Madras High Court
E.K. Palanisamy vs A.M. Murugesan And Others on 14 July, 1998
Equivalent citations: 1998(3)CTC434
ORDER
1. These revisions are filed by the defendant in O.S. No. 132 of 1998 on the file of the Principal Subordinate Judge, Erode. The suit mentioned above filed by the respondents restraining the defendant, his men agents and power agents from interfering with the plaintiffs' peaceful possession and enjoyment of the suit properties; for payment of costs by the defendants and such other further remedies.
2. The description of the property as found in the schedule to the plaintiff reads thus:
"Erode Registration District, Erode Sub Registration District, erode Town, within the Erode Municipal Limits, original old S.F.Nos.100 A1, 100 C1 Old S.F.No.85/2, 85/3, 85/4 Resurvey Ward A Block 15 T.S.No.2, 3, 4. In this the land and the sheds put up. within the following boundaries:
South of the Bus stand road North of the land of Thangamuthu vaigars East of Royal Thetre West of the land and passage of the Municipality, with all the purtenances and all the other easementary rights in an area of 0.56307 square metres".
3. In the plaint it is stated that the plaint properties are their ancestral properties. The properties were originally purchased by one Arumugha Mudaliar and A.Marimuthy Mudaliar who are the sons of Arunachala Mudaliar, on 4.5.1942. Subsequently, the two brothers divided the properties along with other properties on 31.12.1956. A schedule properties were allotted to the share of Arumugha Mudaliar and B schedule properties were allotted to the share of Marimuthu Mudaliar. Both of them were allotted their shares in the suit properties.
4. Marimuthu Mudalier and his sons divided their respective shares in the suit properties under a registered partition deed dated 9.7.1969 and the suit properties were allotted to the share of plaintiffs 1 to 3 in this case. In the other branch of Arumuga Mudaliar also there was a partition on 25.2.1970 by way of a panchayat karar and the portions of the suit properties were allotted to the shares of Palaniappan and Shanmugam, the fourth and fifth plaintiffs in the suit. One of the sharers Palaniappan who took a share as per family arrangement on 25.2.1970 died and his rights devolved on plaintiffs 6 and 7. The respective parties are in possession and they are also paying taxes due to the Government.
5. It is also stated that the defendant is not in any way connected to the family of the plaintiffs or to the suit properties and he is attempting to trespass into the suit properties and interfere with the peaceful possession and enjoyment and he has no right to do so.
6. It is also stated that the defendant along with his men attempted to tresspass into the suit properties on 17.3.1998 and the plaintiffs prevented him to do so. But the defendant continued to attempt which necessitated the filing of this suit.
7. Along with the suit, the plaintiff the respondents herein filed an Interlocutory Application No.114 of 1998 for injunction to restrain the defendant from interfering with their possession. The schedule of properties is also the same as described above. On the interlocutory application, the lower Court, as per order dated 20.3.1998 passed the following order:
"Heard . perused the affidavit and the documents. Prima facie case is made out. Balance of convenience is in favour of the petitioner. The documents filed by the petitioners reveal that they are in possession of the properties. Hence nolice to the respondent by 6.4.1988. Ad-interim injunction is granted till then. Order 39 rule 3 is to be complied with".
Against the said order, the defendant has preferred Civil Revision Petition No.988 of 1988.
8. On 24.3.1998 the plaintiffs filed another application under Section 151 of the Code of Civil Procedure seeking police protection to implement and enforce the orders of the Court, and in the affidavit in that Interlocutory Application No.118 of 1998, it is stated in para 3 thus:
".....Inspite of the orders of this Hon'ble Court this respondent continues to threaten our peaceful possession and enjoyment of the suit properties. The respondent is highly influential person with men, material and money at his command. He is a notorious criminal minded man. He is not a law abiding citizen. Therefore, even after the orders of ad-interim injunction the respondent continues to disturb our possession. The police authorities also are not giving protection to safeguard our property as the matter is of civil nature. Unless this Hon'ble Court grants suitable directions to the police authorities, We cannot protect our properties, but will be losing our own very very valuable properties. The valuable orders of this Hon'ble Court is not obeyed. Even though we have obtained orders of this Court we are not in a position to have its full benefit owing to the continuous obstruction by the respondent. Hence, this Court is to resort to the law enforcing machinery that the order is obeyed".
On the said application, the lower Court passed the following order on 25.3.1998:
"Heard. The counsel for the petitioner argued that the police has not given any aid and protection to implement the order and even refused to receive complaint and issue receipt. He also states that respondent is giving trouble even though he know the orders of the Court. In support of his argument he cited the decision of the Madras High Court in Kudian and Five others v. B. Ranganathan, 1991(1) L.W 604, Wherein it is held that it is necessary to give direction to the police. Order to implement the order. Hence this petition is allowed."
This order is challenged in the Civil Revision Petition No.997 of 1998.
9. In this connection, it may also be stated that on the very next day, i.e. on 26.3.1998 the petitioner herein filed in I.A.No. 122 of 1998 for setting aside the order, granting police protection and he also wanted the injunction application to be heard. He also brought to the notice of the Court that by virtue of the order granting police protection, the plaintiffs wanted him to be thrown out of the properties with the aid of police.
10. In the affidavit, it is further stated that even the summons and other various letters issued by the plaintiffs were addressed to the petitioner/defendant as if he is residing in the plaint schedule properties. When the plaintiffs themselves admitted that the defendant is residing in the suit properties, there is no scope for granting injunction.
11. It is averred in the affidavit that the order in the ad-interim injunction application passed by the lower Court was also not served on the petitioner/defendant and therefore, there cannot be any question of violation of any order. He never knew about such an order. In paragraph-3 of the affidavit it is further stated that he has received the copy of the plaint, affidavit, petition and documents by post on 24.2.1998 and he was served with summons in the suit and notice I.A.no.114 of 1998 only on 25.3.1998. He was not served with any injunction order.
12. He also stated that the plaintiffs were not residing in the plaint schedule properties when the application was moved before the lower Court. He wanted the ex parte order giving police protection to be suspended. The plaintiffs sought time and the lower Court was generous in granting time. This revision was filed only because the lower Court did not refuse to grant time and in the meanwhile great mischief was done to the building belonging to him and his children were also not in position to write the examination since everything was thrown to the streets.
13. When the matter came up for admission I ordered notice of motion and the orders under challenge, were also suspended. The order of suspension is still in force.
14. After service of notice, learned counsel for the respondents entered appearance and also filed a counter supporting the impugned order.
15. After hearing both the counsel, I feel that it is a case where the Court has exercised its jurisdiction illegally and therefore the same is liable to be set aside.
16. From a reading of the plaint, it is clear that the averments therein show that the plaintiffs claim possession over the entire property. But, according to their own showing, it is seen that the petitioner is in possession and also residing in the building mentioned above. Before filing the suit, the very same plaintiffs filed caveats and addressed to the petitioner. The address of the petitioner shows that he is residing in the suit properties, i.e. in door No. 1A, B, C, D-3, E.V.N. Road, Erode. Three caveats were filed. Properties were also described in each and every caveat application and while describing the schedule, the building of the defendant and the caveat address is also included. The schedule of properties as seen in the caveat reads thus:
But, in the properties, as described in the plaint, after describing the boundaries, they did not give the number of sheds, but simply stated 'sheds put up within the following boundaries'.
17. When this was brought to the notice of this Court, learned counsel for the respondents admitted that they have issued caveat and atleast in a portion the petitioner is having his residence. The argument was that it is a large area, most of which is in the possession of the plaintiffs, I can understand the argument if only they have stated so in the plaint. As I said earlier, they claim exclusive possession of the entire item. In the plaint, there is no such statement and while describing the address of the defendant, it is simply stated that the defendant is residing at Metur Road, Erode, without giving the house address. That shows that the plaintiffs wanted to conceal something before the Court and the lower Court also believed the case put forward by the plaintiffs as if they were in possession of the entire suit properties. The lower Court was misled by the facts put before it, and the order was obtained to the detriment of the petitioner.
18. Learned counsel for the petitioner also submitted that even before the police could intervene, pursuant to the order, the difficulties were brought to the notice of the lower Court. But the lower Court only adjourned the case and it did not even think of suspending the order. The consequence was severe and the petitioner was driven out of the house and the entire building occupied by him was demolished and the moveables kept therein were also thrown to the street and entire business run by him also collapsed.
19. I think that this is a case where the plaintiffs must be asked to explain the mischief they have done. Whether the plaintiffs are the owners cannot be decided at this stage. That is a matter to be decided by the lower court, during trial. On the basis of the false averments, the plaintiffs have obtained an advantage in their favour and even without hearing the petitioner, he was driven out of the properties.
20. The Honourable Supreme Court considered the question as to the circumstances under which an ad interim injunction could be granted. In a decision reported in Dalpat Kumar v. Prahlad Singh, . Their Lordships held thus:
...But the Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injuries to either party and whether the plaintiff could be adequately compensated if injunction is refused The phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima fade case and balance of convenience. The respondents can be adequately compensated on their success."
21. In a decision in Shiv Kumar Chadha v. Municipal Corpn. of Delhi, Their Lordships have held thus:
"A party is not entitled to an order of injunction as a matter of right or Course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles -ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him." (Italics supplied.)
22. In a decision of the Hon'ble Supreme Court in Mahadeo Savlaram Shelke v. Pune Municipal Corpn., , Their Lordships followed the earlier decision in Shiv Kumar Chadha's case, . Their Lordships also followed the earlier decision in Dalpat Kumar's case, , wherein Their Lordships have held thus:
"The existence of the prima facie right and infraction of enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial, Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-'interference by the Court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that 'the balance of convenience' must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihook of injury and if the Court considers that pending the suit, the subject- matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
23. On going through these decisions can it be said that/the impugned order in I.A.No.114 of 1998 satisfies the legal requirement. Though the lower Court says that there is a prima facie case and the balance of convenience, I do not think that the lower Court has entered a finding that if the urgent relief is required or for the refusal of the relief to put the petitioner into hardship and irreparable injury, all the three conditions will have to be satisfied. It may not be out of place to refer to the decision of the Hon'ble Supreme Court reported in Morgan Stanley Mutual Fund v. Kartick Das, wherein Their Lordships considered this question in detail and the relevant portion reads thus: (Para 36 to 38) "As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should "weigh with the court in the grant of ex parte injunction are:-
(a) Whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would ex parte a party applying for ex parte injunction to show utmost good faith in making the application.
(f) even if granted, the ex parte injunction would be for a limited period of time.
(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.
In United Commercial Bank v. Bank of India, this Court observed: (PP.787-88, paras 52-53) "No injunction could be granted under Order 39, Rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom? In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.
Even if there was a serious question to be tried, the High Court held to consider the balance of "convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rs.85,84,456. The fact remains that the payment of Rs.36,52,960 against the first "lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs.49,31,496 was also made under recipient as well as against the letter of guarantee or indemnity executed by it. A payment 'under reserve' is understood in banking transactions to mean that the recipeient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Further more, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted.".
24. I do not think that any of the legal principles are satisfied in the impugned order. The plaintiffs have filed a suit as if they were in exclusive possession of the entire property. It is denied by their own admission. It is not disputed that the door No.1-A, B, C, D & 3, E.V.N. Road, Erode are situated within the boundaries described in the plaint schedule property. The plaintiffs claim exclusive possession of all the properties within the boundary. That statement is false since the caveat itself was addressed to the defendant only to that address and the address shown in the caveat application bears all these door numbers. From the address of the plaintiffs it is seen that they are not residing anywhere in the plaint property. While describing the address of the defendant in the plaint, they did not give the door number.
25. A further allegation is made that the defendant is going to trespass into the properties. All these show that the plaintiffs wanted to play a fraud and get an order of injunction. The Court was also made a victim. Therefore, the impunged order has to be set aside and I do so.
26. Once the order of injunction itself is not valid, was the Court justified in granting police protection ? The lower Court relied on the decision of this court reported Kudian and Five others v. B. Ranganathan, 1991 (1) L.W. 604. In that case, Ratnam, J., only considered the power of the court to issue necessary directions to the police. The court has got the powers to implement the order of injunction provided circumstances so warrant. In the decision cited, supra, His Lordship only held that the police help can be ordered and it is also open to the Court to resort to law enforcement machinery to see that the order is obeyed.
27. The power of the court is not a matter in issue. The question is, under what circumstances, the Court can compel the police to implement the order?
28. Learned author A.N. Saha in 'The Code of Civil Procedure' -5th edition 1996, has stated thus : Order 39, R.2-A Syn. 19 "Police Help In Injunction: Police aid for implementation of order of injunction is permissible. But, direction to implement the order of ex parte injunction should not be made when the question if there was intentional violation or not can be decided through local inspection under Order 39, Rule 7, C.P.C. It is proper men to issue Commissioner under Order 39, Rule 7, C.P.C. It is not collection of evidence. High Court in writ jurisdiction can order police to implement an order of injunction. It is the primary duty of executive to comply with orders of judiciary and if necessary, even by use of reasonable force. In a case orders were passed to remove obstruction i.e., earthen dam, but they had not been complied with. The reason given by executive for non-compliance with order of Court that there was law and order situation created by villagers, cannot be a ground to abstain from its duty. It was held that in such a case, executive was duty bound to comply with orders of Court, firstly by pursuing villagers and if efforts fail, then by use of reasonable force which would include police help, and if necessary, para-military force also. But ordering police help to enforce an ex parte interim injunction order without hearing the other side, in exercise of inherent power is not permissible." (Italics supplied).
29. In a recent decision of the Bombay High Court, this question has been considered. In Ratnabai v. Satwarao, a learned single Judge of Bombay High Court has held thus:
"..... It is no doubt that the police help is an extraordinary mode or procedure to implement the execution of the decree or orders. In other words, police help is to be regarded as an extreme step, and as such it should not be recommended unless the Court is fully convinced of the existence of a grave emergency." (Italics supplied.) That is the case where His Lordship held that the decree holder, for getting the police help has to state on what grounds he wanted that help. The reasons should be either, because of apprehension of violence or obstruction from judgment-debtor himself or at his instance by others or because of conditions of a general character such as the locality where execution will have to be effected being in a disturbed state or a class of people, similarly situated being likely to make a common cause with judgment-debtor and resist execution. His Lordship emphasised that the 'special procedure for police help would not be allowed unless there are reasonable grounds to suppose that the execution will not be effected without serious danger to public peace, because of apprehension of violence or obstruction from the judgment-debtor himself or because of the conditions of general character as such where the execution will have to be effected being in a disturbed state or a class of people, similarly situated being likely to make a common cause with judgment-debtor and resist execution, his Lordship emphasised that the 'special procedure for police help would not be allowed unless there are reasonable grounds to suppose that the execution will not be effected without serious danger to public peace, because of apprehension of violence or obstruction from the judgment-debtor himself or because of the conditions of general character as such where the execution will have to be done in disturbed stage or a class of people similarly situated being likely to make common cause that the judgment- debtor can resist the execution. Besides this , in addition to the circumstances enumerated above to grant police help the Court must be fully convinced of the existing of grave emergency and to prevent commission of cognizable offence by the judgment-debtor or on his behalf by any person or a third party.'
30. If this is the law even in the case of final decree, enforcement of an ad-interim injunction order with the aid of the police should be viewed little more strictly. The Court must also enter a finding that the police help is necessary in such a case there is emergent circumstances which warrants the implementation of the order by the/police.
31. I have also extracted the order granting police protection. It only says that the plaintiffs sought for police help and since the police did not help, the Court has ordered for police protection, since the Court has got powers, in view of the decision reported in Kudian and Five others v. B. Ranganathan, 1991 (1) L.W. 604.
32. Is there any emergency for granting police protection ? The court must understand that all these orders are passed without hearing the other side and the serious results will follow in such cases. In implementing the order without notice, should not the Court be little more cautious, While exercising its powers? Merely because the court has got powers to implement the order, it should put another person to hardship, who is not even heard. It is an injustice done to that person who has not been issued notice.
33. Even in the affidavit seeking police help, it is not averred that the order of injunction has been served on the petitioner. In the affidavit in I.A..No.l22 of 1998 Filed by the petitioner to suspend the order, he has specifically averred that he has not received any injunction order and he came to know about it when he received the summons on 25.3.1998. The only allegation in I.A.No.118 of 1998 is that the petitioner is a notorious criminal; he is not a law abiding citizen and even after the ad interim injunction, the petitioner herein continues to disturb his possession.
34. I do not think that the above grounds are sufficient to pass an order to implement the order of injunction. The Lower Court should have seen that the suit itself was for injunction and after it is implemented at interlocutory application stage itself it amounts to passing a decree without notice to the defendant and that will have serious consequences. The lower Court has acted illegally in passing the impugned orders.
35. Learned counsel for the respondent also submitted that he also cannot support the order granting police protection and even the application for injunction in I.A.No.l 14 of 1998 may be directed to be disposed of by the lower court after maintaining status quo.
36. What is status quo? According to the petitioner, he has been thrown out on the basis of the impugned order. Prima facie he was in possession of the properties on the date of the suit. If status quo as on date is order, that will be a premium to the fraud committed by the plaintiffs, and that will permanently prevent the petitioner from entering into the property.
37. I cannot pass such an order as requested by learned counsel for the respondent. In Indian Bank v. Satyam Fibres India Pvt. Ltd., Their Lordships have held thus:
"Since fraud affects the solemnity regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its orders."
38. I have followed the above cited decision in Renuka Devi v. D.Majohara, 1998 (1) L.W. 355 and I have held that it is the court to undo the injustice that is done in the case. The court was misled by the mis-representation of the plaintiffs. The result was the petitioner was thrown out from the property with the police help. Naturally, he must be restored to possession. Prima facie, I find that a fraud has been committed by the plaintiffs.
39. Consequently, the ad-interim injunction granted by the lower court is set aside and I do not find any ground to support the ex parte order granting police help and therefore the same has also to be set aside and I do so.
40. Since the petitioner was in possession of the properties, I do not think that the injunction application filed by the plaintiffs could be maintained and therefore, it shall stand dismissed and the petitioner will be entitled to be in possession of the property.
41. I direct the lower Court to put the petitioner in possession forthwith and without any further application for the same. I also direct the lower Court that the petitioner must be restored to the possession of the properties with necessary police help and that too without any application. I give such directions since I feel that grave injustice has been done by the lower court to the petitioner, without hearing him. It is the duty of Court to see that injustice is undone. I also make it clear that even if the suit is allowed to be with drawn, or otherwise non-prosecuted this order will have to be implemented.
42. With the above observation, the civil revision petitions are allowed with costs. Advocate fee - Rs. 2,000 each. Consequently, the connected C.M.Ps. are closed.