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2012 DIGILAW 3950 (MAD)

Sekar @ Chandrasekaran v. Kamalaveni

2012-09-20

M.VENUGOPAL

body2012
Judgment :- The Petitioner/Plaintiff has focussed the present Civil Revision Petition as against the order dated 18.08.2009 in I.A.No.108 of 2009 in O.S.No.370 of 2005 passed by the Principal District Munsif, Mayiladuthurai. 2. The trial Court viz., the Principal District Munsif, Mayiladuthurai, while passing the orders in I.A.No.108 of 2009 in O.S.No.370 of 2005 on 18.08.2009, has, among other things, observed that 'The contention by the Respondents that this Court becomes 'functus officio' is acceptable. The petitioner claimed that M.P.No.1/2007 in S.A.No.552/2007 filed to suspend the decree and judgment was dismissed. This alone could not be a ground seeking the relief of police protection before this Court. The petitioner also did not make out a case warranting immediate and absolute urgency to interfere and to pass an order in his favour. The petition was taken on file on 25.3.2009. Counter filed on 17.7.2009. Heard on 10.8.2009. The Second appeal also in the stage of final decision. There is chance if any order is passed in this petition it may become contrary to the decision of High Court of Judicature. Hence this Court is of considered opinion that there is no case made out by the petitioner to enforce inherent power under Section 151 C.P.C.' and consequently, dismissed the application without costs. 3. The Learned Counsel for the Petitioner urges before this Court that the trial Court has not appreciated of the fact that the Petitioner/ Plaintiff filed O.S.No.370 of 2005 seeking the relief of permanent injunction and the said suit has been decreed on 23.11.2006 by the First Appellate Court in A.S.No.83 of 2006 on the file of the Principal Sub Court, Mayiladuthurai and as such, the Respondents/Defendants cannot interfere with the Petitioner/Plaintiff's possession and enjoyment of the suit property. 4. Advancing his arguments, the Learned Counsel for the Petitioner/Plaintiff projects a legal argument that the trial Court has ascribed an irrelevant reason while dismissing I.A.No.108 of 2009 to the effect that 'There is chance if any order is passed in this petition it may become contrary to the decision of the High Court of Judicature etc.' and indeed, this Court has dismissed M.P.No.1 of 2007 on 03.09.2007 wherein the Respondents/Defendants have prayed for suspension of the injunction decree granted by the First Appellate Court in A.S.No.83 of 2006 and consequently, in law, the Petitioner/ Plaintiff's possession is to be protected. 5. 5. Yetanother submission of the Learned Counsel for the Petitioner/Plaintiff is that the Respondents/Defendants are preventing the Petitioner/Plaintiff from running his business in the suit property notwithstanding the decree passed in A.S.No.83 of 2006 and as such, I.A.No.108 of 2009 filed by the Petitioner/Plaintiff ought to have been allowed. 6. Lastly, it is the contention of the Learned Counsel for the Petitioner/Plaintiff that it is for the trial Court to grant Police aid/ protection when the decree for permanent injunction is either disobeyed or possession of the Petitioner/Plaintiff is sought to be disturbed or interfered with. 7. Per contra, it is the submission of the Learned Counsel for the Respondents/Defendants that the suit O.S.No.370 of 2005 filed by the Revision Petitioner/Plaintiff seeking the relief of permanent injunction has been dismissed by the trial Court at the first instance and in A.S.No.83 of 2006 filed by the Revision Petitioner/Plaintiff, the Judgment and Decree in O.S.No.370 of 2005 has been reversed and as against the Judgment and Decree dated 23.11.2006 in A.S.No.83 of 2006, Second Appeal No.552 of 2007 has been preferred by the Respondents/Defendants and as on date, the same is admittedly pending before this Court. 8. At this stage, the Learned Counsel for the Petitioner/Plaintiff cites the Division Bench Judgment of this Court in Sri-la-Sri Sivasubramanyananda Swami V. Sri-la-Sri Arunachalasamy Chidambaram and another, 1993-Vol.1-M.L.J.-274, whereby and whereunder it is held as under: "Section 151 of the Civil Procedure Code confers power to make such orders as may be necessary for the ends of justice or to prevent abuse of process of court. Every court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo the wrong in the course of the administration of justice." 9. Every court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo the wrong in the course of the administration of justice." 9. It is not out of place for this Court to point out that the Petitioner/Plaintiff, in his affidavit in I.A.No.108 of 2009, has specifically averred that in view of the favourable Judgment in A.S.No.83 of 2006 passed by the First Appellate Court wherein a decree of permanent injunction has been granted, he is making endeavours to conduct his business once again and the Respondents/ Defendants are ready to create trouble and also that on numerous occasion, complaints have been lodged before the Police, but they have not taken action properly and further that without the assistance of Police and on the basis of the Court Judgment, he cannot conduct his business and if he is not able to conduct his business, then, it will be very difficult for him to sustain himself. 10. Further, in the counter filed by the 2nd Respondent, it is categorically stated that the Second Appeal No.552 of 2007 has been taken on file before this Court and the same is pending. Also, in S.A.No.579 of 2007 filed against one S.K.Murthi, a Judgment has been delivered by this Court on 05.08.2008 wherein the plea of the Respondents/Defendants have been accepted and it has been found that the suit property is not in possession of one S.K.Murthi etc. 11. As far as the present case is concerned, admittedly S.A.No.552 of 2007 is pending before this Court as against the Judgment and Decree dated 23.11.2006 in A.S.No.83 of 2006 by the First Appellate Court. Even though, the Learned Counsel for the Respondents/Defendants submits that the facts related to O.S.No.370 of 2005 are interlinked with that of subject matter in issue in S.A.No.579 of 2007 (arising out of O.S.No.371 of 2005), this Court is not entering into the merits of the matter in the present Civil Revision Petition, for the simple reason that the trial Court after passing of the decree in O.S.No.370 of 2005 has not become functus officio. Moreover, it is to be taken note of that M.P.No.1 of 2007 in S.A.No.552 of 2007 filed by the Respondents/Defendants to suspend the Decree and Judgment of the First Appellate Court in A.S.No.83 of 2006 dated 23.11.2006 has been dismissed by this Court on 03.09.2007. 12. On going through the order of the trial Court in I.A.No.108 of 2009 in O.S.No.370 of 2005, this Court opines that the trial Court has not adverted to the merits and demerits of the averments and counter averments made by the respective parties at the time of passing of the order. Furthermore, the order of the trial Court, in dismissing the Interlocutory Application, is bereft of qualitative and quantitative reasons. In short, there is no clarity of reasoning assigned by the trial Court, while dismissing the Interlocutory Application. To put it succinctly, there is no outline of process of reasoning in the order passed by the trial Court in I.A.No.108 of 2009, as opined by this Court. 13. It is needless to state that a non-speaking order may be just order from the point of view of a Court of Law while deciding the matter. But, to an aggrieved person, an order passed without ascribing necessary reasons will enable him to come within the ambit and purview of 'as an aggrieved person'. In any event, since the trial Court, while dismissing I.A.No.108 of 2009, has not gone into the merits and demerits of the matter in issue, this Court, to prevent an aberration of justice, allows the Civil Revision Petition without costs. 14. In the Result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Resultantly, the order passed by the trial Court in I.A.No.108 of 2009 is set aside, in the interest of justice. Further, the trial Court is directed to restore I.A.No.108 of 2009 to its file and also directed to dispose of the said I.A., after affording adequate opportunities to both parties, within a period of one month from the date of receipt of copy of this order. It is open to the respective parties to raise all factual and legal pleas before the trial Court at the time of deciding I.A.No.108 of 2009 The trial Court is also directed to pass a dispassionate order in the Interlocutory Application, uninfluenced with any of the observations made by this Court in this Revision.