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2012 DIGILAW 3238 (MAD)

Kadai Abdullah v. S. Shanthi

2012-07-24

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the orders passed (i) in E.A.Nos.209 and 210 of 2011 in E.P.No.180 of 2003 in S.S.No.775 of 1995 dated 29.09.2011 by the learned Subordinate Judge, Chengalpattu and (ii) in I.A.No.310 of 2011 in O.S.No.639 of 2006 dated 27.01.2012 passed by the learned Principal District Munsif, Alandur, these civil revision petitions are focussed. 2. A thumbnail sketch of the germane facts in a few broad strokes, could be encapsulated thus: (i) In E.P.No.180 of 2003 before the learned Subordinate Judge, Chengalput, the immovable property described therein was brought for sale. According to Shanthi, the second revision petitioner in CRP No.2378 of 2012, who is the first respondent in CRP Nos.1796 and 1797 of 2012, she is the successful bidder of the property mentioned in the E.P. Accordingly, she got a sale certificate and ultimately obtained delivery of possession through Court on 15.05.2006. The delivery also was recorded and the E.P. proceedings got terminated. Thereafter, on 28.09.2006 the revision petitioners in CRP Nos.1796 and 1797 of 2012 filed the suit O.S.No.639 of 2006 before the District Munsif Court, seeking the following reliefs: "(a) For permanent injunction restraining the defendants, their men, agents, servants or any other person or persons claiming through them from in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the suit 'A' and 'B' schedule properties or in any manner trespassing into the suit 'A' and 'B' schedule properties; and (b) For costs." (extracted as such) (ii) Despite service of suit summons, Shanthi remained ex parte. Whereupon owing to the default of the plaintiffs in O.S.No.639 of 2006, the suit itself was dismissed for default. Subsequently, I.A.No.310 0f 2011 was filed by the plaintiffs therein to get the suit restored. After hearing both sides, the Principal District Munsif, Alandur allowed the application, restoring the said suit. 3. Being aggrieved by and dissatisfied with the said order, CRP No.2378 of 2012 has been filed on various grounds. 4. In the meanwhile, it so happened that the said Shanthi who happened to be the auction purchaser filed two applications, viz., E.A.Nos.209 and 210 of 2011, before the Additional Subordinate Judge, Chengalput with the following prayers, "E.A.No.209 of 2011: To grant ad-interim injunction restraining the fourth respondent from registering the case against me, in respect of the schedule mentioned property without the leave and permission of this Court. E.A.No.210 of 2011: To grant ad-interim injunction restraining the third respondent, their men, agents and anybody claiming through or under him from interfering with the lawful ownership, possession, occupation and enjoyment of the petitioner in and over the immovable property morefully and particularly described in schedule thereunder except with the due process of law." (extracted as such) on the main ground that even though the Court after confirming the sale and issuing the sale certificate, delivered possession of the suit property to Shanthi, the plaintiffs in O.S.No.639 of 2006 attempted to trespass into the suit property and give trouble to her and over and above that, they also approached the police with complaint, so as to dispossess her of the property, which was delivered to her by the Court. Whereupon the Court passed orders in both the applications, the operative portion of them would run thus: " E.A.No.209 of 2011: Decreetal Order 1. That the interim injunction already granted restraining the 4th respondent from registering the case against the petitioner in respect of the schedule mentioned property without the leave of this Court be and is hereby made absolute. 2. That there is no costs." "E.A.No.210 of 2011: ....... ........ .......... Paper Publication effected for R1 to R3. Served & called absent. Set exparte. E.A.209/11 allowed. The Ad-interim injunction restraining the Respondents their men, agents and anybody claiming through or under him from interfering with the lawful ownership, possession, occupation and enjoyment of the petitioner and over the Schedule mentioned property is granted. No costs." 5. Being aggrieved by and dissatisfied with the said order passed by the learned Additional Subordinate Judge, Chengalput, CRP Nos.1796 and 1797 of 2012 are focussed on various grounds. 6. Heard both sides. 7. The learned counsel for the second revision petitioner/Shanthi in CRP No.2378 of 2012, who is the first respondent in CRP Nos.1796 and 1797 of 2012, would pyramid his arguments, which could pithily and precisely be set out thus: (a) The Court which happened to be the guardian of protecting the rights of the citizens, appropriately and appositely responded to the two applications filed by Shanthi and passed such equitable and just orders, warranting no interference. (b) The lady Shanthi was helpless when police harassed her and hence, she contacted her Advocate and through her Advocate, she filed such applications and the Court after issuing notice to the four respondents cited therein, passed the order and that too when the said four respondents remained absent. As per Section 94 CPC read with Section 151 of CPC, the Court had ample powers to pass such orders, which cannot be found fault with. (c) The revision petitioners in CRP NPD Nos.1796 and 1797 of 2012, filed the suit vexatiously with the aforesaid prayers and subsequently got the plaint amended as though pendentelite there was trespass into the 'B' scheduled property by the said Shanthi and her men and that a hut was put up there. An order of interim injunction was obtained ex parte by the plaintiffs in O.S.No.639 of 2006. As such, the said Shanthi who entered into the property legally under the strength of the Additional Sub Court's orders should not be made to suffer for no fault of her. (d) The defendants in the said suit have to file the written statement also and they are having the right to petition the Court for getting the injunction vacated, because Shanthi is in possession and enjoyment of the suit property and the property also has to be identified by the lower Court and the alleged Power of Attorney representing the plaintiffs in O.S.No.639 of 2009 are not entitled to prosecute the matter. There is nothing to indicate that permission or leave was obtained for the Power of Attorney to appear and there is no knowing of fact as to how many power of attorneys are there for the plaintiffs in O.S.No.639 of 2006. (e) Even though belatedly the application under Order IX Rule 9 of CPC was filed apparently in time, that was not moved for a pretty long time and belatedly they got the order, warranting interference in the revision. Accordingly, the learned counsel for Shanthi would pray for the dismissal of CRP Nos.1796 and 1797 of 2012 and for allowing CRP No.2378 of 2012. 8. Accordingly, the learned counsel for Shanthi would pray for the dismissal of CRP Nos.1796 and 1797 of 2012 and for allowing CRP No.2378 of 2012. 8. In a bid to extirpate and torpedo the arguments as put forth and set forth on the side of the revision petitioner/Shanthi, the learned counsel for the revision petitioners in CRP Nos.1796 and 1797 of 2012, would pyramid his argument, which could pithily and precisely be set out thus: (a) The Additional Subordinate Judge, Chengalput virtually had no jurisdiction at all after the termination of E.P. to pass such impugned two orders in favour of Shanthi and ex facie and prima facie, those orders have to be set aside. (b) The suit was dismissed for default and it was subsequently restored because the Court felt that the Power of Attorney who was responsible for conducting the case was suffering from jaundice, warranting no interference. Accordingly, the learned counsel would pray for the dismissal of CRP No.2378 of 2012. 9. The points for consideration are as to: (1) Whether the Additional Subordinate Court, Chengalput had jurisdiction to pass the impugned orders, after termination of such E.P.? (2) Whether there is any illegality or perversity in restoring the suit, by accepting the averments as found set forth in the affidavit accompanying the application for getting the suit restored under Order IX Rule 9 of CPC? 10. Both the points are taken together for discussion as they are inter linked and inter woven with each other. 11. After the termination of the E.P., the Executing Court cannot deal with the matter which it already dealt with and disposed of. Here indubitably and indisputably, the case of Shanthi is that she after taking delivery from the Court, started enjoying the property independently and she had also put up the compound wall and a gate and enjoying it; while so, holus bolus, the power of attorney of the revision petitioners in 1796 and 1797 of 2012, with his men attempted to trespass into the suit property and over and above that they also resorted to the help of the police to forcibly dispossess the said Shanthi, who was helpless. In my considered view if really Shanthi was affected by such attempted trespass by the power of attorney of the plaintiffs, the remedy for her was to approach the civil Court by initiating fresh proceedings or if the suit O.S.No.639 of 2006 was pending at that time, as a defendant, she could have approached the said Court for getting injunction so as to retain her possession. 12. The learned counsel for Shanthi would submit that she could have very well as a defendant in the suit sought for injunction to protect her possession, had the suit been pending, but the suit was allowed to be dismissed for default by the plaintiffs therein. Hence, she had no option, but to approach the same executing Court namely Additional sub Court. Be that as it may, now the law on the point has to be visualised and accordingly, the law should get itself vindicated. Circumstances might have made Shanthi to approach the very same Executing Court for seeking relief, but it has to be seen in an unbiased way, as to whether the Executing Court had the jurisdiction and competence to deal with the matter. Here it is a case where the successful bidder who obtained possession through Court, complains that a third party to the proceedings unconnected with the E.P. started disturbing her possession. In such a case, I am of the considered view that the Civil Court, Chengalput was not justified in passing such orders and that too to the effect that police should not interfere with such matters. It is a trite proposition of law, no doubt that civil cases should not be converted into criminal cases. 13. The learned counsel for the revision petitioners in CRP Nos.1796 and 1797 of 2012, would disown knowledge about the complaint given by his client to the police during the year 2011. But the learned counsel for Shanthi by inviting the attention of this Court to page No.46 of his typed set, would point out that having allowed the suit filed by them dismissed, they in order to short cut the whole procedure, approached the police. I would in unmistakable terms condemn such sort of seeking police help in pending civil matters. Whatever be the result in civil case, the party should take up the matter to the higher forum or fora. I would in unmistakable terms condemn such sort of seeking police help in pending civil matters. Whatever be the result in civil case, the party should take up the matter to the higher forum or fora. In this case, no doubt the entire suit was dismissed for default of the plaintiffs therein and they had also taken steps to get it restored. They should have proceeded with that matter and got appropriate interim orders. Similarly the said Shanthi who was arrayed as a defendant, should necessarily approach the same Civil Court, which is Alandur Munsif Court and get suitable orders. No doubt in this case, ex parte interim injunction was already obtained by the plaintiffs therein and the fact remains that it was an ex parte one. It is open for, as stated by the learned counsel for Shanthi/defendant in the suit, to petition the Court Order XXXIX Rule 4 of CPC for getting vacated the injunction. Accordingly, it is the Principal District Munsif Court, Alandur, which is competent to give a finding, while passing order, as to who is in possession and accordingly pass suitable orders. 14. Regarding identity is concerned, lot of arguments emerged. I am of the considered view that the same Principal District Munsif Court, Alandur is competent to appoint an Advocate Commissioner at the request of either of the parties to visit the suit property with the assistance of a Surveyor and measure it with reference to revenue records and the documents of both sides. 15. The learned counsel for Shanthi also would submit that by paying meagre Court fee, the plaintiffs therein filed the suit in O.S.No.639 of 2006, and that plea she could raise in her written statement. When this Court raised the querry as to whether the written statement was filed in the suit by Shanthi and her husband, the learned counsel would submit that they are well within the time to file a written statement. Be that as it may, if there is delay they shall file an application for condonation of delay in filing the written statement, as otherwise, straightaway they could file the written statement raising all pleas; whereupon the Alandur Court should deal with the matter giving importance without leaving parties to fight in the street and to approach the police unnecessarily to thwart the course of civil proceedings. Accordingly, CRP Nos.1796 and 1797 of 2012 are ordered setting aside the order of the learned Additional Subordinate Judge, Chengalput and CRP No.2378 of 2012 for restoration stands dismissed with observation as above. The trial Court shall do well to see that the interim applications are disposed of within a period of two months and the suit is disposed of within a period of four months from the date of receipt of a copy of this order. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. Report of compliance shall be submitted to the High Court.