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2012 DIGILAW 201 (AP)

Adari Simhachalam v. Vasarapu Siva Prasad

2012-02-23

C.V.NAGARJUNA REDDY

body2012
Judgment : This civil revision petition is filed against order, dated 20.01.2012, in E.P.No.81 of 2009 in O.S.No.65 of 2002, on the file of the learned Junior Civil Judge, Prathipadu. The petitioners filed the above-noted suit. In the said suit, they secured an order of interim injunction. Eventually, the said suit was dismissed. Prior to the filing of the suit by them, the respondent-defendant filed O.S.No.140 of 1990 for recovery of possession of the suit schedule property. The said suit was decreed. In E.P.No.67 of 2000, possession was delivered to the respondent by the bailiff with police-aid. The respondent-defendant filed E.P.No.81 of 2009 in O.S.No.65 of 2002 under Section 144 of CPC seeking restitution of the petition schedule property. It is his pleaded case that the petitioners suppressed the fact of his filing the suit, obtaining decree and delivery of possession, and obtained an order of interim injunction in the guise of which, they have re-occupied the suit schedule property. The respondent has therefore sought for restitution by way of re-delivery with the dismissal of the suit filed by the petitioners. The petitioners have resisted the said application by putting forth a two-fold plea, namely, that the suit schedule property is different and distinct from the property covered by O.S.No.140 of 1990 and that in any event, the ingredients of Section 144 CPC are not satisfied. The lower Court has rejected both these objections and granted relief as claimed by the respondent. I have heard Sri T.V.S.Prabhakara Rao, learned counsel, representing Sri P.Govind Reddy, learned counsel for the petitioners. As regards the first plea of the petitioners, namely, that the suit schedule properties are different and distinct, the lower Court has relied upon the judgment and decree in O.S.No.65 of 2002, which was marked as Ex.P1, wherein it is categorically found that the properties mentioned in both the suits are one and the same. As regards the plea relating to non-application of Section 144 CPC, the lower Court has accepted the said plea by stating that Section 144 CPC in terms will not apply, but having regard to the fact that the petitioners have re-entered the property in the guise of the interim injunction order passed in O.S.No.65 of 2002, the Court is empowered to put the defendant back in the same position as he would have been but for the grant of interim injunction. Having carefully considered the reasons of the lower Court, I am entirely in agreement with the same. This is a case where the maxim "Actus Curiae Neminem Gravabit" i.e., an act of the Court shall prejudice no man, squarely applies. It is not in dispute that the respondent was delivered possession of the property in O.S.No.140 of 1990. But for the injunction order, the petitioners would not have reoccupied the property. Therefore, the respondent has suffered as a consequence of the interim injunction order passed in O.S.No.65 of 2002. The judgment and decree dismissing the said suit has attained finality. Therefore, it is the duty and obligation of the Court to put the respondent in the same position as he would have been but for the interim injunction granted by the Court. Section 151 of CPC which vests inherent power is certainly intended to remedy injustice caused in situations such as this and even if the provisions of Section 144 CPC may not in terms apply, the Court is still empowered under Section 151 CPC to restore the respondent to his original position. For the above-mentioned reasons, I do not find any illegality or jurisdictional error in the order of the lower Court. Accordingly, the civil revision petition is dismissed. As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.1164 of 2012 shall stand disposed of as infructuous.