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2009 DIGILAW 325 (MAD)

K. S. Subramanian v. Badru Jebhan Waqf Alal Aulad Trust & Others

2009-01-27

G.RAJASURIA

body2009
Judgment :- Animadverting upon the order dated 22.07.2008 passed by the learned I Assistant City Civil Judge, Chennai, in I.A.No.10904, 10905 and 10906 of 2008 in O.S.No.4762 of 2008, these civil revision petitions are focussed. 2. Heard both sides. 3. The facts giving rise to filing of this revision as stood exposited from the records could succinctly and pithily be set out thus: The respondents/plaintiffs filed the suit O.S.No.4762 of 2008 seeking the following reliefs: "a permanent injunction restraining the defendant from subletting the suit schedule mentioned portion or from transferring the tenancy rights in respect thereof to anyone either directly, or indirectly by inducting any third party as partner or otherwise in the business of the defendant, .(b) a permanent injunction restraining the defendant from making or causing any alterations or additions of any kind to the suit schedule mentioned portion in any manner, .(c) a permanent injunction restraining the defendant from using or putting the suit schedule mentioned portion for any other purpose or user, other than "Appalam cum biscuit" shop business." 4. The respondents herein also filed the following three applications seeking the respective reliefs as under: "I.A.No.10904 of 2008: To pass an order of interim injunction restraining the respondent from subletting the suit schedule mentioned portion or transfer the tenancy right in respect thereof to anyone either directly, or indirectly by inducting any third party as partner in the business, till the disposal of the above suit." "I.A.No.10905 of 2008: To pass an order of interim injunction restraining the respondent from making or causing any alterations or additions of any kind to the suit schedule mentioned portion in any manner, till the disposal of the above suit." "I.A.No.10906 of 2008: To pass an order of interim injunction restraining the respondent from using or putting the suit schedule mentioned portion for any other purpose or user, other than Appalam cum biscuit shop business, till the disposal of the above suit." 5. It so happened that caveat was filed by the revision petitioner herein before the lower Court. However, without ordering notice, ex parte interim injunction was ordered. After entering appearance, the revision petitioner herein raised objection as to non-issuance of notice before ordering ex parte injunction. The revision petitioner herein filed counter in all the applications and after hearing both sides, the lower Court on merits ordered all the three applications. However, without ordering notice, ex parte interim injunction was ordered. After entering appearance, the revision petitioner herein raised objection as to non-issuance of notice before ordering ex parte injunction. The revision petitioner herein filed counter in all the applications and after hearing both sides, the lower Court on merits ordered all the three applications. Being aggrieved by and dissatisfied with the common order in all those three applications, these three revision petitions have been focussed. 6. The learned counsel for the revision petitioner, placing reliance on the grounds of revision would develop his argument to the effect that at the first instance, the lower Court was not justified in simply ignoring the caveat filed by the revision petitioner citing the fourth respondent herein as the person who might file the suit and obtain ex parte order. However the lower Court without considering it, pass orders in merits. The learned counsel for the revision petitioner also advanced arguments in support of his three revision petitions. 7. Whereas, the learned counsel for the respondents/landlord herein would advance his argument to the effect that at the first instance, by virtue of Order 43 Rule 1(r), no revision could straightaway be filed in this matter, as an appeal is contemplated. He also advanced his argument on the merits of the case in support of the respondents. 8. When all said and done, considering pro et contra, in this factual matrix, I am of the considered opinion that the point relating to the maintainability of the civil revision petitions should necessarily be taken into consideration, as otherwise, it would be a precedent for the litigants to file C.R.Ps. ignoring order 43 Rule 1(r) of C.P.C. 9. It is a trite as well as a common or garden principle of law that once appeal remedy is available, as against an order, a revision cannot be filed. While holding so, I am fully aware of the trite proposition of law that if the lower Court passes an order throwing to winds all norms of procedural safeguards and without adhering to the procedure contemplated under the law in toto, then straightaway civil revision petition could be filed. 10. The learned counsel for the petitioner herein would submit that since the lower Court ignoring the caveat filed by the revision petitioner, granted ex parte order, he thought it fit to file the revisions perhaps straightaway. 11. 10. The learned counsel for the petitioner herein would submit that since the lower Court ignoring the caveat filed by the revision petitioner, granted ex parte order, he thought it fit to file the revisions perhaps straightaway. 11. In this factual matrix, I am of the considered view that the common order passed by the lower Court was after hearing both sides on merits and in such a case, the plaintiff/revision petitioner should have preferred C.M.As before the appellate Court concerned and directly revision petitions are not maintainable. It is also worthy to note that the revisions are not focussed as against the ex parte interim order obtained by the respondents. However, I would like to place on record that the ex parte order of injunction passed by the lower Court is having no legs to stand and to that much extent, in all these civil revision petitions I would like to set aside the same and no enforcement of such ex parte order would lie in future. However, relating to the common order passed after hearing both sides on merits the only remedy is to file appeal. The time taken for prosecuting these revision petitions shall be excluded from computing the period of limitation for filing appeals. Accordingly, these civil revision petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.