Andhra HC (Pre-Telangana)
Meghraj Gayatri Devi vs Jetling Rajeshwar on 5 March, 2001
Equivalent citations: 2001(4)ALD26, 2001(3)ALT267, AIR 2001 ANDHRA PRADESH 349, (2001) 1 ANDHWR 87, (2001) 3 ANDH LT 267, (2001) 3 CURCC 84
ORDER
1. The petitioner is the plaintiff. Aggrieved by the order dated 28-10-1997 in IA No.765 of 1997 in OS No.669 of 1993 on the file of the learned II Additional District Munsif, Warangal, the present revision under Section 115 of the Code of Civil Procedure, 1908 (for short 'CPC') is filed.
2. The brief facts are as follows :
One Jetling Rajeswar Rao was the owner of the house bearing No.13-7-121, Matwada, Warangal. After his death, disputes arose between his nephew one J. Rajeswar and his alleged adopted daughter Smt. Gayatri Bai. The latter, petitioner herein filed a suit for injunction being OS No.669 of 1993 on the file of the Court of the II Additional District Munsif, Warangal. She also filed an application under Order 39, Rules 1 and 2 CPC being IA No. 1166 of 1993. Initially, an ex parte and interim injunction was granted and later the same was made absolute. Aggrieved by the same, the defendant carried the matter in appeal being CMA No.78 of 1994 and the same was dismissed on 16-7-1996. By virtue of the injunction, the defendant did not interfere with the possession of the plaintiff.
3. On 1-10-1997, the defendant filed IA No.765 of 1997 purporting it to be under Order 39, Rule 7 CPC. In this application, he prayed the lower Court for a direction to preserve the property allegedly belonging to him by removing them from the first and ground floor rooms of the suit schedule property. In the accompanying affidavit it is alleged that though the matter is settled by mediators, the plaintiff is continuing the suit, that part of the suit house is in his exclusive possession and his household articles, cooking implements etc., are in the house. He also alleged that the Municipal Corporation of Warangal and Kakatiya Urban Development Authority marked out a portion of the building for demolition in the drive for widening the roads and if the articles are not removed and kept in safe custody, they would be damaged. The application was opposed by the petitioner herein inter alia contending that taking advantage of the absence of the plaintiff, the defendant intruded into the plaint schedule property. She filed IA No.462 of 1994 seeking mandatory injunction to remove the locks put up by the defendant in April, 1994 and that after filing IA No.463 of 1994, the defendant himself removed the locks and therefore the said IA was not pursued further. She also alleged that the Municipal Corporation of Warangal or Kakatiya Urban Development Authority never gave any notice and in fact the defendant himself gave a consent letter though he is not concerned with the suit schedule house. The applicability of Order 39, Rule 7 CPC to the facts of the case was also disputed.
4. By the impugned order, the learned trial Judge allowed the application and appointed an Advocate-Commissioner with a direction to open the rooms of the first and second floors, prepare a list of articles present in those rooms and handover the articles to the defendant which he claims and prepare a list of articles the hand over of which is objected by the plaintiff.
5. Sri Bankatlal Mandhani, learned Counsel for the petitioner submits that Order 39, Rule 7 has no application to the facts of the case. It is further submitted that the order of injunction in IA No.1160 of 1993 has become final when ultimately the Appellate Court by order dated 16-7-1996 dismissed the CMA. The defendant never took a plea as is now raised in IA No.765 of 1997 either in the written statement or in the counter or in the grounds of appeal in the earlier interlocutory proceedings for injunction. As an afterthought, by creating a letter of consent, he approached the Court and the Court below has committed error in giving a blanket order to the Advocate-Commissioner to prepare a list of articles and handover those articles to the defendant, which allegedly belong to him. The order of the learned trial Judge is wholly unsustainable and occasions in failure of justice.
6. Sri Srinivasa Murthy, learned Counsel for the defendant/respondent submits that the suit claim itself is false and that insofar as the direction to handover the articles to the defendant is concerned, Order 39, Rule 7 is not applicable but insofar as directing the Advocate-Commissioner to prepare a list of articles belonging to the defendant and keeping them in safe custody, the order of the trial Court is justified.
Order 39, Rule 7 CPC reads as under:
Detention, preservation, inspection etc., of subject-matter of suit :--(I) The Court may, on the application of any party to a suit, and on such terms as it thinks fit:-
(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;
(b) for all or any of such purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and
(c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis to persons authorized to enter under this rule."
7. Order 39, Rule 7 CPC empowers the Court to make an order for detention, preservation and inspection of any property which is the subject-matter of the suit or as to which any question may arise in the suit. The submission that the power under Rule 7 can be exercised only in respect of the subject-matter is therefore not well founded.
The power is not only with regard to subject-matter of the suit but also with reference to any question that may arise in the suit. It is within the discretion of the Court to exercise power under relevant rule even with regard to a question that may arise subsequently. However, while exercising the power for passing an order of detention, preservation and inspection of the subject-matter of property no difficulty would arise. However, in relation to the other aspect as to the questions that may arise in the situation, the trial Court should be guided by the pleadings of the parties. In a suit for injunction, though the question of possession as on the date of filing of the suit is most relevant, there may be other ancillary and incidental questions as to the conduct of the parties before the Court. As an alternative plea, a defendant is always entitled to say that he has been forcibly evicted prior to filing of the suit and during such operation, some of the his belongings remained in the suit schedule property and in such case it is always a question in relation to the main dispute between the parties.
8. With the assistance of both the learned Counsel, I have gone through the written statement and counter-affidavit filed in the suit and in IA No.1166 of 1993. The defendant, except disputing the relationship of Gayatribai with later Rajeswar Rao, has not denied her allegation as to possession and did not even whisper about the presence of his belongings in the first floor as well as in the second floor rooms of the suit schedule property. Be that as it may, in the interlocutory proceedings for injunction, the prima facie finding in favour of Gayatribai has been recorded as to her possession. The concept of possession in law should take in its spectrum all rights, liabilities, immunities and claims vis-a-vis the property which is said to be in possession. There is nothing wrong to presume that when a person is stated to be in possession of a residential house, he shall be deemed to be in possession of all the movables in relation to the house as well as the immovable attachments in the house. When the Court recorded a prima facie finding that Gayatribai is in possession, she was also in law entitled to take advantage of that presumption. Unless the defendant properly pleads and proves at the earliest stage regarding any such movables or immovables attached to the immovable property, no defendant can be heard of saying that his belongings were lying in the disputed property. From this point of view, the impugned order goes contrary to the order in IA No.1166 of 1993 which has been admittedly affirmed in CMA No.78 of 1994. By ignoring the effect of this order, the trial Court committed an error in exercising its jurisdiction which occasioned failure of justice and the same cannot be sustained.
9. For the aforesaid reasons, the civil revision petition is allowed with costs quantified at Rs.500/- and the trial Court shall decide the suit expeditiously without being influenced by any of the observations made hereinabove.