 2003(6) SCC 675 and 2007 (2) SCC 275 in support of his case. 8. I have carefully considered the arguments of the learned counsel appearing for the parties, materials available on record and the decisions relied on by the learned counsel on either side. 9. Before adverting to the facts of the case, this court deems it fit to refer the relevant rule for the grant of exparte interim injunction. As per Order XXXIX rule 3-A, where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty 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. But in this case exparte injunction was granted on 26. 2006 and subsequently it was extended periodically on 17. 2006, 8. 2006, 9. 2006 and finally on 110. 2006. Aggrieved by the same, the petitioners have come forward to this court by way of filing the present civil revision petition. Normally granting of an exparte injunction and extension of exparte order is not illegal and it is purely the discretion of the court, subject to the satisfication of the ingredients of the Section with reference to the material documents on record. Normally granting of an exparte injunction and extension of exparte order is not illegal and it is purely the discretion of the court, subject to the satisfication of the ingredients of the Section with reference to the material documents on record. As per Rule 3A, where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application, within 30 days from the date on which the injunction was granted, and where it is unable so to do, it shall record its reading for such inability. In the case on hand, so far as the grant of exparte order of injunction is concerned, there is no question of violation of any of the provisions contained in Order 39 Rule 3 C.P.C., even though the matter was adjourned thereafter for one reason or other. 10. In the circumstances, the learned II Additional Subordinate Judge, Coimbatore is directed to dispose of the injunction application within a period of three weeks from the date of the receipt of a copy of this order in compliance with the Order 39 Rule 3(A) C.P.C and in accordance with law. It is open for the petitioners to raise all the points advanced in this civil revision petition. The learned II Additional Subordinate Judge, Coimbatore is further directed to dispose of the suit within a period of three months thereafter. 11. With the above observation this civil revision petition is disposed of. No costs. Consequently the connected M.P.No.1 of 2006 is closed.