Madras High Court
J.Murali vs M.Siva on 15 July, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.07.2014 CORAM: THE HONOURABLE MS.JUSTICE R.MALA CRP (PD) No.432 of 2013 and M.P.No.1 of 2013 J.Murali .. Petitioner Vs. M.Siva .. Respondent Prayer : Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 06.10.2012 made in I.A.No.442/2012 in O.S.No.288 of 2009 on the file of the learned Additional District Munsif, Alandur. For Petitioner : Mr.R.Subramanian For Respondent : Mr.P.Suresh ORDER
The Revision Petitioner herein has come forward with this Civil Revision Petition, challenging the order dated 06.10.2012 made in I.A.No.442/2012 in O.S.No.288 of 2009 on the file of the learned Additional District Munsif, Alandur.
2. The learned counsel appearing for the revision petitioner submitted that the revision petitioner herein is the owner of the property at Door No.315/13, Yadaval Street, Adambakkam, Chennai. It is an admitted fact that Bhavani Shankar was a tenant under the Revision Petitioner herein in the front portion of the ground and first floors, whereas, the respondent herein was also a tenant under the revision petitioner herein in the rear portion of the ground floor. He further submitted that the plaintiff/revision peititoner herein filed R.C.O.P.No.5 of 2003 for evicting Bhavani Shankar, which was allowed and he took possession on 26.04.2007. The revision petitioner herein also filed an eviction proceedings against the respondent herein in R.C.O.P.No.56 of 2001 for willful default in payment of rent and he also filed an application under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, wherein, eviction order was passed on 24.04.2009, against which, the respondent herein filed R.C.A.Nos.40 and 41 of 2009, which were dismissed on 20.10.2009. Aggrieved against the same, the respondent herein filed revision petitions before this Court in C.R.P.Nos.1181 and 1182 of 2011, which were also dismissed on 31.03.2011. Since the respondent herein attempted to interfere with the possession of the subject matter of the property in R.C.O.P.No.5 of 2003, the revision petitioner herein filed a suit in O.S.No.288 of 2009 for injunction, wherein, interim injunction was granted and subsequently, it was made absolute on 12.03.2010. Since the respondent willfully disobeyed the order of the Court and trespassed into the subject matter of the property in R.C.O.P.No.5 of 2003, i.e. the subject matter of the suit, the revision petitioner filed a contempt application under Order 39 Rule 2A of C.P.C. for the following relief:
To order necessary directions including temporary mandatory injunction against the respondent his legal heirs, men and agents, by directing the Court Nazir with police aid of the Inspector of Police, Adhambakkam Police Station to restore the possession of the suit to the petitioner/resivision petitioner herein as the injury being grave and serious In the said appliction, even though notice was issued to the defendant/respondent herein, he did not appear before the trial court. The trial Court, after examining P.W.1 and Exs.P1 to P3, has held that the defendant/respondent herein willfully disobeyed the order of the Court, hence, he was directed to be detained in civil Prison for a term not exceeding three months. But, the application was disallowed with regard to restoration of the possession, against which, the present Civil Revision Petition has been filed.
4. The learned counsel appearing for the revision petitioner took me to the decision of this Court reported in AIR 1991 Madras 323 (Vidya Charan Shukla vs. Tamil Nadu Olympic Association) and 1993 (1) MLJ 274 (Sri-la-Sri Sivasubramanyananda Swami vs. Sri-la-Sri Arunachalasamy Chidambaram and another) and submitted that if the respondent did injustice, the Court has every right to undo the same for administrtion of justice. So, the trial Court ought to have restored the possession with the aid of Police. Hence, he prayed for allowing this revision petition.
5. At this juncture, the learned counsel appearing for the respondent relied upon the decision of this Court reported in 2005 (3) CTC 683 (The Commissioner, Theni Allinagaram Municipality, Theni and another vs. Mrs.Rajeswari) and submitted that law respects possession even if there is no title to support it, it will not permit any person in actual possession without having recourse to a Court and no person can be allowed to become a Judge in his own cause. Hence, the revision petitioner herein ought to have filed a suit for recovery of possession. Therefore, he prayed for dismissal of this revision petition.
6. I have considered the rival submissions made by both sides.
7. Admittedly, the revision petitioner herein filed the suit in O.S.No.288 of 2009 in respect of the subject matter of the property in R.C.O.P.No.5 of 2003. Earlier, the revision Petitioner herein filed R.C.O.P.No.5 of 2003 against Bhavani Shankar, who was the tenant under him, wherein, eviction order was passed and he took possession on 26.04.2007. It is also an admitted fact that the respondent herein was also the tenant under the revision petitioner herein and since the respondent herein committed willful default in payment of rent, the revision petitioner filed R.C.O.P.No.56 of 2001 and also filed the application in Section 11(4) of the Act, wherein, eviction order was passed on 24.04.2009, against which the respondent herein filed R.C.A.Nos.40 and 41 of 2009, which were dismissed on 20.10.2009. Aggrieved against the same, the respondent herein filed revision petitions before this Court in C.R.P.Nos.1181 and 1182 of 2011, which were also dismissed on 31.03.2011 and took possession on 18.11.2011.
8. Admittedly, at the time of filing of the suit in O.S.No.288 of 2009, the application under Order 39 Rule 1 and 2 of C.P.C. was filed, wherein, interim injunction was granted and subsequently, it was made absolute on 12.03.2010. According to the revision petitioner, since the respondent herein trespassed into the subject matter of the property in R.C.O.P.No.5 of 2003, viz., suit property, he was forced to file the contempt application for willful disobidence of the Court order by the respondent herein. The trial Court, after examining P.W.1 and Exs.P1 to P3, came to conclusion that the defendant/respondent herein willfully disobeyed the order of the Court, hence, he was directed to be detained in Civil prison for a term not exceeding three months. But, the second prayer of the application with regard to restoration of the possession of the suit property to the revision petitioner herein by evicting the respondent herein, was disallowed by the trial Court.
9. At this juncture, it is appropriate to considered the decisions relied upon by the learned counsel appearing for both sides.
10. the decision of a Division Bench of this Court, reported in 2005 (3) CTC 683 (The Commissioner, Theni Allinagaram Municipality, Theni and another vs. Mrs.Rajeswari), is relied upon by the learned counsel appearing for the respondent, where, due to non-payment of rent arrears, the Municipality evicted the tenants without due process of law. It is appropriate to incorporate para-10 of the Judgment and the same is extracted hereunder:
10. The Supreme Court in the above decision i.e. Yeshwant Sing v. Jagdish Singh (supra) also quoted with approval the following observation of the Allahabad High Court in Yar Mohammed vs. Lakshmi Das, AIR 1959 All 1 (FB):
Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause. As observed by Edge, C.J., in Wali Ahmad Khan v. Ayodhya Kundu, 1891 ILR 13 All 537 at p.556:
The object of the section was to drive the person who wanted to eject a person into the proper Court and to prevent them from goign with a high hand and ejecting such persons.
In the present case, even though the injunction was granted restraining the respondent, his men and agent from interfering with the peaceful possession and enjoyment of the petitioner's property, the respondent herein willfully disobeyed the order of the Court by trespassing into the property, so, the plaintiff/petitioner herein is not entitled to repossess the same. Hence, I am of the view that the above citation is not applicable to the facts of the present case.
11. Now, this Court has to decide as to whether the revision petitioner is entitled to reposess the property.
12. In the decision of the Full Bench of this Court reported in AIR 1991 Madras 323 (Vidya Charan Shukla vs. Tamil Nadu Olympic Association), it was clearly stated that if an injustice has been done to the parties, the Court is empowered to undo the injustice for administration of justice. It is appropriate to incorporate para-46 of the Judgment and the same is extracted hereunder:
46. .... We 'have already noticed that there are provisions in Order XXXIX Rule 2A of the Code of Civil Procedure as a remedy for the violation of temporary or interim injunction. Besides what is contemplated under Order XXXIX Rule 2A of the Code of Civil Procedure, Courts have found another source of power in Section 151 of the Code of Civil Procedure and if that is also ignored for a moment, this Court's power as a Court of Record and a Court of Special jurisdiction is preserved under Articles 215 and 225 of the Constitution of India. There have been cases before several Courts in which when faced with situations that some order or direction was violated and the violation resulted in grave and serious injury, the Courts took the view that the Code of Civil Procdure is not exhaustive. There are cases which say that if remedy to do justice is not provided for in the Code or any other Act, the High Court must not fold its hands and allow injustice to be done.
In the present case, the injunction was made absolute after hearing both sides. It is an admitted fact that the respondent herein willfully disobeyed the Court's order and trespassed into the property. In such circumstances, to meet out the ends of justice, it is the duty of the Court to restore the possession.
13. In the decision of the Division Bench of this Court reported in 1993 (1) MLJ 274 (Sri-la-Sri Sivasubramanyananda Swami vs. Sri-la-Sri Arunachalasamy Chidambaram and another), it was held that Section 151 of C.P.C. confers power to prevent abuse of process of Court. It is appropriate to incorporate paras 21 and 22 of the Judgment and the same are extracted hereunder:
21. The position of law which emerges from the principles laid down by the decisions referred to above is this; Section 151 of the Civil Procedure Code confers power to make such orders as may be necessary for the ends of justice or to prevent abuse of process of court. Every court is constituted for the purpose of doing justice according to law and must be deemed to possess, as a necessary corrolary, and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo the wrong in the course of the administration of justice. As pointed out by the Apex Court of the land in N.S. Mills v. Union of India , the inherent power of the court has its roots, in necessity and its breath is coextensive with the necessity. Section 151 does not confer any powers, but only indicates that there is a power to make such orders as may be necessary for the ends of justice and to prevent the abuse of process of court. As observed by the Supreme Court in Manoharlal v. Seth Hiralal (1962)1 S.C.R. (Supp.) 450, the inherent power has not been conferred on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. As pointed out by the Supreme Court in Padam Sen v. The State of Bihar , the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore, it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code, when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. The language of Section 151 of the Code is wide enough to clothe the civil courts with inherent powers to do the right and undo the wrong in the course of administration of justice.
22. We must bear in mind that when an order of temporary injunction is granted by the court under Order 39, Rule 1 of the Code or when a decree for permanent injunction is passed by the civil court, it involves the following three stages:
The first stage is the issue of an order of temporary injunction or passing of a decree for permanent injunction.When a petition under Order 39, Rule 1 of the Code is filed by a party, the court being satisfied that the conditions prescribed under Order 39, Rule 1 of the Code are satisfied, may issue an order of temporary injunction in favour of the party, who has applied for the same. Similarly, the court after full trial of a suit and upon the merits of the case, may pass a decree for permanent injunction in favour of a party. There is specific provision in the Code namely Order 39, Rule 1 dealing with the grant of the order of temporary injunction. Section 38 of the Specific Relief Act deals with the circumstances under which a decree for perpetual injunction can be passed by the courts.
The second stage is the implementation of the order of temporary injunction or decree granting perpetual injunction. There is no specific provision under the Code dealing with the implementation of the order of temporary injunction or a decree for perpetual injunction.
The third stage is the punishment for disobedience of the order of injunction. Order 39, Rule 2-A of the Code deals with the consequences of disobedience or breach of injunction or other orders made under Order 39, Rule 1 of the Code. Order 21, Rule 32 of the Code says that where a party against whom a decree for injunction has been passed, has had an opportunity of obeying the decree but has wilfully failed to obey it, the decree for injunction may be enforced by his detention in civil prison or by the attachment of his property or by both. Thus, the Code contains specific provision with regard to the grant of an order of temporary injunction and for punishing the party who disobeys the order of temporary injunction and the decree for perpetual injunction. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When there is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, we do not see why the provisions of Section 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under Order 39, Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Section 151 and pray for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in exercise of the inherent powers under Section 151, can direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-co-operation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of this Court in Century Flour Mills Ltd. v. Suppiah (1975)2 M.L.J. 54, when there is a violation of an order of injunction granted by the civil court, or when something has been, done in disobedience of such an order of injunction, it is the duty of the court as a matter of judicial Policy to undo the wrong done in disobedience of the court's order and the power to enforce the order of injunction by ordering police aid is available under Section 151 of the Code.
14. In the present case, even though the trial Court had passed an order of injunction and subsequently, it was made absolute, the respondent herein trespassed into the property of the revision petitioner. Hence, the revision petitioner herein filed the contempt application, wherein, notice was sent to the respondent herein. But, he did not appear before the Court to agitate the same. In the application, the trial Court has held that the respondent herein willfully disobeyed the order of the Court and he was directed to be detained in Civil prison for a term not exceeding three months, whereas, the trial Court has disallowed the application with regard to restoration of the possession.
15. Applying the decisions of this Court (cited supra), I am of the view that it is a fit case for giving direction to repossess the property with the help of the Police. The respondent is directed to hand over the possession within one month from the date of receipt of a copy of this order, otherwise, the revision petitioner is entitled to execute the order with the help of the Police, within a month thereafter.
16. Accordingly, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
15.07.2014 ogy To The Additional District Munsif, Alandur.
R.MALA,J.
ogy CRP (PD) No.432 of 2013 15.07.2014