Rathinam and Others vs Pavathal

Venkataswami, J.—This civil revision petition under Article 227 of the Constitution of India has been preferred under the following

circumstances:

The respondent herein has filed O.S. No. 232 of 1990, on the file of the Court of District Judge, Nilgiris at Ootacamund on 8.10.1990. The said

suit was one for partition and separate possession of plaintiffs half share in two suit items. Simultaneously, the respondent also filed I.A. No. 703 of

1990 for grant of an ad-interim injunction restraining the petitioners herein or any person claiming under them from interfering with the respondent''s

joint possession of the suit properties and from alienating the same or any portions thereof to any third parties pending disposal of the suit. The

respondent was successful in getting an ex parte interim injunction. The order granting interim injunction simply reads : ""Heard. Interim injunction

restraining the defendants/respondents from alienating the entire suit property..."", and the matter was posted to 9.11.1990. No reason for granting

such an order was given by the District Judge.

On coming to know of the granting of ex parte injunction, the petitioners filed a detailed written statement in the suit and also filed a counter in

I.A. No. 703 of 1990 bringing to the notice of the Court that the respondent herein initially filed O.S. No. 157 of 1990 on the file of the Court of

District Munsif, Gudalur, Nilgiris, in respect of the identical properties along with I.A. No. 489 of 1990. The suit filed in the Court of the District

Munsif was one for permanent injunction restraining the petitioners herein from interfering with the possession and enjoyment of the respondent

herein of the suit properties. Be it noted, the stand taken in the suit filed in the District Munsifs Court by the respondent herein was to the effect that

she was in separate possession and enjoyment of earmarked portion of properties from out of the suit properties as detailed in the plaint. On that

basis alone, an I.A. No. 489 of 1990. However, the learned District Munsif declined to grant an ex parte interim injunction. As per the

endorsement, the suit was filed on 25.7.1990. Having failed to obtain an ex parte interim injunction in the District Munsifs Court, the respondent

herein filed the suit in the District Court out of which the present civil revision petition arises, totally suppressing the filing of the earlier suit and I.A.

No. 489 of 1990 for Injunction and the stand taken by her in that suit. When these facts were brought to the notice of the District Judge, it is

expected of him to dispose of I.A. No. 703 of 1990 immediately without any delay. Surprisingly and for reasons best known to him, the District

Judge has not disposed of the I.A. so far, notwithstanding the fact that he has not given any reason while granting the ex parte injunction and in

spite of a duty cast on him under Order 39, Rule 3-A of the Code of Civil Procedure.

The petitioners herein before filing this civil revision petition, seem to have filed a C.M.A., against the abovesaid interim order in this Court in

C.M.A.S.R. No. 86001 of 1990 on 26.10.1990. That C.M.A. was, however, dismissed as not maintainable. Thereafter, the petitioners moved an

application in I.A. No. 768of 1990on 8.11.1990for advancing the hearing of I.A. No. 703 of 1990. That application was ordered posting I.A.

No. 703 of 1990 for final disposal on 12.11.1990. From then onwards, at least there were nine adjournments from day-to-day, and I.A. No. 703

of 1990 was not finally disposed of. Though the notes - paper says that at request adjournments were granted, it can be presumed that

adjournments would not have been asked for on behalf of the petitioners herein having regard to the anxiety of the petitioners to have the I.A.

disposed of earlier. Strangely, after hearing the arguments of both sides and after reserving orders on 29.11.1990, the District Judge passed

Orders only on 12.12.1990 holding that the District Court Ws jurisdiction to entertain the suit and again adjourning the I.A. to a further date. Even

thereafter, the matter was not finally disposed of after three adjournments. It is under these circumstances, finding that the District Judge was not in

a mood to exercise the jurisdiction vested in him even though the provisions of the CPC enjoin the exercise of the jurisdiction expeditiously in

matters of this kind, the petitioners have moved this Court under Article 227 of the Constitution and also obtained stay of operation of the order of

the District Judge in I.A. No. 703 of 1990, granting interim injunction.

The facts narrated above will speak for themselves and no comments are required to portray the conduct of the District Judge. One more factor

required to be explained may now be noted. We have seen that the respondent has taken a stand before the learned District Munsif in I.A. No.

489 of 1990 in O.S. No. 157 of 1990 that she was in separate possession and enjoyment of earmarked portion out of the suit property whereas in

the suit filed in the District Court and in I.A. No. 703 of 1990, the stand taken by the respondent was to the effect that she was in joint possession

of the suit properties along with the first petitioner herein. In the counter affidavit now filed in this Court by the respondent seeking to vacate the

interim stay, she has again stated : ""I am in possession of 14.87 acres separately out of the total extent in the plaint Schedule"". This statement in the

counter affidavit filed in this Court in C.M.P. No. 5301 of 1991 is quite contrary and diametrically opposite to the statement made by her in her

affidavit filed in support of I.A. No. 703 of 1990 for injunction.

Finding that the respondent has no case on merits, Mr. P. Ananthakrishnan Nair, learned Counsel for the respondent, submitted that the

petitioners were not justified in invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution when they have alternative

remedy available under the Code of Civil Procedure. Iris true that the petitioners have remedies available under the Code of Civil Procedure.

When they have invoked such alternative remedy and finding that they could not get justice speedily then only they have filed this Revision under

Article 227 of the Constitution, and this is quite obvious from the facts narrated above. Under such circumstances this Court is not helpless to

remedy the situation. If Article 227 of the Constitution is not available to remedy situations like this, I fail to understand under what better

circumstances, Article 227 of the Constitution can be invoked. It may not be out of place to just point out that Order 39, Rule 1 of the CPC

enumerates the circumstances under which temporary injunction can be granted. Rule 3 directs the issue of notice to the opposite party before

granting injunction and in the event of grave urgency requiring grant of injunction without notice, the Court shall record the reasons explaining the

object of granting the injunction and Rule 3A further enjoins the Court to dispose of the application for injunction within 30 days. In spite of all

these in-built precautions, the District Judge has thrown overboard all these principles and granted interim injunction, and adding insult to the injury,

continued the injunction even though the abuse of process of Court by the plaintiff/petitioner before him was clearly brought to his notice and also

established before him.

We have seen from the above facts that the respondent has no consistency in her stand and the move of the respondent is nothing but an abuse

of process of Court to which unfortunately the District Judge (Presiding Officer), has extended a helping hand.

I have no hesitation to hold that the Court below deliberately refused to exercise the jurisdiction vested in him by not disposing of I.A. No. 703

of 1990 after granting interim injunction contrary to the provisions of Order 39, Rules 3 and 3-A of the Code of Civil Procedure. From the facts

narrated above, there is absolutely no justification to continue the interim injunction. Therefore, I set aside the ex parte interim injunction granted by

the Court below.

In the result, the civil revision petition is allowed with exemplary costs for the abuse of process of Court by the respondent herein. The cost is

fixed at Rs. 2,500.