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Judgment
N.K. Patil, J.—Petitioners, being aggrieved by the order dated 25th October 2003 passed on Interlocutory Application filed by respondent u/s 151 of Civil Procedure Code, on the file of the learned XVII Additional City Civil Judge at Bangalore City (CCH-16), have presented the instant revision petition.
The grievance of the petitioners in the instant writ petition is that, the respondent herein - plaintiff had filed a suit for bare injunction against the petitioners-defendants restraining them from committing breach of the terms of two Lease Deeds dated 10th August 2001 executed by them leasing the schedule hoarding to the plaintiff-respondent Company and also had prayed for an ad interim order of temporary injunction restraining the petitioners-defendants or their agents etc under them from removing, dismantling, defacing, obstructing display of advertisements or allowing third parties from carrying on display causing obstruction in respect of the schedule hoarding and also to restrain the petitioners-defendants from interfering and disturbing the plaintiff from carrying on display, exhibition illumination or business of advertisements in schedule property. Petitioners entered caveat, anticipating the suit by the respondent Company. On the first date of hearing, i.e. on 17th April 2001, the respondent - Company undertook to pay licence fee as and when it falls due i.e. a sum of Rs Two lakhs per month and recording the said submission made by learned Counsel for respondent-plaintiff, the Trial Court was pleased to grant the interim order When things stood thus, there was disobedience of the interim order/undertaking given by plaintiff respondent and therefore, petitioners were constrained to file an application under Order XXXIX Rule 2-A read with Section 151 of the Code of Civil Procedure. The Trial Court allowed the application filed by petitioners by its order dated 15th September 2001 and respondent was directed to pay the amount due within a period of fifteen days from the date of filing of the calculation particulars. The plaintiff respondent did not comply, with the said order also Therefore, the Trial Court issued show cause notice to the plaintiff respondent by its order dated 12th September 2003 for disobedience of the interim order by not fulfilling the undertaking given by the plaintiff-respondent. Be that as it may.
Thereafter, plaintiff-respondent herein has filed the application u/s 151 of CPC for recalling the order dated 12th September 2003 passed by the Trial Court issuing the show cause notice to the plaintiff respondent. The said application filed by the plaintiff respondent had come up for consideration before the Trial Court on 25th October 2003 in O.S. No. 2462/2001. The Trial Court after hearing both sides, on going through the averments made by petitioners-defendants in their objections, has framed necessary point for consideration as to: Whether the plaintiff has made out a case for recalling of the show cause notice issued?.
The Trial Court, after hearing learned Counsel appearing for both parties, on the basis of the objections filed by petitioners defendants and also after going through the order sheet maintained by the Court below and after thorough critical evaluation of the entire material available on file threadbare, by assigning cogent reasons has answered the only point raised by it in the ''affirmative'', holding that, the plaintiff respondent herein has made out a case for recalling the order dated 12th September 2003, issuing show cause notice and observed that, there is no disobedience of the order passed by the Trial Court. Accordingly, the Trial Court allowed the application filed by respondent plaintiff and recalled the order dated 12th September 2003. Being aggrieved by the impugned order passed by the Trial Court on the application filed by respondent plaintiff, petitioners herein felt necessitated to present the instant revision petition seeking to set aside the said order.
The principal submission canvassed by learned Counsel appearing for petitioners is that, the Court below has committed grave error and illegality in allowing the application filed by respondent - Company, resulting in serious miscarriage of justice to petitioners, when the respondent - Company has failed to comply with the conditional interim order granted by the Trial Court Further, he submitted that the Trial Court has also failed to appreciate the fact that, the respondent Company themselves had filed the memo and given the undertaking stating that, as and when it falls due, they would pay the said amount.
As per their memo of calculation filed, the plaintiff-respondent is liable to pay a sum of Rs. 18,73,333/- and despite the order of the Trial Court, plaintiff respondent has not paid the said amount This aspect of the matter has not been looked into nor considered by the Trial Court and therefore, the Trial Court was not justified in allowing the application filed by respondent and recalling the order, issuing the show cause notice to respondent - Company Therefore, he submitted that, the impugned order passed by the Court below on the application is liable to be set aside.
In support of the stand taken by petitioners and while attacking the preliminary objection raised by respondent regarding maintainability of the revision petition against the impugned order passed on the application filed by respondent - Company, learned Counsel appearing for petitioners placed reliance on the orders passed by this Court in the case of K. Seshappa Vs. St. Francis Xavier Church, Chikkaballapur, and in the case of Kithania Textiles v. East India Transport Agency reported in ILR 1999 Kar 107 and submitted that, the revision petition filed by petitioners is maintainable and this Court can exercise its jurisdiction in the interest of administration of justice and maintaining the faith in just and proper manner Further, learned Counsel appearing for petitioners drew my attention to the decision of the Division Bench of this Court in the case of Prof. S. Dhawan Vs. Sri Dattaguru Sadananda Spiritual and Meditation Centre, and submitted that, the solemn undertaking given to the Court is meant to be obeyed and it cannot be opposed by any ingenuity whatever, more so, when the undertaking is recorded and incorporated as a part of the judgment giving rise to directions pursuant thereto. Therefore, he submitted that, this aspect of the matter has not been looked into nor considered by the Trial Court while allowing the application filed by respondent - Company Hence, the impugned order passed by the Trial Court is liable to be set aside.
Per contra, learned Counsel appearing for plaintiff-respondent - Company, inter alia, contended and submitted that, the instant revision petition filed by petitioners is liable to be dismissed at the threshold itself with exemplary cost on the sole ground that, petitioners have not approached this Court with clean hands nor have stated the true facts before the Court He drew my specific attention to the Miscellaneous Petition filed by petitioners in Misc. P. No. 491/2004 on 14th July 2004 and submitted that, the said petition is still pending adjudication before the Trial Court, wherein the petitioners have claimed the same amount that has been claimed in the instant petition also. Therefore, he submitted that, on this ground alone, the instant revision filed by petitioners is liable to be dismissed in view of suppression of material facts and not approaching the Court with clean hands.
Further, learned Counsel appearing for respondent - Company submitted that, respondent -Company has not disobeyed the undertaking given before the Trial Court in as much as the amount stated in the undertaking has been paid in full in a sum of Rs. 18,73,333/-. Therefore, only after considering this aspect of the matter, the Trial Court has passed the impugned order, recalling the show cause notice issued to respondent - Company by assigning cogent reasons and therefore, the Trial Court has not committed any error or material irregularity in passing the impugned order nor petitioners have made out any good grounds to entertain the instant revision petition. When the Trial Court has recorded the finding of fact, after appreciation of material available on record, interference by this Court, exercising its revisional power u/s 115 of the CPC is not justifiable.
In substantiation of the stand taken by respondent - Company, learned Counsel appearing for respondent - Company drew support from the order passed by this Court in the case of Krishnappa v. Rajanna and Anr. reported in 2001 (1) KCCR 206 and submitted that, if the ratio of law laid down in the referred judgment is followed and is made applicable to the facts and circumstances of the present case, then, the revision petition filed by petitioners is liable to be dismissed.
After hearing learned Counsel appearing for petitioners, learned Counsel appearing for respondent -Company and after perusal of the impugned order passed by the Trial Court, the only question that arise for consideration before this Court, is as to:
Whether the impugned order passed by the Trial Court is sustainable in law?
After critical evaluation of the relevant material available on file, after considering the rival contentions urged by learned Counsel appearing for the parties and after going through the impugned order passed by the Trial Court, I do not find any error of law or material irregularity as such committed by the Trial Court in allowing the application filed by respondent - Company and also in holding that, there is no breach of undertaking as such committed by the respondent and in recalling the order passed by the Trial Court issuing the show cause notice for disobedience.
It is significant to note that, the Trial Court, after critical evaluation of the entire material available on record threadbare, has discussed in detail by answering the only point raised for consideration before it in the ''affirmative'' The Trial Court at paragraphs 7 to 9 of its order, has considered the submission made by respective counsel appearing for the parties and at paragraph 10, has assigned valid reasons for coming to the said conclusion after careful perusal of the order sheet maintained by the Court below and specifically observed that, after careful perusal of the Affidavit filed in support of the said application, it revealed that, the plaintiff respondent - Company had issued a cheque for a sum of Rs. Six Lakhs as licence fee covering up to 31st July 2001 i.e. the months of May, June and July 2001 and the said cheque was returned when presented for realization with an endorsement. Further, it is stated that, the plaintiff has to pay advance licence fee commencing from 1st August 2001 and has to deposit the advance cheques before displaying the advertisements.
On such contentions of the defendants, the Trial Court had made an order dated 15th September 2001 directing the parties to file the memo of calculation and the plaintiff to make the payment within fifteen days thereafter and in pursuance of such an order, on an application wherein it was contended that, the amount of up to 31st July 2001 was not paid, the calculation memo was filed and that, the total amount of Rs. Eighteen lakhs has been paid as could be seen from the order sheet. Accordingly, the Trial Court came to the conclusion that, there was no order holding that, there was disobedience of the order of the Court and that, there was no disobedience of order of the Trial Court dated 15th September 2001 as no further action as per the order was taken within the period stipulated in the said order.
Further, the Trial Court observed that, the show cause notice that was ordered to be issued on 5th September 2003 was not followed by an order of disobedience of the order dated 15th September 2001 and at that stage of the matter, there was no specific order to show that, the said order was disobeyed by the plaintiff-respondent and accordingly, came to the conclusion that, the show cause notice issued against the plaintiff respondent dated 12th September 2003 deserved to be recalled and ultimately allowed the application filed by respondent and recalled the order dated 12th September 2003, issuing the show cause notice to the respondent The said reasons assigned and recording a specific finding of fact in favour of the respondent is after critical evaluation of the material available on record and after affording opportunity to both parties.
Therefore, in view of assigning valid, convincing and cogent reasons assigned by the Court below, I do not find any justification or good grounds as such made out by petitioners to exercise the revisional power u/s 115 of the of the CPC Hence, the civil revision petition filed by petitioners is liable to be dismissed.
Yet another reason as to why the instant revision petition filed by petitioners is liable to be dismissed is, for the reason that, petitioners have presented the instant revision petition on 8 July 2004 and on the same subject matter, they have proceeded to file the application for restitution u/s 144(1) of CPC read with Order 39 Rule 2A of the Code on the file of the Trial Court also on 14th July 2004 claiming the same amount. Intentionally and deliberately, this fact has not been brought to the notice of this Court during the course of submission by the learned Counsel for petitioners. When the matter is pending adjudication before the competent Court, the same would be decided by the Court where the matter is pending adjudication. He cannot maintain parallel proceedings. Therefore, interference by this Court at this stage, is not justifiable nor I find any good grounds made out by petitioners for such interference by entertaining the instant revision petition
However, so far as the reliance placed by learned Counsel appearing for petitioners is concerned, I am of the considered view that, there is no dispute, quarrel or second opinion regarding the well settled law laid down in the aforesaid judgments, but the thing is that, unfortunately the ratio of law laid down in the said judgments is not applicable to the facts and circumstances of the case on hand nor the same can be made applicable to the instant case.
Therefore, in the light of the facts and circumstances of the case, as stated above, the revision petition filed by petitioners is liable to be dismissed as devoid of merits. Accordingly, it is dismissed However, it is needless to clarify that, the observations made during the course of this order will not come in the way of the Trial Court deciding the Miscellaneous petition pending on its file and that, the Trial Court shall take independent decision on the basis of the merits of the case.