Laymen's Evangelical Fellowship vs J. Kishorelal

P.K. Sethuraman, J.—This Civil Revision Petition filed u/s 115, C.P.C. is against the order by the Vacation Judge and District Judge of

Nilgiris at Udhagamandalam, in I.A. No. 327 of 1988 in O.S No. 124 of 1984. The petitioner is the respondent/defendant in the suit. The revision

petition has been filed against the order of the learned Vacation Judge and District Judge in the application filed under Order 41, Rule 5(2)(3)

and(4) and Section 151, C.P.C. by the plaintiff after the judgment dismissing the suit praying to stay the operation of the judgment and decree

dated 31-5-1988 in the suit O.S. No. 124 of 1984 allowing present status quo for a reasonable time to enable the petitioner/plaintiff to get copies,

prefer an appeal and obtain further orders from the appellate Court.

The defendant/respondent is shown to have taken notice and has prayed for time for filing counter and thereupon the order had been passed by

the learned Judge stating that time had been granted for filing counter till 4-7-1988 and further stating that in interests of justice status quo as

regards the suit property to be maintained as on date.

It has been contended that the order passed by the learned Vacation Judge is in excess of jurisdiction under which stay had been granted and

the learned Judge ought to have seen that no sufficient cause was shown by the respondent while seeking orders for stay of the decree in the suit. It

has not been proved that the plaintiff would suffer substantial loss if stay of the decree was not granted and further the learned Judge ought to have

seen that Order 41, Rule 5, CP.C. is not applicable to the facts and circumstances of the case and the learned Judge erred in ordering status quo

without realising that even before the order was passed in the application the petitioner put up gates and fence in the suit property.

The respondent/plaintiff filed counter contending that the revision petition and the petitions are not maintainable and should be dismissed in

limine. Further denying the allegations made in the petition in para 4 of the affidavit and stating that it was true that the judgment was rendered

on31-5-1988 and at the time of pronouncement of the judgment one of the counsel for the plaintiffs was present and immediately an application for

maintaining status quo was filed and the application was moved in the fore-noon itself in the presence of the counsel for the revision petitioner and

the order of stay was obtained and he also served notice of stay on the counsel for the revision petitioner in the forenoon itself. It is false to say that

the stay order was passed around 3.30 p.m. and that gates had been put up in the fore-noon itself. The respondent rushed to Coonoor and filed a

complaint before the Sub-Inspector of Police stating that the request of the revision petitioner for police help to put up the gates should not be

complied with in view of the Court''s Order and an application for contempt was also moved on 6-6-1988 as the Vacation Court was scheduled

to sit on the next day. The counsel for the respondent herein moved an application for stay and he had also sensed the stay order on the counsel

for the revision petitioner and after service of such stay order on the advocate, gates and fence had been put up. So the contempt application had

been filed.

The order of stay by the trial Court is only temporary to be in force till 4-7-1988 and the revision petitioner herein moved an application for

advancing the hearing of the application in I.A. No. 327 of 1988 in which status quo was ordered to be maintained and in that petition it had been

stated that the gates had been refixed with the fence between 12 noon and 2 p.m. on 31-5-1988. The application for advancing the hearing was

posted on 21-6-1988 on which date counter was filed in the advance hearing petition. Therefore the matter was not seriously contested and the

application was dismissed and the petition stands posted to 4-7-88. The allegation in the affidavit filed by the petitioner herein in para 4 that the

gates were restored on the forenoon of 31-5-1988 is false. There was an appointment of the Commissioner to remove the gates and fences.

Thereafter only the petitioner voluntarily removed the gates and fences and as regards this the Commissioner has made a report The learned

Commissioner removed only the left over portions of the gates and fences. The suit property as such can be enjoyed without the gates since they

are only roads and there will be no prejudice if the suit properties which are common roads is maintained in the present state. The revision

petitioner put up the gates in disobedience of the order of the Court and they were removed by an order of the Court. The Commissioner''s report

has mentioned about the plaintiffs enjoyment of the road, there is ample evidence of the ownership of the respondent and there is no other

alternative road to reach the properties. The respondent''s tea estate has to be looked after as the workmen have to pass through the suit roads

and the tea leaves etc. have to be carried only through the roads and the tea leaves being in the tender stage have to be attended to systematically.

Hence the revision petition has to be dismissed.

It is to be seen that the plaintiff filed the suit for declaration that the plaintiff is the absolute owner of the road portion of the suit schedule

properties, consequently injunct the defendant from causing any obstruction on the road portions of the suit schedule properties or in the alternative

declare that the defendant has only a right of user of the road portions of the suit schedule properties and for costs. On 31-5-1988 the suit is stated

to have been dismissed. Soon after the judgment the plaintiff is stated to have filed LA. No. 327 of 1988 under Order 41, Rule 5(2)(3) and(4) and

Section 151, C.P.C. praying for the stay of operation of the judgment and decree in the suit and allowing present status quo for a reasonable time

to enable the petitioner/plain tiff to get copies, prefer an appeal and obtain further orders from the appellate Court. In the application, as stated

above, the order had been passed by the learned Judge.

It is the case of the revision petitioner that the judgment was delivered at about 10.30 am. in the morning and soon after the petitioner/defendant

had fixed the gates in one of the roads which formed the subject matter of the suit, and according to the defendant that gate was in existence prior

to the suit and by an order of the Court it had to be removed and inasmuch as the plaintiff failed in the suit, the same was refixed But the

application in I.A. No. 327/88 had been filed in the afternoon and the counsel for the defendant prayed time for counter and the Court granting

time to file counter passed the impugned order. Further, according to the learned counsel for the revision petitioner, subsequent to the fixing of the

gate after the judgment when the defendant came to know about the order passed in the petition filed by the plaintiff (respondent herein) the gate

had been removed by the defendant, inasmuch as it was stated that a petition for contempt was filed against the defendant in the same Court.

On the other hand, it is the contention of the respondent that the present revision against the order passed which cannot be said to be a final one

is not maintainable and further the gate was fixed after the stay but before filing of the stay petition and there was some gap between

pronouncement of the judgment and filing of the petition and passing of the interim order and knowing the passing of the interim order the gate had

been fixed and therefore it is not open to the defendant to contend that status quo was quite different than what existed at the time of the judgment.

The learned counsel for the petitioner would also contend that all these years by the orders of the trial Court as well as this Court in the suit on one

occasion or the other defendent was deprived of the right of using the road exclusively and also not having the gate and in such circumstances.

soon after the dimsissal of he suit the gate had been fixed and therefore the learned Judge without actually having known as informed by the

counsel for the defendant that the gate had been fixed subsequent to the suit passed an erroneous order to maintain status quo without jurisdiction.

The learned counsel for the respondent contended that even accepting that the provision quoted Order 41, Rule 5(2), CP.C may not be

applicable, the provision of Section 151, C. P.C has been quoted and again the petition has to be treated as one under Order 39, Rule 2, C.P.C.

as the said provision enables the plaintiff to get an order of temporary injunction even after the judgment in the suit. As regards this contention, the

learned counsel for the revision petitioner would contend that having regard to the language of Order 39, Rule 2 the present respondent/plaintiff

cannot at all avail the same. Even at this place it has to be pointed out that the contention that Order 39, Rule 2 is not applicable having regard to

the language of the said Rule cannot be accepted. It is to be pointed out that the words ""or other injury of any kind"" can clearly cover and enable

the plaintiff/respondent to invoke Order 39, Rule 2, C.P.C. even after the judgment.

I feel the contention put forward by the learned counsel for the respondent herein with regard to the maintainability of the revision petition could

be taken up first. It is the contention of the learned counsel for the respondent that the impugned order is not a final order and in such

circumstances, the revision petitioner could approach the trial Court itself which passed the order and Order 39, Rule 4 is the proper provision and

there could be no revision against the order. On a close scrutiny the said contention put forward regarding non-maintainability of the revision

petition and applicability of Order 39, Rule 4, I feel, cannot be accepted. Even according to the learned counsel for the respondent, the order was

not a final one and time for counter had been given till 4-7-1988. If that is so, I feel there is no need to file any application to set aside the interim

order passed under Order 39, Rule 4. The revision petitioner could as well file counter and put forward his contentions. The contention that the

order is not a final one, I feel, may not also be accepted. The very application filed by the plaintiff was for stay of the operation of the judgment and

decree and allowing the present status quo for a reasonable time to enable the petitioner/plaintiff to get copies, prefer an appeal and obtain further

orders. The order passed simply states that time has been granted till 4-7-1988 for counter and in the interests of justice up to 4-7-1988 slatus

quo has to be maintained. Taking into consideration the fact that the judgment was pronounced on 31-5-88 and directing order of status quo till 4-

7-1988 in case the plaintiff obtains copy of the judgment and decree in the suit well before 4-7-1988 and also happens to file an appeal and

obtains appropriate orders from the appellate Court, there may not be any need for further pendency of the application filed by the plaintiff, and in

such circumstances, the petition itself may become infruetuous before 4-7-1988. Therefore the contention put forward by the learned counsel for

the respondent that the order was not a final one and in such circumstances the revision is not maintainable cannot be accepted having regard to the

facts and circumstances of the case under which the order had been passed. Moreover, it may also be pointed out that even after filing of counter if

the case put forward by the defendant in the counter is not accepted, to ""maintain status quo"" order may be extended for a further time, and in such

a situation there may not be any need for passing of fresh order which could be called as final order.

The learned counsel for the respondent submitted the decision report in Abdul Shukoor Singh v. Umachander AIR 1976 Mad 350 , rendered

by Ramaprasada Rao and Ratnavel Pandian, JJ. In the said decision the learned Justice Ramaprasada Rao has very clearly discussed the question

as to whether an appeal would He against an ex parte ad interim injunction and about the scope of Order 39, Rule 4, C.P.C. The decision was

rendered in the following circumstances. A suit had been filed in the Court of the District Munsif, Tirupathur, NorthArcot District, and along with

the suit an application had been filed for temporary injunction against the defendants, and in the said application interim injunction was granted

directing notice to the respondents and the respondents took up the matter in appeal to the Subordinate Judge, Tirupathur, and in the appeal

interim suspension of the order of interim injunction was prayed for and the learned Judge also suspended the same. As against that order civil

revision petition had been filed by the plaintiff. When the case was set for admission before the learned Justice V. Ramaswami, (as he then was)

the judgment rendered by Justice Maharajan in Mangai Achi Vs. S. Asokan and Another, had been brought to the notice of the learned Judge and

then in such circumstances the learned Judge directed the papers to be placed before the Chief Justice for orders and thereafter the matter had

been disposed of by the learned Judges Ramaprasada Rao and Ratnavel Pandian. The learned Judges have elaborately discussed after hearing the

contentions put forward by the members of the Bar after giving notice to various bar Associations and also after hearing the arguments of Mr.

Parasuran who was requested to be amicus curiae. Their Lordships have pointed out as to how there could be two different kinds of orders in the

petition filed for temporary injunction and have also expressed as to how the view taken by the teamed Justice Maharajan could not be applicable

in cases where the orders had been passed without fully hearing the parties. Reliance was placed in this decision by the learned counsel for the

respondent herein in support of the contention that it is open to the revision petitioner herein to move the learned Judge with an application under

Order 39, Rule 4, C.P.C. In as much as the learned Judges have pointed out that inter alia Order 39, Rule 4, C.P.C. provides that order for

injunction may be discharged or varied or set aside by the Court on application made thereto by any party dissatisfied with such order, that has

been characterised by the learned Judge in the said decision as inbuilt safeguards in Order 39, Rule 4 and that is indicative of the fact that a

summary or a cursory interim injunction granted by the Courts may easily be varied, discharged or set aside by the Court on an application made

thereto by the aggrieved party to whom invariably notice of such order had been given.

But in the instant case it cannot at all be said that there is any ex parte order. Moreover, having regard to the facts and circumstances of the

case also as pointed out-by me earlier there could be no need of invoking Order 39, Rule 4 by the revision petitioner, inasmuch as it is open to him

to file counter and make his submissions. As stated earlier, though on the face of it the order may appear to be an interim one and not a final one in

effect it is a final one. Having regard to the fact that the plaintiff had filed the suit for injunction and the suit had been dismissed, and thereafter the

application had been filed for maintaining status quo, directing maintenance of status quo again will amount to an order of injunction against the

defendants as it has to be stated that after the dismissal of the suit any order of injunction that had been passed during the pendency of the suit will

also get vacated automatically. Having regard to the above decision I feel the contention with regard to the non-maintainability of the revision

petition put forward by the learned counsel for the respondent herein cannot be accepted.

There is controversy as regards the actual time of filing of the petition praying for stay of the judgment and decree and maintenance of status

quo and the order passed in the petition. In the counter filed on behalf of the respondent herein it has been mentioned that for the application for

stay notice was given to the counsel for the defendant and taking notice time for counter was prayed for and there is an endorsement to that effect

in the petition itself and in the afternoon itself in the presence of the counsel for the defendant the order of stay is stated to have been obtained. If

really that is so, I fail to understood as to how there is any necessity to serve a notice of stay on the counsel as he is stated to have been present at

the time when the order was pronounced. It is not made clear as to whether the learned Vacation Judge and District Judge passed the order of

stay and status quo to be maintained soon after hearing of the stay petition or after some time. The fact that the plaintiff had to rush to Coonoor to

file a complaint before the Sub-Inspector of Police, Coonoor, to inform that the request of the revision petitioner for police help to put up the gates

should not be complied with in view of the Court''s order, makes me feel that soon after the judgment was delivered the defendant has sought the

aid of the police to put up the gates, as the suit had been dismissed and the plaintiff wanted police protection and came to know that stay petition

has been filed and it was moved and the order was obtained much later. One fails to understand as to why there was an application for contempt

on 6-6-88 when it is the case of the parties before me that when the defendant came to know of the subsequent order, the gates and fence had

been removed. The contention that because a Commissioner had been asked to go for that purpose and then only gates and fence had been

removed may be superfluous. In such circumstances I feel the contention put forward on behalf of the revision petitioner that soon after the

judgment gates had been fixed with the fence has to be accepted and there could have been some time lag between the judgment and the order

passed in the stay petition directing maintenance of status quo. As regards the impugned order inasmuch as the learned District Judge has referred

to the position that prevailed during the pendency of the stay up to the date of judgment, I feel that the Court by that order directed the defendant

not to put up the gates in view of the judgment and maintain that kind of status quo.

The learned counsel for the revision petitioner submitted that the provision mentioned cannot at all be applicable for obtaining an order of stay

and maintenance of status quo. As regards this the learned counsel for the respondent himself hasstated that the provision quoted was wrong, but

pointed out that there is mention of Section 151, C.P.C. also. But having regard to the view taken by the Supreme Court in Manohar Lal Chopra

Vs. Rai Bahadur Rao Raja Seth Hiralal, , wherein the Supreme Court overruled the view of our High Court that in the teeth of the specific

provision of Order 39, Rule 1, CP.C the Court did not possess any power much less inherent power u/s 152, C.P.C. to grant interim injunction. I

feel passing of the order u/s 151, CP.C could be stated to be proper.

The learned counsel for the revision petitioner also submitted that as stated earlier for several years there had been order of injunction and the

defendant was deprived of the right of having the gates and fence and again after the dismissal of the suit the plaintiff seeking an order of this nature

will cause continued hardship in the exercise of the right of the defendant. The said contention may be said to be reflecting the grievance and

hardship of the defendant in the facts and circumstances of the case. But it has to be pointed out that the impugned order had been passed in view

of the fact that the plaintiff has prayed for such an order till he gets copy of the judgment and prefers an appeal and obtains such order from the

appellate Court. Such hardships do occur in the nature of things in litigations. It may be said that the contentions put forward by the learned counsel

for the petitioner could be urged in case the respondent is filing an appeal and along with the appeal he files an application for stay of the operation

of the judgment and decree passed by the trial Court. Thus on a careful consideration I feel the revision petition is maintainable but having regard to

the facts the revision has to fail Before passing final order I feel once again it has to be pointed out that the Subordinate Courts have to clearly state

as to what it was actually meant by directing maintenance of status quo as repeatedly the decisions of this Court earlier have pointed out that there

should be such clear orders. With this direction the revision petition has to be dismissed.

In the result, the civil revision petition is dismissed in the circumstances of the case no order as to costs.

Even yesterday, the learned counsel for the respondent in the Civil Revision Petition wanted to bring k to my notice the order that had been

passed by the trial Court with regard to the appointment of a Commissioner by the trial Court after delivery of the judgment to find out whether the

gates were there and in the event the gates were there, to direct the gates to be removed. Even during arguments advanced in the Civil Revision

Petition, both sides represented regarding the same matter and I have discussed the same in my order, that is to be pronounced today. In such

circumstances, I find no necessity to have anything mentioned in the order. Hence, I feel it unnecessary to take note of the order that had been

passed subsequently by the trial Court.