Kennedy and Pushpa Lalitha vs Russel Raj and Gopalan

M. Venugopal, J.—The Civil Revision Petitioners/defendants 2 and 3, have projected this civil revision petition as against the order dated

28-01-2009 in I.A. No. 1 of 2009 in A.S. No. 1 of 2009 in O.S. No. 193 of 2005 passed by the learned subordinate Judge, Padmanabhapuram,

in dismissing the application filed by the petitioners under Order 41 Rule 5 of Civil Procedure Code.

The learned Subordinate Judge, Padmanabhapuram, while passing the orders in I.A. No. 1 of 2009 in A.S. No. 1 of 2009, has inter alia opined

that the revision petitioners/defendants 2 and 3/appellants have not shown good ground in regard to the grant of stay of the operation of the

decree/judgment passed in favour of the first respondent/plaintiff and resultantly, dismissed the application.

The learned Counsel for the revision petitioners urges before this Court that the first appellate Court, namely the learned Subordinate-Judge,

Padmanabhapuram, has not considered the plea of balance of convenience and further that, the first appellate Court has not appreciated in proper

perspective in regard to the fact that ''if stay is not granted, the first respondent/plaintiff may trespass into the suit property on the footing that the

trial Court judgement and decree are in his favour'' and in any event, prays for allowing the civil revision petition in the interest of justice.

This Court has paid its anxious consideration to the arguments advanced by the learned Counsel for the petitioners and noticed the same.

It is significant to point out that the first respondent/plaintiff in the plaint in O.S. No. 193 of 2005 on the file of the learned District Munsif Court,

Padmanabhapuram, has prayed for the relief of permanent injunction restraining the defendants from trespassing into the suit property and from

causing any kind of disturbances to the possession of the plaintiff over the suit property.

The trial Court''s judgment granting the relief of permanent injunction is in favour of the first respondent/plaintiff.

Being aggrieved against the judgment and decree passed by the trial Court, the revision petitioners/defendants 2 and 3, have preferred A.S. No.

1 of 2009 on the file of the learned Subordinate-Judge, Padmanabhapuram. The revision petitioners have filed I.A. No. 1 of 2009 praying for the

relief of stay of the trial Court''s judgment and decree as per Order 41 Rule 5 of the Civil Procedure Code. The first appellate Court has dismissed

the I.A. No. 1 of 2009 without costs. As a matter of fact, the first appellate Court has not exercised its discretion in granting the relief to the

revision petitioners. However, the first appellate Court has among things observed that the revision petitioners have not shown good ground in

regard to the stay of operation of the judgment and decree passed in favour of the first respondent/plaintiffs.

A perusal of the plaint in O.S. No. 193 of 2005 on the file of the trial Court, filed by the first respondent/plaintiff clearly indicates that the main

suit itself is for the relief of permanent injunction. Admittedly, the revision petitioners have projected the appeal in A.S. No. 1 of 2009 on the file of

the learned Subordinate-Judge, Padmanabhapuram and the same is pending. Inasmuch as the main suit filed by the first respondent/plaintiff is only

for the relief of permanent injunction and taking note of the important fact that the first appellate Court has dismissed the I.A. No. 1 of 2009 by

refusing to grant the relief of stay of the operation of the judgment and decree of the trial Court passed in O.S. No. 195 of 2005, this Court on the

basis of fair play, equity, as a prudent course and on the facts and circumstances of the case, opines that to give quietus to the whole issue and also

to thrash out all the points for determination/controversy completely and comprehensively in an appeal that A.S. No. 1 of 2009 on the file of

Subordinate-Court, Padmanabhapuram, can be taken up for final disposal within a time frame to be fixed by this Court and in that view of the

matter, directs the first appellate Court namely the learned Subordinate-Judge, Padmanabhapuram to dispose of A.S. No. 1 of 2009 within a

period of two months from the date of receipt of a copy of this order and to report the compliance to this Court without fail.

With these observations, the civil revision petition is disposed of leaving the parties to bear their own costs. Consequently, connected M.P.No.1

of 2009 is closed. The parties are directed to lend a helping hand to the first appellate Court in regard to the completion of the proceedings.