M.Loganathan & Ors. v. Mariyayeeammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.06.2008CORAM:THE HONOURABLE MR. JUSTICE S. MANIKUMARC.R.P.(P.D.)No.1607 of 2006M.P.No.1 of 20061.M.Loganathan2.A.Kurabi3.U.A.K.Jailani4.Akbar Kabeer5.U.Mohammed Jawahar6.U.Mohammed Rajik7.Jafer Sadhik8.U.Akbar Ali9.Thahira10.B.Abdul Kaboor11.B.Mohammed Ali12.B.Sirajudeen13.B.Julbikar Ali14.Mohammed Navpal15.Mr.M.H.Abu Khadir16.Mr.H.H.Akbar Ali ... Petitioners/DefendantsVersusMariyayeeammal ... Respondent/PlaintiffCivil Revision Petition is filed under Article 227 of theConstitution of India against the order dated 28.06.2006 made inI.A.No.313 of 2006 in O.S.No.366 of 2001 on the file of theSecond Additional Subordinate Judge, Coimbatore.For Petitioners : Mr.N.DamodaranFor Respondent : Mr.R.Vidithalai Senior counsel for Mr.M.BaskarO R D E RAggrieved by the interim injunction granted by the IIAdditional Subordinate Judge, Coimbatore, dated 28.06.2006 inI.A.No.313 of 2006 in O.S.No.366 of 2006, the revisionpetitioners have approached the Court by way of preferring thepresent Civil Revision Petition. https://hcservices.ecourts.gov.in/hcservices/

2.The necessary facts leading to the filing of this CivilRevision Petition are as follows:The first revision petitioner has filed a suit in O.S.No.142of 2004 on the file of the District Munsif, Coimbatore andsought for a permanent injunction restraining the defendants frominterfering with his peaceful possession and enjoyment of thesuit property on the ground that he is the absolute owner of thesuit property from 1983 onwards, after the demise of his mother.He has obtained interim injunction. 3.The respondent has filed a suit in O.S.No. 235 of 2004on the file of the Subordinate Judge, Coimbatore for declarationthat she is the owner of the suit property by adverse possessionand for a consequential relief of permanent injunctionrestraining the first petitioner/ defendant from alienating orencumbering the suit property. The respondent has also filed asuit in O.S.No.366 of 2006 on the file of the II AdditionalSubordinate Judge, Coimbatore for injunction restraining thepetitioners from altering the physical feature of the suitproperty and also for a permanent injunction restraining thepetitioners from interfering with her possession and enjoyment ofthe suit property. She has also filed an application inI.A.No.313 of 2006 for interim injunction. Parties in the abovesuits are one and the same and the issue is common. Theplaintiff/respondent entered into an agreement with the firstrespondent's mother but before execution of sale deed she died.The allegation in the above interlocutory application is that,the first petitioner had sold the suit property to respondents 2to 16 and therefore they have been added as parties to the suit.4.Mr.N.Damodaran, learned counsel appearing for therevision petitioners would mainly contend that in respect of theproperty in question, the first petitioner had already obtainedan order of injunction as early as on 11.02.2004, which was lateron made absolute and the suit filed by the respondent is stillpending before the Sub Judge, Coimbatore.5.He drew the attention of this court to two decisions ofthe Apex Court in Venkata Subbiah Naidu v. S.Challappan 2000 4CTC 358 and Kishore Kumar v. Praveen Kumar 2006 (3) CTC 185 forthe proposition that before granting an ex parte injunction, theCourt has to record reasons thereof and it should enable thelitigant to perform his obligations, enumerated in Clauses (a)and (b) of the Rule 3 of Order 39 C.P.C.. Therefore, according tothe learned counsel for the revision petitioners the Court belowwas not justified in granting interim injunction against therevision petitioners. https://hcservices.ecourts.gov.in/hcservices/

6.He has also contended that the order of the Court belowis a non speaking order and beyond the scope of Order 39 Rule 3CPC. In support of his contention he referred to a judgement inRt.Rev.Dr.V.Devasahayam v. D.Sahayadoss, 2002 (1) MLJ 501 and UmaMaheswari v. S.Peter (2006(5) CTC 568) and an unreported order ofthis Court in CRP.Nos.1568 of 2007 dated 06.07.2007 in anidentical issue. The learned counsel for the revision petitionershas also relied on a decision of the Supreme Court in MuruganStanley Mutual Fund v. Kartick Das 1994 (4) SCC 225 and submittedthat granting injunction without notice requires interference ofthis Court as was done in the case of Kodikanal InternationalSchool v. Minor Nihal Ghosh 2003 (2) MLJ 87. He further submittedthat the court below ought to have adverted to the fact that theorder of interim injunction granted and subsequently extendedfrom time to time runs contrary to the order of temporaryinjunction already granted in favour of the first petitionerherein and in such circumstances the court below ought not tohave exercised its discretion in favour of the respondent hereinand thus committed a serious illegality in granting interimorder.7.On the other hand, learned senior counsel appearingfor the respondent, referring to the powers of this Court inexercise of its jurisdiction under Article 227 of theConstitution of India, relied on the decision of this Court inGanesa Naicker and another v. Kokilambal and others reported in(2005) 4 M.L.J. 155 with regard to the exercise of superintendingpowers conferred on the High Court under Article 227 of theConstitution of India. According to the learned Senior counselfor the respondent, the revisional jurisdiction against aninterim order passed by the trial court, is substantiallyrestricted and that the revisional jurisdiction of this courtcannot be exercised, unless there is material irregularity in theexercise of discretion. In such circumstances he prayed thiscourt not to interfere with the order of injunction granted bythe court below. He also cited two decisions of the Hon'bleSupreme Court made in 2003(6) SCC 675 and 2007(2) SCC 275 insupport of his case.8.I have carefully considered the arguments of thelearned counsel appearing for the parties, materials available onrecord and the decisions relied on by the learned counsel oneither side.9.Before adverting to the facts of the case, this courtdeems it fit to refer the relevant rule for the grant of exparteinterim injunction. As per Order XXXIX rule 3-A, where aninjunction has been granted without giving notice to the oppositeparty, the Court shall make an endeavour to finally dispose of https://hcservices.ecourts.gov.in/hcservices/ the application within thirty days from the date on which theinjunction was granted; and where it is unable to do so, it shallrecord its reasons for such inability. But in this case exparteinjunction was granted on 28.6.2006 and subsequently it wasextended periodically on 14.7.2006, 2.8.2006, 6.9.2006 andfinally on 11.10.2006. Aggrieved by the same, the petitionershave come forward to this court by way of filing the presentcivil revision petition. Normally granting of an exparteinjunction and extension of exparte order is not illegal and itis purely the discretion of the court, subject to thesatisfication of the ingredients of the Section with reference tothe material documents on record. As per Rule 3A, where aninjunction has been granted without giving notice to the oppositeparty, the court shall make an endeavour to finally dispose ofthe application, within 30 days from the date on which theinjunction was granted, and where it is unable so to do, it shallrecord its reading for such inability. In the case on hand, sofar as the grant of exparte order of injunction is concerned,there is no question of violation of any of the provisionscontained in Order 39 Rule 3 C.P.C., even though the matter wasadjourned thereafter for one reason or other.10.In the circumstances, the learned II AdditionalSubordinate Judge, Coimbatore is directed to dispose of theinjunction application within a period of three weeks from thedate of the receipt of a copy of this order in compliance withthe Order 39 Rule 3(A) C.P.C and in accordance with law. It isopen for the petitioners to raise all the points advanced inthis civil revision petition. The learned II AdditionalSubordinate Judge, Coimbatore is further directed to dispose ofthe suit within a period of three months thereafter.11.With the above observation this civil revision petitionis disposed of. No costs. Consequently the connected M.P.No.1 of2006 is closed.VkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe II Additional Subordinate Judge,Coimbatore. + 1 cc to Mr. N. Domadaran, Advocate SR No. 32782 order inC.R.P.PD.No.1607 of 2006SSV(CO)SR/28.10.2008