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2011 DIGILAW 3385 (MAD)

Pandian (Deceased) v. Rajamanickam

2011-07-22

M.VENUGOPAL

body2011
JUDGMENT :- 1. The Revision Petitioners/Defendants have filed the present civil revision petition as against the order dated 09.10.2009 in I.A.No.1288 of 2009 passed by the Learned I Additional District Munsif, Salem. 2. The Respondents/ Plaintiffs have filed the suit in O.S.No.894 of 2009 on the file of the trial Court and on 09.10.2009 in I.A.No.1288 of 2009 an interim exparte injunction has been granted in favour of the Respondents/ Plaintiffs and against the Revision Petitioner/ Defendants. 3. It is the case of the Revision Petitioners/ Defendants that an exparte injunction in I.A.No.1288 of 2009 has been granted on 09.10.2009 till 23.10.2009. The civil revision petition has been filed by the Revision Petitioners/ Defendants on 23.10.2009. It is also brought to the notice of this Court that after filing the civil revision petition, the Revision Petitioners/ Defendants have filed the counter before the trial Court in I.A.No.1288 of 2009 on 17.11.2009. 4. Admittedly, the Respondents/ Plaintiffs have filed the instant O.S.No.894 of 2009 on the file of the trial Court praying for the relief of injunction restraining the Defendants and their men from in any manner interfering with their peaceful possession and enjoyment of the suit property. 5. Learned counsel for the Revision Petitioners/ Defendants invites the attention of this Court to paragraph-4 of the plaint in O.S.No.894 of 2009 wherein it is averred as follows: "The Plaintiffs submit that the defendants are the neighbours on the northern side of the suit property. There is a road which divides the suit property and the property of the Defendants 1 and 2. The Defendants 1 and 2 had already filed a suit in O.S.No.529 of 1996 on the file of the District Munsif, Salem against the Plaintiffs for declaration and permanent injunction with regard to their property situated on the northern side of the road. The said suit was tried on merits and the suit was dismissed. The Defendants 1 and 2 preferred an Appeal in A.S.2 of 2001 on the file of the III Additional District Judge, Salem against the decree and judgment in O.S.No.529 of 1996. After the arguments, the appeal was partly allowed and partly dismissed declaring that the Defendants 1 and 2 are entitled to only 19 cents of land in S.No.91/9 of Sivadhapuram Village, Salem Taluk, which is situated on the northern side of the road. After the arguments, the appeal was partly allowed and partly dismissed declaring that the Defendants 1 and 2 are entitled to only 19 cents of land in S.No.91/9 of Sivadhapuram Village, Salem Taluk, which is situated on the northern side of the road. Thus it is very clear that the suit property which is situated on the southern side of the east-west road does not belong to the Defendants 1 and 2. The Plaintiffs submit that the Defendants 1 and 2 have preferred the 2nd appeal before the High Court of Judicature at Madras in S.A.No.986 of 2003 against the decree and judgment of Appellate Court which is pending. The 1st Defendant is the son of the 2nd Defendant, 3rd Defendant is the son-in-law of the 1st Defendant, the 4 and 5 Defendants are the sons of the 1st defendant. Now the Defendants have joined together and seemed to have executed a power of attorney deed in favour of the 6th Defendant with respect to the suit property and the 6th Defendant in turn seemed to have executed a agreement in favour of the 7th Defendant on 01.10.2009. The Defendants 1 to 6 along with their henchmen came to the suit property on 25.09.2009 and tried to evict the Plaintiffs by force. At the time the 1st Defendant had hit the 3rd Plaintiff's wife with a spade and caused injury. Even though, the Plaintiffs reported the matter to the police, the police did not take any action. Now on 07.10.2009 the Defendants 1 to 7 again came with their henchmen tried to evict the Plaintiffs by force. But due to the timely help of the neighbours the Plaintiffs were able to thwart the Defendants and their men. While going out the defendant proclaimed that at any costs they will evict the Plaintiffs by force and police support. The Plaintiffs submit that the defendants are powerful persons having men and money power. In these circumstances, unless an order of injunction is granted against the Defendants, the Plaintiffs will be put to great hardship and loss." 6. It is not in dispute that S.A.No.986 of 2003 filed by the Defendants 1 & 2 is pending before this Court as against the judgment and decree of A.S.No.2 of 2001 on the file of the Learned III Additional District Judge, Salem as against the judgment and decree of O.S.No.529 of 1996. 7. It is not in dispute that S.A.No.986 of 2003 filed by the Defendants 1 & 2 is pending before this Court as against the judgment and decree of A.S.No.2 of 2001 on the file of the Learned III Additional District Judge, Salem as against the judgment and decree of O.S.No.529 of 1996. 7. The Revision Petitioners/ Defendants in regard to the granting of interim injunction in I.A.No.1288 of 2009 on 09.10.2009 by the trial Court has got the remedies of approaching the trial Court as per Order 39 Rule 4 of the Civil Procedure Code to discharge or vary or set aside the interim order granted by it or in the alternative to prefer an appeal as per Order 43 Rule 1 (r) of the Civil Procedure Code. Admittedly, the two remedies are concurrent. It is ascertained from the Learned Counsel for the Revision Petitioners/ Defendants that the Revision Petitioners/ Defendants have not filed Civil Miscellaneous Appeal as against the order of interim injunction granted by the trial Court in I.A.No.1288 of 2009 in O.S.No.894 of 2009 on 09.10.2009. In the absence of the Civil Miscellaneous Appeal being filed, the other remedy available to the Revision Petitioners/ Defendants in law is to vacate the interim order of injunction granted by the trial Court by resorting to Order 39 Rule 4 of the Civil Procedure Code. The Revision Petitioners/ Defendants after filing of the present civil revision petition have filed counter to I.A.No.1288 of 2009 on 17.11.2009. 8. Though the Learned Counsel for the Revision Petitioners/ Defendants contends that the present civil revision petition has been filed by the Revision Petitioners/ Defendants under Article 227 of the Constitution of India relating to the supervisory jurisdiction of High Court in regard to the Subordinate Courts, yet this Court is of the considered view that when the Revision Petitioners/ Defendants have got a viable alternative and effective remedy as per Order 39 Rule 4 of the Civil Procedure Code, then it is not open to the Revision Petitioners/ Defendants to approach this Court in exercise of the power under Article 227 of the Constitution of India. 9. As a matter of fact, the superintendence powers as per Article 227 of the Constitution of India has to be sparingly used by this Court and that too with care and circumspection. 9. As a matter of fact, the superintendence powers as per Article 227 of the Constitution of India has to be sparingly used by this Court and that too with care and circumspection. The said power cannot be employed in a routine manner, as opined by this Court. In that view, this Court disposes of the civil revision petition by directing the Revision Petitioners/ Defendants to approach the trial Court and the trial Court is directed to take up the I.A.No.1288 of 2009 and to dispose of the same on merits after looking into the counter and after providing due opportunity to both sides to project their arguments. In any event, the trial Court is directed to dispose of the I.A.No.1288 of 2009 completely and comprehensively within a period of three weeks from the date of receipt of copy of this order. Consequently, the connected miscellaneous petition is closed.