Madras High Court
Banu Mithra vs M.Balu on 9 February, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.3530 of 2008 and M.P.Nos.1 and 2 of 2008 1.Banu Mithra 2.Alexander ... Petitioners Vs. 1.M.Balu 2.M.Ekambaram ... Respondents Prayer: Petition filed under Article 227 of the Constitution of India to set aside the order and decretal order dated 30.09.2008 made in I.A.No.3805 of 2007 in I.A.No.980 of 2007 in O.S.No.237 of 2007 on the file of the District Munsif, Alandur. For Petitioners : Mr.R.Thiagarajan For Respondents : Mr.M.Vijayakumar ORDER
The petitioners/respondents/defendants have filed this Civil Revision Petition as against the order dated 30.09.2008 in I.A.No.3805 of 2007 in I.A.No.980 of 2007 in O.S.No.237 of 2007 passed by the learned District Munsif, Alandur in allowing the application filed by the respondents/petitioners/plaintiffs under Order 39 Rule 1 of the Civil Procedure Code.
2. The trial Court while passing orders in I.A.No.3805 of 2007 has inter alia observed that 'since the construction has been made during the pendency of the suit, the same has to be removed in order to avoid multiplicity of proceedings. Since the respondents/defendants have not put up the construction before the interim suspension order dated 12.10.2007 and as they have not obtained any treatment from the Honourable High Court to make construction during the period of interim suspension, this Court is of the considered opinion that the present petition is to be allowed and that the contention of the respondents/defendants that they have invested huge amount and they have obtained approval plan for construction does not give any right to them to make construction during the pendency of the suit and resultantly, allowed the application.'
3. According to the learned counsel for the revision petitioners/defendants, the trial Court has exceeded its jurisdiction while directing the removal of construction made by the petitioners herein pursuant to the orders of the Honourable High Court and that it is not proper on the part of the trial Court to interpret the order passed by the Honourable High Court in C.R.P.3293/07 dated 12.10.2007 and also the order passed in C.R.P.3293/07 dated 01.11.2007 and further that the trial Court has conducted a mini trial in the application filed by the respondents/petitioners/plaintiffs and that the settled principles of law have been ignored while ordering interim mandatory injunction at the Interlocutory level and that the trial Court has exercised its discretion arbitrarily, capriciously, perversely by granting the relief at the interlocutory stage which is particular scope of the suit and therefore prays for allowing the civil revision petition in the interest of justice.
4. It is also the contention of the revision petitioners that the petitioners herein have been permitted by this Court to proceed with the construction by reason of the suspension of the order of injunction granted against the petitioners/defendants by the trial Court in M.P.No.1 of 2007 in C.R.P.3293 of 2007 dated 12.10.2007 and therefore, there is no necessity for the true and lawful owner of the property to seek permission from this Court because of the fact that the right title and entitlement of the petitioners to put up construction in their own property is not in dispute and further that the petitioners herein have laid a suit O.S.365/05 for possession as against the respondents/petitioners/plaintiffs and this presupposes an illegal and unauthorized occupation of the respondents/plaintiffs to an extent of 540 sq.feet with manifests that the revision petitioners are in possession and enjoyment of the remaining portion of the property viz., a total extent of 4375 sq.feet.
5. The respondents/petitioners/plaintiffs have filed I.A.No.3805/07 in O.S.237/07 on the file of the District Munsif Court, Alandur inter alia stating that the suit property originally has been a vacant land and that they have entered into the suit property and put a thatched roof for the purpose of living along with their family members in 1961 and in 1980, they have put up additional pucca construction by spending an amount of Rs.4.5 lakhs and that they are in possession of the suit property for the past 46 years in a visible and exclusive manner much to the hostility of the true owner and therefore, perfected title over the suit property by means of adverse possession, etc.,
6. Added further, the respondents/petitioners have also averred that I.A.980/07 in O.S.237/07 has been allowed by the trial Court on 10.10.2007 and that the revision petitioners/respondents have preferred C.R.P. PD 3293/07 before this Court as per Art.227 of the Constitution of India and has obtained an order of interim suspension and that by virtue of that order with the help of the Inspector of Police, Meenambakkam Police Station they have entered into the suit property and threatened the family members with rowdy elements and also damaged the front portion of the suit property to an extent of 1,700 sq.feet by removing a pillar and temporary hut and started construction and that upon moving a petition for vacating interim suspension order dated 12.10.2007, this Court has passed an order of status quo and more over, the second revision petitioner/second respondent has continued his construction in the front portion of the suit property by removing their materials throughout the night 16.10.2007 and continued till 10.00 a.m. on 17.10.2007, etc.,
7. The pith and substance stand taken by the respondents/petitioners/plaintiffs is that the order dated 10.10.2007 passed by the trial Court in I.A.980/07 in O.S.237/07 has been willfully disobeyed by the revision petitioners/respondents/defendants for ulterior reasons and therefore, their act amounts to contempt of Court and therefore, prays for the relief of mandatory injunction to remove the illegal construction put up by the revision petitioners/respondents/defendants to an extent of 1,700 sq. feet approximately by raising basement work in the front portion of the suit property and restore the suit property to its original position.
8. The revision petitioners/respondents in their counter have inter alia stated that they are in possession and enjoyment of an area of 540 sq. feet in the suit property in which they have put up construction with asbestos sheet and that the learned District Munsif, Alandur has pleased to confirm the order of interim injunction dated 09.03.2007 made in I.A.980/07 in O.S.237/07 by passing an order dated 10.10.2007 which has been challenged by means of C.M.A.49/07 on the file of the Principal Sub Judge, Chengalpattu and further an I.A.875/07 has been moved for suspension of interim injunction order but the same has been dismissed by the learned Principal Sub Judge, Chengalpattu and that the Civil Revision Petition 581/08 has been filed as against the order dated 04.01.2008 passed in I.A.875/07 the order dated 04.01.2008 passed in I.A.875/07 in C.M.A.19/07 by the learned Principal Sub Judge, Chengalpattu and this Court has passed an order on 13.02.2008 'directing the trial Court viz., the District Munsif Court, Alandur to take up the suit O.S.237/07 and to dispose off the same as expeditiously as possible preferably on or before 30.06.2008, etc., and report the matter and further that the parties have been directed to maintain the status quo till date and the grant of status quo will not preclude the trial court from taking up the applications filed by the revision petitioners/respondents/defendants for restoration of possession, a contempt petition and an appointment of Advocate Commissioner and the applications have been directed to be disposed off before deciding the suit'.
9.The pleas of the revision petitioners/respondents/defendants are that they have put up construction in the suit property pursuant to the orders of this Court passed in C.R.P.3293/07 dated 01.11.2007 when the order of injunction has been originally granted by this Court and later the main Civil Revision Petition itself has been disposed off and that they have put up construction only in their property and that they have not violated the order and since the construction has been made in their property, there cannot be a blanket order of injunction as against the true and lawful owner of the property and also that they have not put up any construction or disturb the possession of the respondents/petitioners/plaintiffs in an area measuring an extent of 540 sq. feet which is illegally and unauthorizedly occupied and after the final orders passed in C.R.P. 3293/07, they have not carried out any fresh construction as alleged and further that they have filed O.S.365/05 on the file of the District Munsif Court, Alandur as against the respondents/petitioners for recovery of possession of the area in their occupation and in such circumstances, the relief sought for by the respondents/petitioners in the interim application goes beyond the purview of the suit and as such the same cannot be entertained, since it lacks bonafides and is devoid of merits.
10.The learned counsel for the revision petitioners urges that from 12.10.2007 to 16.10.2007, the petitioners have proceeded with the construction and later stopped with the construction and there is no evidence that the revision petitioners have put up the construction after 17.10.2007 and that they have not put up construction before the interim suspension order dated 12.10.2007 in the Civil Revision Petition and that the statutory authorities have given the plan to the petitioners and that the construction has not taken off and it is not in the initial stage and there is no material before the Court to substantiate a plea that there has been a construction and that the unfinished construction at the basement level is in existence and there cannot be any fetter for a owner of the property to put up the construction and that the order of suspension will enable the revision petitioners to put up construction since the lower Court's order has been kept in the cold storage.
11.The learned counsel for the revision petitioners contends that the relief of mandatory injunction is granted only to restore the status quo and the same is not granted to establish a new state of things and seeks in aid the decision THE UNIVERSITY OF BIHAR AND ANOTHER V. RAJENDRA SINGH, AIR 1978 PATNA 144, wherein it is observed as follows:-
'If a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the "status quo" and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. Where the delay in payment of the salary to a Lecturer by College was due to the fact that his case for concurrence was pending before the Public Service Commission and the statutory provisions required the University to obtain concurrence from the Public Service Commission before regular salary could be paid to him, held no direction could be issued to pay the plaintiff-Lecturer his salary during the pendency of the suit. For salary directions should have been made only for payment of certain amount as an ad hoc payment.' He also presses into service the decision VIDYA CHARAN SHUKLA V. TAMIL NADU OLYMPIC ASSOCIATION AND ANOTHER, AIR 1991 MADRAS 323 at page No.324, whereby and whereunder it is inter alia observed that 'interim mandatory injunction for restoring status quo ante can be passed by ignoring or postponing action under Rule 2A of Or.XXXIX of Civil Procedure Code or for contempt etc.,'. Further in the aforesaid decision, it is also held that 'for the violation of temporary or interim injunction besides a remedy provide under Rule 2A of Or.XXXIX of Civil Procedure Code the Court can also exercise its inherent powers and moreover, the powers under Arts.215, 225 of the Constitution of India are also available to the High Court to undo the wrong.'
12.Continuing further, the learned counsel for the revision petitioners cites the decision J.UMA MAHESWARI V. S.PETER, 2006(5) CTC 568, at pg.572, wherein this Court has held that 'Even without giving a direction to comply the mandatory provisions for supplying the copy of the plaint and document relied upon and Or.XXXIX Rule 3, Civil Procedure Code the injunction order has been passed. Therefore, the injunction granted by the District Munsif, Poonamallee is liable to be suspended/set aside and hence the same is suspended.' He also relies on the decision RENUKA DEVI V. D.MANOHARAN, 1997 (III) CTC 567, wherein this Court has held that ' person coming to Court with false case with aid of false and fraudulent document should be thrown out at threshold, etc., and that the Court has power to grant relief and should not close its eyes on technicalities.'
13. Yet another decision ACHUTANANDA BAIDYA V. PRAFULLYA KUMAR GAYEN AND ORS., 1997(II) CTC 333 at pg.336 is relied on the side of the revision petitioners wherein the Honourable High Court has held that ' the High Court can interfere with finding of the fact of Subordinate Court if such finding have been reached without any evidence or on manifest misreading of evidence thereby indulging in improper exercise of jurisdiction or of its conclusions are perverse.'
14. Added further, he also relies on the decision SURYA DEV RAI V. RAM CHANDER RAI AND OTHERS, 2003 AIR SCW 3872, whereby and whereunder the Honourable High Court has held that 'the Interlocutory orders passed by the Courts Subordinate to High Court are open to challenge in and continue to be subject to certiorari and supervisory jurisdiction of High Court.' Further, he cites the decision SECURITIES AND EXCHANGE BOARD OF INDIA V. ARIHANT COTSYN LTD. AND OTHERS, (2005) 13 SUPREME COURT CASES 498 at pg.499, wherein the Honourable High Court has held that 'the revisional jurisdiction of the High Court under Arts.227 and 226 can always be exercised where the Subordinate Court is found to have acted without jurisdiction or in excess of jurisdiction and for the purpose of keeping the Subordinate Court within bounds when the Subordinate Court has assumed jurisdiction which it did not have or has failed to exercise jurisdiction which it does not have, etc.,' Also on the side of the revision petitioners, the decision ALAGI ALAMELU ACHI VS. PONNAIYA MUDALIYAR, AIR 1962 MADRAS 149 is relied on to the effect that 'person in wrongful possession is entitled to injunction against the lawful owner.'
15. Per contra, the learned counsel for the respondents/petitioners/plaintiffs submits that the respondents/petitioners/plaintiffs have filed a suit O.S.No.237/07 on the file of the District Munsif, Alandur for permanent injunction and that in I.A.930/07, an injunction has been granted on 09.03.2007 and that in the year 2005, the first revision petitioner has filed a suit O.S.No.365/05 against one of the respondents/plaintiffs and the same has been dismissed for default and that the respondents/plaintiffs are in possession for the past 46 years and further that the respondents/plaintiffs have filed I.A.980/07 praying for the relief of ad interim injunction restraining the revision petitioners/defendants, their men from interfering with the peaceful possession and enjoyment of the suit property and that on 10.10.2007, the trial Court has passed an order of making the ad interim injunction already granted on 09.03.2007 as absolute and allowed the application and that the contention of the revision petitioners is that the suit property is a vacant land and that the sanction plan is not related to the suit property and that the survey number is sub divided and as against the orders passed in I.A.No.3805 of 2007 dated 30.09.2008, the revision petitioners/defendants have a remedy to prefer an appeal as per Or.43 R.1(r) of the Civil Procedure Code and therefore without exhausting the remedy provided under the Civil Procedure Code, it is not open to the revision petitioners to prefer the present Civil Revision Petition and resultantly, the same is not maintainable.
16. The learned counsel for the respondents/plaintiffs cites the decision Rt.Rev.R.T.BASKARAN, BISHOT OF VELLORE V. ARULDOSS AND ANOTHER, 1996(II) CTC 299, wherein this Court has held that 'order granting or refusing injunction is appealable and the revision cannot be maintained against such order and further that the revision is maintainable only against order passed in appeal.'
17. On the side of the respondents/plaintiffs, the decision PUNJAB NATIONAL BANK V. O.C.KRISHNAN AND OTHERS, (2001) 6 SUPREME COURT CASES pg.569 is relied on to the effect that 'Even though the provision under an Article cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is alternative remedy available, judicial prudence demands that the Court refrains from exercising within jurisdiction in the said constitutional provisions.'
18. The learned counsel for the respondents/plaintiffs brings it to the notice of this Court in I.A.1604/07 in O.S.237/07, an Advocate Commissioner has filed his report (after inspecting the suit property on 22.04.2007 at 11 a.m.) inter alia stating that the suit property in his rough sketch has been shown as A B C D and he has found that there is a constructed portion in the suit property shown as E F G H in his rough sketch and the suit property is measuring north to south 35 feet on both sides and east to west on both sides 125 feet and the constructed portion is measuring north to south on both sides 29' 6" and East to West on both sides 47' 3" and there is a vacant land measuring 2 feet on the eastern side of the constructed portion and there is a vacant land measuring 7' 9" on the northern side of the constructed portion and 6' 9" vacant land on the southern side of the constructed thereon and there are three houses constructed thereon and there are three bathrooms and latrine constructed in the said three houses and that the electricity meter board has been fixed on small wall on the southern side of the constructed house etc.,. Further, the said report also goes on to add that '...... there are lot of wooden pieces and fire wood stored on the western side of the constructed portion and the washed clothes are placed on ropes for drying on the western side of the constructed portion and there is mud even on the western side of the constructed portion near the fire wood stored.
19. The learned counsel for the respondents/plaintiffs submits that the revision petitioners herein have figured as appellants in C.M.A.49/07 on the file of the Principal Judge, Chengalpattu and they have projected I.A.875/07 under Or.41 R.5 of Civil Procedure Code to suspend the order of injunction made in I.A.980/07 in O.S.230/07 dated 10.10.2007 by the trial Court and that the said I.A.875/07 has been dismissed on 04.01.2008 holding that 'temporary injunction need not be suspended.'
20. It is not out of place to make a mention that the respondents/petitioners/plaintiffs in the plaint in O.S.237/07 on the file of the District Munsif Court, Alandur have prayed a relief of permanent injunction restraining the revision petitioners/respondents/defendants or their men, legal representatives, agents or any one acting on their behalf from interfering with their peaceful possession and enjoyment in the schedule mentioned property except in accordance with law.
21.As a matter of fact, the respondents/petitioners/plaintiffs in their plaint in paragraph 3 have inter alia stated that ' in the course of their peaceful enjoyment they have initially put up thatched roof and later also put up additional pucca construction in two portion in the suit property by spending nearly 4.5 lakhs as they are deemed to be a lawful owner of the suit property and that they are residing separately in the above said each portion of the suit property and further that their possession of the suit property has been admitted by the first petitioner/first defendant, who alleged to be the owner of the suit property and has filed a suit in O.S.365/05 alleging that they are the title owner of the suit property and has sought the relief of mandatory injunction to remove the construction put up by the respondents/plaintiffs and the same has been dismissed on 26.06.2006 for non prosecution and that the second revision petitioner/second defendant is a builder allegedly entered into an construction agreement with the first revision petitioner/first defendant in the suit property for construction of flats and on 02.03.2007, the revision petitioners/defendants along with their men attempted to evict the respondents/plaintiffs from the suit property, etc., and that the revision petitioners/defendants are estopped claiming any right over the suit property as the respondents/defendants have got prescriptive title by way of Adverse possession.
22. According to the learned counsel for the respondents/plaintiffs, Section 41(a) to (j) of the Specific Relief Act, 1963 speak of the contingencies when an injunction cannot be granted and he has invited the attention of this Court to Section 41(a) to (j) which run as follows:-
41(a) - 'to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent the multiplicity of proceedings.
(j) - 'when the plaintiff has personal interest in the matter.'
23.Really Speaking, Section 41 of the Specific Relief Act, 1963 does not lay down an exhaustive list of cases when the relief is refused. However, the ingredients mentioned in Section 41 can well be taken into account for refusing such discretionary relief in the considered opinion of this Court.
24.At this stage, the learned counsel for the revision petitioners/defendants submits that the relief of mandatory injunction can be granted if a right of a party is infringed and as far as the present case is concerned, there cannot be an injunction against a true and lawful owner and therefore, the order passed by the trial Court in I.A.3805/07 dated 30.09.2008 is liable to be set aside by this Court to prevent aberration of justice.
25.It is to be borne in mind that a mandatory injunction is one where a direction is issued to a person to do a particular thing. The interim mandatory injunction will have to be granted with due care and caution and in rare cases. But, the rare cases are those where extreme hardship is likely to be caused to the plaintiffs and where wrong has been done recently and wrong has not been acquiesced by the plaintiffs and the special circumstances necessarily have to be proved by the plaintiffs.
26.This Court aptly quotes the decision MRS.VIJAY SRIVASTAVA V. M/S. MIRAHUL ENTERPRISES, AIR 1988 DELHI 140, wherein it is held that 'it cannot be said that no mandatory injunction can be granted by the court on an interlocutory application in any circumstances. There is no bar to the Court's granting interlocutory relief in the mandatory form though in doing so, the Court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of 'rare' and 'exceptional' one, is to be judged according to the facts and circumstances surrounding it. A mandatory injunction can be granted on an interlocutory application after notice to the defendant and after hearing the parties'. Further this Court recalls the observation made in the decision JAMES AND OTHERS V. JAIMSON JAMES, 1998 AIHC at pg 2063 wherein it is held as follows:-
'The Courts have inherent power to protect the rights of parties pending suit. Hence, the plaintiff cannot be denied the relief of interim mandatory injunction on the specious plea that there is no prayer for such relief in the plaint. Even so, the Court can take note of the facts and circumstances and grant appropriate directions moulding the relief in the interest of justice as otherwise a hyper technical view will result in manifest injustice. Therefore the grant of relief in terms of interlocutory application is legal.'
27. Added further, this Court points out the decision 'DORAB CAWASJI WARDEN V. COOMI SORAB WARDEN, (1990) 2 SUPREME COURT CASES 117, at page No.118 wherein the Honourable Supreme Court has observed that ' the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last non contested status which proceeded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, Courts have evolved certain guidelines which are
i) the plaintiff has a strong case for trial that is, it shall be of a high standard than a primafacie case that is normally required for a prohibitory injunction.
ii)It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
iii) The balance of inconvenience is in favour of the one seeking such relief. ' And further at page 120, it is also observed that 'the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of facts and circumstances in each cases. Though the above guidelines are neither exhaustive nor complete or absolute rules and there may be exceptional circumstances needing action, applying them as prerequisite for the grant of refusal, such injunctions would be a sound exercise of a judicial discretion.'
28. In SAKTHI DURGA BUILDERS AND DEVELOPERS V. P.S.RAMAN, 2007(3) CTC at page 163(D.B.), this Court has held that ' interim mandatory injunction can be granted only when there is a strong primafacie case apart from other aspect regarding irreparable loss and the balance of inconvenience and tests to be satisfied are far more stringent in case of an interim mandatory injunction and can be granted only in exceptional cases'.
29. It is quite pertinent for this Court to point out the test to be applied in issuing mandatory injunctions on interlocutory application is well described in 24 Hallsburry's Law of England (Fourth Edition) at paragraph 948 which runs as follows:-
'A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of each complaint is made, so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on interlocutory application.'
30.Be that as it may, one cannot loose sight on a relevant fact that an appeal lies against the 'order' under Section 104 read with Or.43 R.1 of Civil Procedure Code where 'the orders' against which an appeal will lie have been clearly adumbrated. Unless there is an 'order' as per Section 2(14) of Civil Procedure Code and unless that 'order' falls within the list of 'orders' specified in Or.43 of Civil Procedure Code, an appeal will not lie in the considered opinion of this Court.
31.Admittedly, a right of appeal is always a creature of statute and the right of appeal as per Or.43 R.1 of Civil Procedure Code is an appeal both on facts and law in the considered opinion of this Court. Generally speaking, 'the term person aggrieved' includes anyone who has a real grievance because an order has been made prejudicely affecting his interest. In other words, the term 'aggrieved' refers to a substantial grievance, a denial of some pecuniary, personal or property right or the imposition upon the person of a burden or obligation. Moreover under statutes enabling the right of appeal to a party aggrieved by an order or a judgment, a party affected is one whose pecuniary interest is directly affected by the adjudication; one whose right of property may be established or divested thereby. No wonder, the revision petitioners are really the aggrieved persons in regard to the orders passed by the trial Court in I.A.3805/07 dated 30.09.2008.
32.Admittedly, the revision petitioners have not resorted to the remedy of filing of an appeal against the order passed in I.A.3805/07 dated 30.09.2008 by the trial Court. In this connection, this Court points out the decision PRABHU NARAIN KHATI AND ANOTHER VS. DAULAT RAM VARMA, AIR 1988 RAJASTHAN at pg.53, it is held that 'where an application is filed under Or.39, R.2 read with Section 151 of the Civil Procedure Code, mere mention of Section 151 does not change its character or complexion and no revision lies against an order passed on such an application and such an order is appealable under the relevant provisions of the Civil Procedure Code'.
33.The learned counsel for the revision petitioners/defendants refers to the settlement deed dated 11.11.1995 executed by Mrs.Jeyalakshmi in favour of the first revision petitioner/first defendant (being an adopted daughter of C.S.Damodaran Naidu), the sale deed dated 29.08.1942 and the sale deed dated 06.08.1962 and submits that as against true and legal owner there cannot be an order of injunction much less the order of mandatory injunction and therefore, the order passed by the trial Court in I.A.3805/07 is not valid in the eye of law. Further on the side of the petitioners, it is brought to the notice of this Court that an order of interim suspension has been granted on 12.10.2007 by this Court in Civil Revision Petition 3293/07 and later on 16.10.2007, the order of status quo has been passed by this Court in Civil Revision Petition 3293/07. At this juncture, it is to be noted that this Court has dismissed the Civil Revision Petition (PD) 3293/07 on 01.11.2007 granting liberty to the petitioner therein (the second revision petitioner herein in C.R.P. 3530/08) to approach the appropriate appellate Court within a period of ten days from the date of receipt of a copy of the order.
34. Apart from the above, the learned counsel for the revision petitioners informs this Court that an interlocutory application to restore the suit O.S.365/05 which has been dismissed for default is pending before the trial Court. Also, it transpires that a contempt application is pending in O.S.237/07 on the file of the trial Court.
35. It is relevant to point out that in our processual Jurisprudence the right to relief ought to be judged to exist as on the date a party initiates the legal proceedings. If a fact, arising after the lis has come to Court and has basic impact on the right to relief are the method of moulding it, is brought to the notice of a Court of law, certainly it cannot be blind to the events which stultify or render inert the decretal remedy in the considered opinion of this Court. Moreover, on an interlocutory application filed under Or.39 of the Civil Procedure Code, the relief of mandatory injunction can be granted by a Court of law based on the facts and circumstances of a particular case in the considered opinion of this Court.
36. On a careful consideration of respective contentions, this Court is of the considered view that the civil revision petitioners/defendants cannot invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India when they have a remedy of filing an appeal as per Or.43 R.1(r) of the Civil Procedure Code in regard to the order passed in I.A.3805/07 in O.S.237/07 dated 30.09.2008 by the trial Court and moreover, the jurisdiction under Article 227 of the Constitution of India has to be sparingly exercised by this Court and in this view of the matter, the Civil Revision Petition is dismissed.
37.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Liberty is granted to the revision petitioners to work out their remedy under the relevant provisions of the Civil Procedure Code. However, the trial Court is directed to dispose off the pending contempt application in O.S.237/07 within a period of two weeks from the date of receipt of a copy of this order, after providing due opportunities to the parties concerned. Likewise, the trial Court is directed to dispose off the pending Interlocutory Application in regard to the restoration of the suit O.S.365/05 after providing adequate opportunities to the parties concerned. The connected miscellaneous petitions are closed.
vri To The District Munsif, Alandur Note:The Registry is to return the certified copy of the order dated 30.09.08 in I.A.3805/2007 in O.S.237/07 to the petitioners' counsel and the petitioners are directed to furnish the xerox copy of the impugned order for record purpose, to be kept by the Registry.