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Judgment
S. Rajeswaran, J.—This Civil Revision Petition is filed against the Order dated 22.05.2008 made in I.A. No. 468 of 2008 in O.S. No. 119
of 2008 on the file of the Vacation Judge at Tiruvallur, District Munsif Court, Poonamallee.
The defendant in O.S. No. 186 of 2008 is the revision petitioner before this Court.
The respondent/plaintiff filed O.S. No. 186 of 2008 on the file of the District Munsif at Poonamallee, for a judgment and decree granting
permanent injunction restraining the defendant in the suit from interfering in any manner with the plaintiff''s administration, right and management of
the suit property. The suit property is a public temple by name Sri Nathamman temple, situated in S. No. 7/3 and 3/3 in Nazarathpettai Village,
Poonamallee Taluk measuring an extent of 9600 sq.ft.
The case of the respondent/plaintiff before the trial court is that the suit property is a public temple maintained by the plaintiff Sangam i.e. Sri
Nagathamman Alaya Vazhipattu Valarchi Sangam. The members of the plaintiff''s ancestors constructed a small superstructure wherein the Deity
was installed in the year 1972. The suit property is partly situated in S. No. 3/3 belonging to S. Kajah Moideen Vahaira and the remaining part is
situated in S. No. 7/3 belonging to Sri Sankara Madam. The defendant, the revision petitioner herein, is one of the devotees of the said temple
often attempts to obstruct the performance of the day to day poojas in the temple without any right. The above said S. Kajah Moideen Vahaira on
16.6.2006 consented to have the temple inside their property and constructed a compound wall for the temple. The President of Nazarathpet
Panchayat and the Councillors have also given the written consent in favour of the plaintiff Sangam in respect of performance of Poojas and other
allied activities. On 15.5.2008, the defendant in the suit with an ulterior motive came to the temple with his henchmen and attempted to obstruct the
devotees and the performance of Pooja. But, the same was thwarted by the plaintiff Sangam and the villagers. Hence, the Sangam filed O.S. No.
186 of 2008 for the above said relief.
Along with the suit, the plaintiff Sangam filed an Application in I.A. No. 468 of 2008 under Order 39 Rule 1 & 2 C.P.C., praying to grant an
ad-interim injunction. On 22.05.2008, the trial court granted an order of ad-interim injunction till 29.5.2008. It is pertinent to mention here that the
suit was originally filed before the Vacation Judge (District Munsif) at Tiruvallur, as O.S. No. 119 of 2008. On 29.5.2008, the injunction order
granted earlier was extended till 26.6.2008. But, on 2.6.2008, the hearing of the application was advanced suo moto and the suit was transferred
to District Munsif Court, Poonamallee for disposal on 26.6.2008. The District Munsif Court, Poonamallee received the suit papers by transfer
from the Vacation Court, Tiruvallur and the suit was re-numbered as O.S. No. 186 of 2008. The District Munsif Court, Poonamallee issued fresh
notice to the defendant by 4.8.2008 and extended the interim order till then. Aggrieved by the order of the trial Court, in extending the order of
interim injunction and also against the order dated 22.5.2008, the above revision petition has been filed by the defendant in the suit under Article
227 of the Constitution of India.
Heard the learned Counsel for the revision petitioner and the learned Counsel for the respondent. I have also gone through the entire documents
available on record.
The learned Counsel for the revision petitioner contends that, the respondent/plaintiff has not come to the Court with clean hands and the plaintiff
Sangam is guilty of suppressing the material facts. According to them, the present suit is an abuse of process of law, as already the revision
petitioner herein filed O.S. No. 1051 of 2005 on the file of the District Munsif Court, Poonamallee with respect to the very same property seeking
for a permanent injunction, in which, one Thiru K. Kumar who is the so called Secretary of the respondent Sangam herein was arrayed as the
second defendant. With respect to the very same temple, the revision petitioner obtained an order of injunction in I.A. No. 3775 of 2005 in O.S.
No. 1051 of 2005. It was contended by the learned Counsel for the revision petitioner that the revision petitioner has been in possession of the suit
lands besides maintaining the suit temple. He submitted that there cannot be two orders of interim injunction with respect to the same property and
therefore, the order of injunction obtained by the respondent/plaintiff in the present suit i.e. O.S. No. 186 of 2008 is illegal and the same is to be
set aside.
Per contra, the learned Counsel for the respondent/plaintiff submits that if at all the revision petitioner is aggrieved, he has to only approach the
trial court for vacating the interim injunction and the Civil Revision petition under Article 227 of the Constitution of India is not maintainable.
I have considered the rival submissions carefully with regard to facts and the judgments relied on by both the counsel.
In 2004(3) M.L.J. 342 (Chokkaiya Chettiar and Ors. v. T. Sivakumaran and Anr.), this Court considered a number of judgments with regard
to the maintainability of a revision petition under Article 227 against orders of interim injunction granted under Order 39 Rule 1 and 2 C.P.C. and
held as under:
From the various decisions relied upon by the learned advocate for the revision petitioners and the respondents, it could broadly be deduced,
when this Court can interfere with the orders passed by the Court below under Article 227 of the Constitution. These are only illustrative and not
exhaustive.
(a) The power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases for the purpose of keeping the
subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors.
(b) While exercising the powers under Article 227 of the Constitution, if this Court comes to the conclusion that an order has been obtained by
suppression of material facts and also by playing fraud, this Court is entitled to take into consideration the grievance of the party and if it is found to
be true, it is also duty bound to see that the grievance is redressed to the maximum extent possible.
(c) When an interim order an order has been obtained by practising fraud upon the Court, since fraud affects the solemnity, regularity and
orderliness of the proceedings of the Court, and also it would amount to an abuse of process of Court, the Court has inherent power to set aside
the order obtained by practising fraud.
(d) When there are alternative remedies available, even though there is no hurdle on the part of the High Court to entertain a petition under Article
227 of the constitution, it is a well recognized principle, which gained judicial recognition that the High Court should direct the party to avail himself
of such remedies one or the other before he resorts to a constitutional remedy under Article 227 of the Constitution.
(e) The power of the High Court under Article 226/227 of the Constitution is always in addition to the revisional jurisdiction conferred on it.
(f) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by C.P.C.
Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High
Court.
(g) It is well stated that the power of superintendence conferred on the High Court under Article 227 is administrative as well as judicial, and is
capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu.
(h) The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence
is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction.
(i) The High Court while exercising it powers under Article 227 is not entitled to discuss the evidence and come to its own conclusion on the
evidence as to who was in possession of the land. That was a matter for the revenue authorities.
(j) The High Court is not entitled to interfere with the order passed by the subordinate Courts after such orders were passed in exercise of
discretion vested before the Court below and it is not open for the High Court to interfere with such orders in exercise of its supervisory
jurisdiction under Article 227 of the Constitution.
(k) Where there is a hierarchy of appeal provision available in the Act, the fast track procedure cannot be allowed to be derailed either by taking
recourse to proceedings under Article 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred.
(l) When there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under Article
227 of the Constitution.
(m) The High Court in its supervisory jurisdiction can only interfere with the lower Courts'' findings of fact only when it is perverse or there is no
evidence to support it and when grave injustice or gross failure of justice has occasioned thereby.
(n) Exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It can be exercised in the circumstances where
orders passed were for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice.
(o) The right of appeal is statutory right and when such statute provides an appeal remedy on limited grounds, the grounds of challenge cannot be
enlarged by filing a petition under Article 226/227 of the Constitution.
(p) Writ petition/revision filed under Article 227 of the Constitution before the High Court is not against the ''decision'' of the subordinate Court,
tribunal or authority, but it is against the ''decision-making process''. If the ''decision-making process'' ignores vital evidence and arrived at
erroneous conclusion or has misconstrued the provisions of the relevant act or misunderstood the scope of its jurisdiction, the Constitutional power
of the High Court under Article 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining"".
(q) Exercise of power of the High Court under Article 227 of the Constitution would arise when an order was passed without any jurisdiction or
there is an error of law, perverse findings and gross violation of natural justice.
(r) The jurisdiction of the High Court under Article 227 is not appellate, but, supervisory. It cannot interfere with the findings of fact recorded by a
lower Court/ tribunal, unless there is no evidence to support the finding or the finding is perverse.
In A. Venkatasubbiah Naidu Vs. S. Challappan and Others, the Hon''ble Supreme Court held that ex-parte order of injunction passed under
order 39 Rule 1 C.P.C. would be appealable under Order 43 Rule 1 C.P.C. The Hon''ble Supreme Court further observed that the affected party
may either move the Appellate Court or approach the same court which passed ex-parte order for any relief. In the very same judgment, the
Hon''ble Supreme Court observed that Rule 3A of Order 39 does not say that the period of injunction order should be restricted by the Court to
30 days at the first instance, but, the court should pass the final order on it within 30 days from the day on which the injunction was granted.
Thereafter, the Hon''ble Supreme Court held as under:
It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the
procedure established by law. Under the normal circumstance the aggrieved party can prefer an appeal only against an order passed under Rules
1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional Court during
the pendency of the application for grant or vacation of temporary injunction. In such circumstance the party who does not get injustice due to the
inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39
Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant
of vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to
entertain the appeal and further to take note of the omission of the Subordinate Court in complying with the provisions of Rule 3A. In appropriate
cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring
judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex
parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary
injunction, on the date of expiry of thirty days mentioned in the Rule.
Now, what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the
party had two other alternative remedies. Though no hurdle can be put against the exercise of the Constitutional powers of the High Court it is a
well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the
other before he resorts to a constitutional remedy. Learned Single judge need not have entertained the revision petition at all and the party affected
by the interim exparte order should have been directed to resort to one of the other remedies. Be that as if may, now it is idle to embark on that
aspect as the High Court had chosen to entertain the revision petition.
In 2007(3) L.W. 515 (Ganapathy Subramaniam v. S. Ramalingam and 23 Ors.), this Court observed as under:
Article 227 of the Constitution of India confers on every High Court the power of superintendence over all Courts and Tribunals through out the
territory in relation to which it exercise jurisdiction excepting any Court or tribunal constituted by or under any law relating to the armed forces.
Without prejudice to the generality of such power, the High Court has been conferred with certain specific powers under Clauses (2) and (3) of
Article 227 of the Constitution. It could be seen that the power of superintendence so conferred on the High Court is administrative as well as
judicial and is capable of being invoked at the instance at the instance of any person aggrieved. The paramount consideration behind vesting such
wide power of superintendence in the High Court is to clear the path of justice. Such a power of superintendence is not subject to technicalities of
procedure or traditional fetters. That power so conferred cannot also be regarded as appeal or revisional jurisdiction and should not be exercised
in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution and hence, the Court has devised a self imposed rule of
discipline on this power. The supervisory jurisdiction can be refused to be exercised when an alternative efficacious remedy by way of defending
the suit or filing an appeal or revision is available to the person aggrieved. The Court shall have regard to the legislative policy formulated on
experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to
be kept away from the appellate or revisional jurisdiction in the hope of accelerating conclusion of the proceedings and avoiding delay and
procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision.
It is not denied that the powers conferred upon the High Court under Article 227 of the Constitution of India are extraordinary and discretionary
power as distinguished from ordinary statutory power. No doubt, Article 227 of the Constitution conferred a right of superintendence over all
Courts and Tribunals throughout the territories in relation to which it exercised jurisdiction, but no corresponding right is conferred upon the litigant
to invoke the jurisdiction as a matter of right. In fact, the power under Article 227 of the Constitution of India casts a duty upon the High Court to
keep the inferior Courts and tribunals within the limits of its authority and that they do not cross the limit ensuring the performance of their duties in
accordance with law conferring power within the ambit of the enactment treating such Court and Tribunals. Only wrong decisions may not be a
ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the
subordinate Courts and tribunals resulting in grave injustice to any party.
The supervisory jurisdiction of this Court could be invoked only when the trial Court has committed any error. Mere filing of a suit by the
respondents and taking the suit on the file by the trial Court cannot be regarded as an act on the part of the trial Court to transgress its jurisdiction
or its bound. Of course, the party who files the suit might have filed the suit suppressing material facts or made up the suit to his convenience for
seeking the relief which is not otherwise entitled to. But that fact has to be considered by the trial Court during the relevant point of time. There is
no impediment or embargo for the petitioner to put forth his contentions before the trial court to strike off the plaint at the threshold. As this Court
is relegating the petitioner to go before the trial court for the relief, the Court has restrained itself from going into the facts of the case, as any
observation made by this Court would have a bearing on the suit, which is pending before the trial court. Of course, the petitioner is also having an
effective remedy in the CPC itself to have the suit struck off and he could very well avail that remedy. On the above said reasoning, I am not
inclined to grant the relief as prayed for in the revision.
In S. Rangarajan, R. Varadarajan and G. Durairajan Vs. Nathan''s Foundations Pvt. Ltd. and Others, , this Court observed as under:
Considering the above submissions of the learned Counsels, it is clear that the order of status quo granted by the trial court is not prejudicial to
the cause of both sides and by passing the order of status quo, the rights of the parties are not finally determined in the I.A. And the petitioners will
be provided every opportunity to advance their arguments in the I.A. by the trial Court. Further, under Order 39, Rule 1(a) the defendants are also
entitled to file an Application for temporary injunction if the suit property is in danger of being wasted or damaged, alienated by any party to the
suit. It is also to be noted that the petitioners are not prevented in any manner in advancing their arguments in the pending. I.A. before the trial
court. The Apex Court in its judgment reported in A. Venkatasubbiah Naidu Vs. S. Challappan and Others, had categorically stated that invoking
the constitutional remedy under Article 227 of Constitution of India should not be entertained when there is an efficacious alternative remedy of
Appeal provided under the Statute. In the present case the petitioners, without even contesting the I.A. and without exhausting the Appeal remedy,
have invoked the jurisdiction under Article 227 of the Constitution of India.
In Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, the Hon''ble Supreme Court of India as well as this Court in the decision
reported in K.M. Mohan Vs. The District Collector and Others, have clearly held that the status quo of a suit property has to be preserved at all
costs and no party should be allowed to disturb the nature of the suit property including its alienation, during the pendency of the Suit. Admittedly,
the petitioners have challenged the very right of the first respondent flowing from the MoU. In the main suit, it is stated that evidence is over and the
suit is posted for arguments. At this juncture, if anything is done to alter the nature of the suit property by alienation as attempted by the petitioners,
that would cause lot of prejudice to the rights of the respondent in case of their succeeding in the suit. Therefore, the I.A. and the order of status
quo passed in the I.A. Are very much within the scope of the main suit and there is absolutely no illegality or legal infirmity in the said order.
In the light of the above judgments, if the facts of the present case are considered, I am of the considered view that the Civil Revision petition is
not maintainable under Article 227 of the Constitution of India and the revision petitioner should only approach either the trial court or the
Appellate Court as held by the Hon''ble Supreme Court in A. Venkatasubbiah Naidu Vs. S. Challappan and Others, .
The main grievance of the revision petitioner before this Court is that, against the Secretary of the respondent/ plaintiff Sangam and others, he
filed a suit in O.S. No. 1051 of 2005 on the file of the very same court i.e. District Munsif Court, Poonamallee with respect to the very same
property seeking for permanent injunction and he also obtained an order of interim injunction in I.A. No. 3775 of 2005 on 9.12.2005. Therefore,
according to the revision petitioner, when he obtained an order of interim injunction in his suit against the Secretary of the respondent/ plaintiff
Sangam, with regard to the very same temple, there cannot be another injunction against him by the very same Court in a suit filed at the behest of
the very same person i.e. K. Kumar with respect to the very same temple. Hence, the revision petitioner sought for setting aside the order of
interim injunction granted by the trial Court.
I am unable to accept the submissions made by the learned Counsel for the revision petitioner in this regard.
At the time of granting the ex-parte order of interim injunction, the Vacation Court had the opportunity to go through the plaint and the
documents filed along with the plaint. Only on that basis, the Vacation Court found a prima facie case in favour of the respondent/plaintiff and
granted an order of interim injunction on 22.05.2008. Thereafter, the Vacation Court sent the papers to the District Munsif Court, Poonamallee
and the District Munsif Court, Poonamallee after receiving the papers from the Vacation Court, issued fresh notice to the revision petitioner by
4.8.2008 and extended the interim order till then. If that being so, neither the Vacation Court nor the regular court had an opportunity to know that
there was already a suit filed by the revision petitioner with regard to the same temple and an order of interim injunction was obtained by the
revision petitioner against the same persons including the Secretary of the respondent/plaintiff Sangam. Therefore, it is open to the revision
petitioner to approach the trial court and appraise the trial court of the facts of filing a previous suit and obtaining an injunction in O.S. No. 1051 of
2005, either by filing a counter or by filing a vacate stay petition.
Hence, the revision petitioner is directed to go before the trial court and to file a counter affidavit in I.A. No. 468 of 2008 within a week from
the date of receipt of a copy of this order and the trial court is directed to dispose of I.A. No. 468 of 2008 on merits and in accordance with law
within three weeks thereafter, after affording opportunities to both the parties.
In the result, the above Civil revision petition is disposed of in the above terms. No cost. Connected M.P. No. 1 of 2008 is also closed.