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2018 DIGILAW 547 (AP)

Gaddeppa v. Bheemanna

2018-07-31

U.DURGA PRASAD RAO

body2018
ORDER : U. Durga Prasad Rao, J. 1. In this civil revision petition, the petitioners/defendants seek to set aside the order dated 22.12.2017 in IA No. 482 of 2017 in OS No. 141 of 2016 passed by the Senior Civil Judge, Gadwal. 2. The parties in this revision are referred as they were arrayed before the trial Court. 3. The respondents 1 to 5 herein/plaintiffs filed the suit for declaration of title wherein they filed IA No. 865 of 2016 for temporary injunction. The trial Court by order dated 24.11.2016 granted ad interim injunction. The defendants did not choose to file counter and therefore, the trial Court made the ex-parte ad interim injunction order absolute. When the injunction order was in force, on 30.11.2016, the defendants tried to interfere with the suit land and did not allow the plaintiffs to cultivate the suit lands. Therefore, the plaintiffs filed IA No. 482 of 2017 seeking police aid. 4. The defendants opposed the petition contending that the suit schedule lands were partitioned by their ancestors long back and therefore, plaintiffs and defendants were having half share each but the revenue record shows that the suit lands stand in the name of plaintiffs' father-Chinna Mallaiah. While-so, the defendants approached the revenue authorities and filed an application to conduct enquiry. On which the Tahsildar, Ghattu Mandal conducted enquiry and concluded that defendants have not mutated their lands in their favour and recommended to apply for mutation. 5. The trial Court in its order dated 22.12.2017 in IA No. 482 of 2017 while granting police aid to the plaintiffs, made the ad interim injunction granted in IA No. 865 of 2016 as absolute. Hence the instant CRP by defendants. 6. Heard arguments of Sri A. Ravi Babu, learned Counsel for petitioners and Sri Y. Hema Chancier, learned Counsel for respondent Nos. 1 to 5. 7. The main grievance of the petitioners/defendants is that in OS No. 141 of 2016 and in IA No. 865 of 2016, they were set ex parte on 13.3.2017 for non-filing of written statement and counter and thereafter they filed IA Nos. 234 and 235 of 2017 to set aside the ex parte order in the main suit and also ex parte order in IA No. 865 of 2016 and they have also filed written statement and counter and those petitions are pending for enquiry. 234 and 235 of 2017 to set aside the ex parte order in the main suit and also ex parte order in IA No. 865 of 2016 and they have also filed written statement and counter and those petitions are pending for enquiry. In the meanwhile, the respondents/plaintiffs filed IA No. 482 of 2017 for police aid as if the petitioners/defendants were meddling with the suit property. The petitioners filed counter and opposed the said petition. Instead of deciding the ex parte set aside petitions, the trial Court decided IA No. 482 of 2017 and granted not only the police aid but also made the interim injunction absolute, which is illegal. This Court on perusal of the record, finds force in the above submission. The order in IA No. 482 of 2017 reads that the trial Court while granting police aid also made the interim injunction granted in the IA No. 865 of 2016 absolute, while the petitions to set aside the ex parte order in the suit as well as in IA No. 865/2016 are pending. As can be seen from the copy of the written statement and counter in LA No. 865 of 2016, the plaintiffs and defendants are cousins and the defendants are claiming share in the suit schedule properties. Their case is that the fathers of the plaintiffs and defendants have partitioned, still the suit properties are recorded in the name of father of plaintiffs against which, the defendants made an application before the concerned Tahsildar and the enquiry is pending. It is a suit for declaration and perpetual injunction, wherein the valuable rights of the parties are at stake. In that view, the trial Court ought to have first decided the ex parte set aside petitions filed by the petitioners/defendants before embarking upon deciding the police aid application. However, the trial Court committed a grave error in granting police-aid which is a drastic relief. Therefore, the order impugned suffers the vice of perversity. 8. In the result, this C.R.P. is allowed and the order dated 22.12.2017 in IA No. 482 of 2017 in OS No. 141 of 2016 is set aside and the trial Court is directed to decide the IA Nos. 234 and 235 of 2017 filed by the petitioners/defendants to set aside the ex parte orders on merits expeditiously. 9. As a sequel, miscellaneous petitions pending, if any, shall stand closed.