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2009 DIGILAW 112 (AP)

Kothapalli Anandam v. Andhra Brahma Pracharaka Trust Sreeramnagar, Kakinada, Rep. By its Managing Trustee

2009-02-25

P.S.NARAYANA

body2009
Judgment : The Civil Revision Petition was admitted on 12-1-2009. Notice was ordered initially. However, in view of the urgency pleaded, on 10-2-2009 interim stay was granted in C.R.P.M.P.No.113/2009 for a limited period. C.R.P.M.P. No.1144/2009 is filed to vacate the said interim order made by this Court on 10-2-2009 in C.R.P.M.P.No.113/2009. When the vacate application is coming up for hearing, the Counsel on record made submissions in elaboration and also made a request to dispose of the Civil Revision Petition itself. 2. Sri T.V.S. Prabhakara Rao, the learned Counsel representing the Revision Petitioner would maintain that the petitioner had preferred Special Leave Petition as against an order made in C.R.P.No.5204/2008. The Counsel also would maintain that when the petitioner reported ready in the main matter itself, the ordering of delivery is bad in law. The Counsel also would maintain that the learned Principal Junior Civil Judge, Kakinada, totally erred in making such an order which is being challenged by way of the present C.R.P. The Counsel pointed out to yet another aspect that Shashibhushan being no more, Rajyalaxmi, the wife of Shashibhushan, cannot maintain the present vacate application. 3. On the contrary, the Counsel representing respondent - Andhra Brahma Pracharaka Trust, would maintain that the said Shashibhushan is no more and Rajyalaxmi, the wife of Shashibhushan, being the Managing Trustee of the Trust, can definitely maintain the present application to vacate the interim order. The Counsel also would maintain that it may be true that the Special Leave petition was filed before the Apex Court but however the Apex Court was not inclined to grant any interim order. The Counsel also would maintain that the order made by the learned Principal Junior Civil Judge, Kakinada is only a consequential order and hence, the Civil Revision Petition itself is not maintainable as against such an order. The Counsel also would maintain that several of the facts had been suppressed by the Revision Petitioner. The Counsel also would maintain that the order made by the learned Principal Junior Civil Judge, Kakinada is only a consequential order and hence, the Civil Revision Petition itself is not maintainable as against such an order. The Counsel also would maintain that several of the facts had been suppressed by the Revision Petitioner. The learned Counsel also would maintain that the petitioner obtained interim injunction behind tback of the respondent - Trust by filing I.A.No.159/2005 in O.S.No.240/05 on the file of Principal Junior Civil Judge, Kakinada, and after receiving notice in the said interlocutory application, the Trust filed counter and contested the matter and after hearing both sides elaborately, the learned Judge vacated the interim injunction holding that the petitioner approached the Court with unclean hands and he is snot entitled to temporary injunction. Against the said order, the petitioner preferred C.M.A.No.61/06 on the file of III-Additional District Judge, Kakinada, and the same was dismissed on 1-5-2007. Aggrieved by the same, the petitioner further preferred C.R.P.No.2429/2007 before this Court and the same was dismissed on 17-7-2007. In the light of the series of events, the present Civil Revision Petition being devoid of merit, the same is liable to be dismissed. The Counsel also placed strong reliance on several of the decisions. 4. Heard the Counsel. 5. The present Civil Revision Petition is filed as against an order made in I.A.No.4749/2008 in I.A.No.3060/2008 in O.S.No.240/05 on the file of Principal Junior Civil Judge, Kakinada. This is an application filed by respondent -defendant -Andhra Brahma Pracharaka Trust, represented by itsManaging Trustee, Sashibhushan who is no more and at present represented by the present Managing Trustee, Rajyalaxmi, his wife, under Section 151 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) praying for an order of delivery of the suit schedule property through Court Amin. 6. The respondent - defendant as petitioner in I.A.No.4749/2008 aforesaid on the file of Principal Junior Civil Judge, Kakinada, stated that originally Court granted an ex parte order of injunction in I.A.No.519/2005 on 1-3-2005. Taking advantage of the said injunction order, the respondent - plaintiff brought flower pots in the lorries in the midnight and high handedly broke open the locks of gate and put the said flower pots in the schedule property and he is using the water for the flower plants. Taking advantage of the said injunction order, the respondent - plaintiff brought flower pots in the lorries in the midnight and high handedly broke open the locks of gate and put the said flower pots in the schedule property and he is using the water for the flower plants. He occupied part of the plaint schedule property on the east. He has no right to do so. In view of the injunction order, they cannot take any action and prevent him for entering into the property. Subsequently, I.A.No.519/2005 was dismissed on 30-10-2006 and injunction order dt.1-3-2005 was vacated. Respondent preferred C.M.A.No.61/2006 on the file of II-Additional District Judge, Kakinada and the same was dismissed on 1-5-2007. Respondent preferred C.R.P.No.2429/2007 on the file of the High Court of Andhra Pradesh, and the same was dismissed on 17-7-2007 confirming the orders passed by the lower Court. Subsequently, he filed I.A.No.3060/2008 for restitution of possession of the plaint schedule property. That petition was allowed directing the respondent to vacate the property and hand over the possession on or before 17-11-2008. Against the orders of this Court, the respondent preferred C.R.P.No.5204/2008 on the file of the High Court and the same was dismissed and the High Court directed the respondent plaintiff to vacate the schedule property within one week after receipt of the order copy. In spite of the orders of the High Court, the respondent not vacate the schedule property. Hence, he filed this petition for delivery of the property through Court Amin. 7. Revision Petitioner as respondent filed counter to the effect that he had preferred Civil Revision Petition on 21-11-2008 in C.R.P.No.5204/2008 and he approached the Supreme Court and the said matter is likely to reach the Bench tomorrow as per the order of the Supreme Court. The time given will be lapsed by 8-12-2008. hence, the present petition is premature one and he is ready to commence the trial as per the order of the Court and he also filed chief-affidavit. Thereafter only this petitioner filed this petition only to cause obstruction to trial proceedings and if the full-pledged trial is completed, the actual facts will be come out with regard to the possession of the plaintiff. Hence, prays the Court to dismiss the petition and also I.A.No.3060/2008 is not an executable order and the petitioner has to file a petition on execution side but not on original side. 8. Hence, prays the Court to dismiss the petition and also I.A.No.3060/2008 is not an executable order and the petitioner has to file a petition on execution side but not on original side. 8. The learned Judge having formulated the point for consideration at para 4, referred to certain decisions and ultimately came to the conclusion that the application to be allowed ordering delivery of the schedule property to the petitioner - defendant in the said application, the respondent herein, through Court Amin. Aggrieved by the same, the present Civil Revision Petition had been preferred. Several of the facts appear to be not in serious controversy. The fact that the Revision Petitioner had taken possession of the property subsequent to the obtaining of the interim injunction also is not in serious controversy. In C.R.P.No.5204/2008 this Court while dismissing the Civil Revision Petition, declared the trial Court to dispose of the suit, as expeditiously as possible, uninfluenced by the observations made while disposing of I.A.No.519/2005 or C.M.A.No.61/2006 or ordering restitution under the impugned Order and the petitioner plaintiff was granted one week time to deliver vacant possession of the plaint schedule property to the respondent - defendant, from the date of receipt of a copy of the order. It is no doubt stated that as against the said order, Special Leave Petition is pending before the Apex Court and no interim order as such had been made. In Gangadhar V. Raghubar Dayal Air 1975 All.102 (Fb), the Full Bench observed at para 19 as hereunder:- "On the authority of these cases and on the principle contained in the maxim actus curiae neminem gravabit it is really the duty of the Court to grant restitution under its inherent powers when a person has been deprived of his property due to an order of Court which has subsequently been varied or reversed as being erroneous. In our opinion, on the facts of the instant case, even if respondents 7 to 10 could not invoke the powers of the Court to grant restitution under Section 144 C.P.C. they could certainly do so under Section 151 C.P.C." In Hari Nandan V. S.N. Padita Air 1975 All.48 at para 22 it was observed as hereunder:- "So far as F.A.F.O.No.251 of 1972 and Civil Revision No.875 of 1972 are concerned it may be pointed out that the mere fact that the applicants had been dispossessed after the interim injunction order had been issued would not be enough to treat the chapter in regard to possession over the house as closed. If a person has been dispossessed by willfully disobeying an order of injunction the Court which issued the order of injunction can after considering the circumstances of each case and the conduct of the parties always pass such an order in the ends of justice as would undo the wrong done to the party in whose favour the order of injunction had been issued. The exercise of this inherent power vested in the Court is based on the principal that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court: (State of Bihar v. Usha Devi, AIR 1956 Pat.455 and Magna v. Rustam, AIR 1963 Raj.3)." 9. When a party not in possession of the property as on the date of the institution of the suit, after obtaining interim order, under the guise of the interim order, had taken possession of the property and subsequently the said interim order had been vacated and the same had been confirmed by the Higher Courts. It is needless to say that such party who had lost possession of the property by virtue of such an illegal act may have to be put back into possession of the property restoring the status quo ante, that is exactly what had been done in the present case. Even otherwise this appears to be only a consequential order. In the light of the same, this Court is not inclined to interfere with the order under challenge in the present Civil Revision Petition. Accordingly, the Civil Revision Petition shall stand dismissed with costs.