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2024 DIGILAW 752 (TS)

Jinkala Venkataiah v. Muppavaram Saida Chary

2024-09-13

T.VINOD KUMAR

body2024
ORDER : 1. The present Civil Revision Petition is filed aggrieved by the order dated 28.06.2024 in I.A. No. 335 of 2023 in I.A. No. 66 of 2022 in O.S. No. 80 of 2022 passed by the Additional Junior Civil Judge, at Devarakonda (for short ‘Trial Court’). 2. The petitioners herein are the petitioners in the interlocutory application and defendants in the suit filed for perpetual injunction. The Respondent herein is the plaintiff in the said suit. 3. Heard learned counsel for the petitioner, learned counsel for the respondent and perused the record. 4. Along with the suit the respondent herein had filed an interlocutory application numbered as I.A. No. 66 of 2022 under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908 (for short the ‘Code’). On hearing the application, the Trial Court vide order dated 21.02.2022 had granted an ex-parte ad-interim injunction restraining the petitioners herein from interfering with the respondent’s peaceful possession and enjoyment of the petition scheduled property till filing of the counter. The said ex-parte ad-interim injunction was extended from time to time thereafter. 5. The respondent herein thereafter filed the underlying interlocutory application vide I.A. No. 335 of 2023 under Section 151 of the Code, seeking police protection for implementation of the order dated 21.02.2022. The Trial Court on observing that the respondent herein had lodged a complaint numbered as F.I.R. No. 45 of 2023 before Gudipally Police Station, and noting its’ prima facie satisfaction that the petitioners herein were violating the order dated 21.02.2022 by interfering with the respondent’s possession and enjoyment of the suit scheduled property, allowed the underlying application. 6. The present revision is filed aggrieved by the same. 7. Learned counsel for the petitioners by drawing the attention of this Court to material filed along with the present revision contends that the finding of the Trial Court while allowing the underlying I.A. that these petitioners have failed to file their Written Statement is factually incorrect. 8. 6. The present revision is filed aggrieved by the same. 7. Learned counsel for the petitioners by drawing the attention of this Court to material filed along with the present revision contends that the finding of the Trial Court while allowing the underlying I.A. that these petitioners have failed to file their Written Statement is factually incorrect. 8. Learned counsel for the petitioners further contended that as these petitioners were set ex-parte by the Trial Court in I.A. No. 66 of 2022, they had filed an interlocutory application numbered as I.A. No. 477 of 2023 under Order 9 Rule 7 of the Code seeking to set-aside the same; that the finding of the Trial Court that the petitioners had not filed their counter in the underlying application was erroneous as they could not have filed their counter when they were set ex-parte and thus, the Trial Court had erred in deciding the underlying application when I.A. No. 477 of 2023 was still pending adjudication. 9. Per contra, learned counsel for the respondent contends that the petitioners herein have not challenged the order dated 21.02.2022 passed in I.A. No. 66 of 2024 granting ad interim injunction, till date, and thus, the petitioners having accepted the said order could not challenge the impugned order which is only ancillary to the order passed in I.A. No. 66 of 2024. 10. It is further contended that the petitioners are trying to delay the adjudication of I.A. No. 66 of 2024 and that the same can be observed in their action of consciously not filing their counters till date in I.A. No. 66 of 2024 and also to the underlying application, despite the Trial Court granting as many as seven (7) adjournments for the said purpose. The respondent further contended that the petitioners by filing I.A. No. 477 of 2023 are seeking to set-aside the order by which they were ex-parte and preferring the present revision with an intention to set the clock back are all to be viewed as delay tactics. 11. I have taken note of their respective contentions. 12. The respondent further contended that the petitioners by filing I.A. No. 477 of 2023 are seeking to set-aside the order by which they were ex-parte and preferring the present revision with an intention to set the clock back are all to be viewed as delay tactics. 11. I have taken note of their respective contentions. 12. At the outset the finding of the Trial Court in the impugned order with respect to non-filing of written statement appears to be factually incorrect, as a certified copy of the Written Statement issued by the Trial Court is filed along with the material papers annexed to the present revision shows the same having been filed on 22.07.2022. 13. The suit in the present case was filed on 19.02.2022. Subsequently, the Trial Court had granted an ex-parte ad-interim injunction against the petitioners herein vide order dated 21.02.2022 in I.A. No. 66 of 2022. A perusal of the order dated 21.02.2022 reveals that the said protection was granted to the respondent herein till the petitioners herein filed their counter. However, from a perusal of the record and the impugned order it appears that the petitioners herein did not file their counter to I.A. No. 66 of 2022 even till the underlying application was filed on 21.08.2023. On noticing the same these petitioners were set ex-parte by the Trial Court on 22.08.2023. Thereafter, the matter was being adjourned for adjudication of the underlying application seeking police protection. 14. The impugned order categorically records that as the respondents herein had failed to file their counter to the underlying application despite granting seven (7) adjournments, their right to file counter was forfeited on 19.10.2023. Even though right of the petitioners to file counter to the underlying application was forfeited, no order was passed therein immediately till the order came to be passed on 28.06.2024. On the other hand, the Record indicates that on 21.11.2023 the petitioners herein had filed I.A. No. 477 of 2023 under Order 9 Rule 7 of the Code, seeking to set aside the order dated 22.08.2023 i.e. the order under which they were set ex-parte in I.A. No. 66 of 2022. 15. Admittedly, I.A. No. 477 of 2023 is pending consideration. 15. Admittedly, I.A. No. 477 of 2023 is pending consideration. On the date the impugned order was passed, the trial Court could not have proceeded with adjudication of the underlying application without deciding the application filed under Order 9 Rule 7 of the Code as at a later date even if said application is allowed, the petitioners would be required to file another application seeking to set aside the order passed in underlying application. The net effect of the above said course of action would result in multiplicity of interlocutory application being filed. Instead the Court should have taken up the adjudication of I.A. No. 477 of 2023 filed to set aside the order dated 22.08.2023 in I.A. No. 66 of 2022 and pass order therein by examining as to whether the petitioners have made out any case or not and then decide the application filed for granting police protection in furtherance of order dated 22.08.2023. Therefore, this Court is of the view that deciding the underlying application without deciding I.A. No. 477 of 2023 is a procedural irregularity, which forecloses the right of the petitioners to contest the underlying application. 16. Though learned counsel for the respondent had contended that the petitioners could not challenge the impugned order having accepted the order dated 21.02.2022, admittedly the said order was passed ex-parte and a protection was initially granted till the petitioners herein had filed their counter. It is also admitted that the said interlocutory application i.e. I.A. No. 66 of 2022 is still pending adjudication. Further, as I.A. No. 477 of 2023 filed seeking to set aside the order dated 22.08.2023 setting the petitioners ex-parte, is still pending consideration before the Trial Court, it cannot be said that the petitioners herein had forfeited their right to challenge the impugned order as they had accepted the order dated 21.02.2022. 17. It is well settled that procedural laws are designed to facilitate justice, and not to frustrate the ends of justice. The Supreme Court in Kusum vs. Kanchan Devi and Others, (2005) 6 SCC 705 had held that ordinarily a party should not be denied participation in an adversarial system, unless there is express and specific mandate to that effect in the language of the statute. The relevant observations are as under: “6. All the rules of procedure are the handmaid of justice. The relevant observations are as under: “6. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justice where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence - processual, as much as substantive. [See Sushil Kumar Sen v. State of Bihar, MANU/SC/0028/1975 : (1975) 3 SCR 942 ] No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See Blyth v. Blyth, 1966 (1) All E.R. 524 (HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath and Another v. Rajesh and Others, MANU/SC/0286/1998 : (1998) 2 SCR 709 ] Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” (Emphasis supplied) 18. [See Shreenath and Another v. Rajesh and Others, MANU/SC/0286/1998 : (1998) 2 SCR 709 ] Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” (Emphasis supplied) 18. While echoing this principle in the case of Levaku Pedda Reddamma and Others vs. Gottumukkala Venkata Subbamma and Another, MANU/SCOR/54688/2022 [Civil Appeal No. 4096 of 2022 and SLP (C) No. 7452 of 2022, dated 17.05.2022] the Hon’ble Supreme Court had held that it was appropriate to impose costs in case there was a delay. 19. Therefore, this Court deems it appropriate to remit the matter to the Trail Court for consideration afresh, along with I.A. No. 477 of 2023. 20. However, taking into consideration that the conduct of the petitioners herein in not filing a counter to I.A. No. 66 of 2022 has delayed the adjudication of the said application, this Court is of the view that the prejudice caused to the respondent can be compensated by way of costs. 21. Resultantly, this Civil Revision Petition is allowed. The order dated 28.06.2024 passed in I.A. No. 335 of 2023 in I.A. No. 66 of 2022 in O.S. No. 80 of 2022 is set aside. The matter is remitted back to the Trial Court for consideration afresh and the Trial Court is directed to adjudicate I.A. No. 335 of 2023 along with I.A. No. 477 of 2023 within a period of four (4) weeks from the date of receipt of the copy of this order. The petitioners are directed to pay costs of Rs. 10,000/- (Rupees Ten Thousand Only) to the respondent herein within one week from the date of receipt of a copy of this order. 22. It is clarified that the observations made hereinabove are only for the purpose of deciding the present revision and they shall not have any bearing on the Trial Court either while deciding I.A. No. 477 of 2023 or I.A. No. 335 of 2023. 23. Consequently, miscellaneous petitions pending if any shall stand closed.