Andhra HC (Pre-Telangana)
Hiranand And Anr. vs T.N. Khambati And Ors. on 20 December, 2005
Equivalent citations: AIR2006AP103, 2006(1)ALT613, AIR 2006 ANDHRA PRADESH 103, 2006 A I H C (NOC) 70 (AP), (2006) 3 CIVILCOURTC 434, (2006) 1 ANDH LT 613
ORDER C.V. Ramulu, J.
1. This revision is filed under Article 227 of the Constitution of India being aggrieved by a judgment and Decree dated 11-7-2002 in A.S. No. 67 of 1996 on the file of the learned I Additional Chief Judge, City Civil Court, Secunderabad, wherein the order dated 14-3-1995 made in I.A. No. 795 of 1994 in I.A. No. 1089 of 1991 in O.S. No. 596 of 1991 on the file of the learned 1 Junior Civil Judge, City Civil Court, Secunderabad dismissing the petition filed under Section 144 read with Section 151 of the Civil Procedure Code for removal of constructions made by the appellants herein in premises No. 1-8-215/24, Prenderghast Road, Secunderabad under the guise of status quo orders of the Court in I.A. No. 1089 of 1991 and for restoration of the status quo as on the date of filing of I.A. No. 1089 of 1991, was reversed and I.A. No. 795 of 1994 was ordered as prayed for.
2. Originally, the said suit was filed by the petitioners herein (plaintiffs) against respondents 4 and 5 herein (defendants 1 and 2), but respondents 1 to 3 herein were added as defendants 3 to 5 by an order dated 5-11-1991 in I.A. No. 1594 of 1991 in O.S. No. 596 of 1991. The suit was laid by the petitioners herein seeking permanent injunction restraining the defendants from interfering with their possession in any manner including demolition with the constructions being carried on in the open space on the northern side of premises No. 1-8-215/24, Prenderghast Road, Secunderabad. They also obtained ad interim injunction order. Thereafter, the suit was dismissed for default on 11-11-1993. It appears, no steps have been taken for restoration of the said suit. Thereafter, the present I.A. No. 795 of 1994 was Filed by respondents 1 to 3 herein for removal of constructions made by the petitioners herein in premises No. 1-8-215/ 24, Prenderghast Road, Secunderabad under the guise of status quo orders and subsequent temporary injunction orders passed in I.A. No. 1089 of 1991, and thereby to restore status quo ante.
3. It was the case of respondents 1 to 3 herein i.e. petitioners in I.A. No. 795 of 1994 that they are the owners of the property in premises No. 142/C, Prenderghast Road, Secunderabad. On the south-eastern portion of their property, there is a road connecting the main road (Prenderghast Road). The previous owner obtained a lay out sanction in the year 1960 for converting the land into plots. To the south of their compound wall, there was a 40' wide road, which was provided under the lay out. The mother of petitioner No. 1 herein purchased plot Nos. 18 and 19 in the year 1965. Thereafter, she sold plot No. 19 to somebody else and retained plot No. 18 admeasuring 266.66 sq. yards. Plot No. 18 is thus adjoining 40' wide road. While obtaining a lay out for another portion of the property in the year 1979, the land owners proposed to convert the land reserved for 40' wide road for a length of 80' as plot No. 6 (lay out plan of 1970} and plot Nos. 18 and 19 (lay out plan of 1960) as plots 5, 4, 3 etc. While sanctioning the said lay out, plot Nos. 5 and 6 were shown as park. Later on, at the instance of the landlords, plot No. 5 was dereserved and plot No. 6 alone was retained for park, which is bounded by, East : Road, West : Plot No. 5, North : Premises No. 142/C (belonging to respondents 1 to 3 herein) and South : Plot No. 18, Petitioner No. 1 herein constructed the house in plot No. 18 up to boundary of road and/or plot No. 6 of 1970 lay out. Later on, the 1st petitioner herein made attempts to encroach the land covered by the park, portion after portion. In the suit filed by the petitioners against respondents 1 to 3 herein in O.S. No. 1727 of 1985, the 1st petitioner claimed that he had purchased 90 square yards of land to the north of their building from the original owner. But, the said suit was dismissed. Petitioner No. 1 herein also filed a suit in O.S. No. 117 of 1987, which was also dismissed. Thereafter, the present suit in O.S. No. 596 of 1991 was filed and since no counter-affidavit was filed by respondents 4 and 5 herein, the petitioners herein could get a temporary injunction order. Under the guise of the said order, the petitioners herein completed the structures by encroaching upon the park area. Thereafter, they (respondents 1 to 3) herein were impleaded. But, the suit was dismissed for default on 11-11-1993. By making false allegations, the injunction was obtained and after the structures were raised, the plaintiffs got the suit dismissed for default. Since the suit itself has been finally dismissed, the constructions made during the period of operation of the interim order of status quo or temporary injunction order, have got to be removed and petitioners herein are not entitled to the benefit of such encroachments and/or constructions made under the shelter of interim orders when they did not succeed in the suit filed by them. Hence, the petition.
4. Petitioners herein filed a detailed counter-affidavit in I.A. No. 795 of 1994. It is their contention that the main suit was filed for injunction against the Municipal Corporation of Hyderabad. They have not filed any suit against the respondents 1 to 3 herein, who were impleaded themselves in the suit, with mala fide intention. Since no relief was claimed against respondents 1 to 3 herein, they have no locus standi to file the present I.A. No. 795 of 1994. Even at present, for the old premises No. 142/6, there is no sanction for constructions. Since it was sold to several persons, respondents 1 to 3 have no locus standi to file the present petition, as they have no subsisting right. There is no park or road of 40' as alleged by respondents 1 to 3. If the road or the park was encroached by them, a Commissioner may be appointed to measure the total land with construction. When the area of plot No. 6, which was overlapping plot No. 18 was found in excess, the mother of the petitioners herein approached the previous owners and paid consideration for excess land, but, unfortunately, the document could not be traced. The mother of the petitioners died in the year 1982 and therefrom, the respondents 1 to 3 are harassing them. Respondents 1 to 3 are instigating Municipal Corporation of Hyderabad to cause loss to them. The ground floor was completed and pillars were erected to roof level at the time of filing of the suit and since the Municipal Corporation of Hyderabad was trying to interfere with the constructions, they filed the suit and as there was no communication from the Corporation, they proceeded with the construction work. In I.A. No. 1089 of 1991, it was clearly mentioned that the constructions were already made. As per the Order in I.A. No. 1276 of 1991, the roof was laid and thereafter, the construction was stopped. Due to some misunderstandings between them, they did not take interest in the legal proceedings and the suit was dismissed for default. Therefore, it cannot be said that they have taken advantage of the interim orders and completed the construction. Thus, the question of passing any Order under Section 144 read with Section 151 of CPC does not arise.
5. No oral or documentary evidence was let in by both the parties. Basing on the pleadings of both the parties and after hearing their counsel, the trial Court held that since the rights of both the parties are under question, the present petition cannot be maintained and no order can be passed except making an observation that the plaintiffs in O.S. No. 596 of 1991 had taken advantage of the process of the Court and made illegal constructions by virtue of ad interim injunction order. However, it was made clear that the Municipal Corporation of Hyderabad can take appropriate action against the petitioners herein as this offence is not compoundable. If respondents 1 to 3 want to proceed against the petitioners, they can file fresh suit or appropriate petitions in the other suit. Assailing the said order, respondents 1 to 3 herein filed an appeal in A.S. No. 67 of 1995. The appellate Court, however, after a detailed consideration of the matter and placing reliance on the judgment reported in State of Andhra Pradesh v. Manikchand Jeevraj and Co. held that the plaintiffs abused the Court process and after obtaining interim injunction orders and after making illegal constructions, did not invite a decision in the main suit on merits and it was dismissed for default. So, the trial Court should have restored possession as on the date of obtaining the interim injunction orders. Hence, the ultimate finding of the trial Court is liable to be set aside and accordingly set aside and the petition was allowed as prayed for and held that defendants 3 to 5 could execute the order for themselves or through the Municipal Corporation of Hyderabad, which is also a party to the appeal for restoration and restitution of the position as on the date of obtaining interim injunction orders in I.A. No. 1089 of 1991. Challenging the same, the present Civil Revision Petition is filed.
6. Sri V. Venkata Ramana, the learned Counsel for the petitioners, strenuously contended that the suit was dismissed for default and subsequently, respondents 1 to 3 -- impleaded defendants 3 to 5 -- had filed L.A. No. 795 of 1994 seeking restitution and restoration of the building as existed on the date of interim injunction. The said petition was rightly dismissed by the trial Court, Erroneously an appeal was entertained against the order in the said I.A. and the appeal was allowed giving liberty to the private parties -- respondents 1 to 3 herein -- to demolish the construction made by the petitioners on the ground that it was made after passing of the interim injunction order. Such an adjudication by the appellate Court enabling respondents 1 to 3 herein to get demolition done without any details of the portion of the building, which is to be demolished, is unknown to law. Even otherwise, the suit was not decided on merits and there is no adjudication by any Court of law as to whether the disputed property is a part of the park or the property of the petitioner-plaintiffs. In fact, the petitioners have been claiming that they are the owners of the property under a registered sale deed executed in favour of their mother. Even if there are some changes in the layout of 1960 i.e. in the year 1972, unless and until there is adjudication by a competent Court of law that the disputed property is part and parcel of the park and vests in the local authority, a petition of this nature is not maintainable.
7. Learned Counsel for respondents 1 to 3 strenuously contended that the petitioner-plaintiffs have attempted to abuse the process of law. Respondents 1 to 3 are neighbours of the petitioners and they have every right to implead themselves in the suit and also to file the present petition under Section 144 read with Section 151 of the Civil Procedure Code. Obtaining of interim injunction in I.A. No. 1089 of 1991 in O.S. No. 596 of 1991 had thereafter allowing the suit to be dismissed for default and not taking any steps for restoration itself would show that the very purpose of obtaining injunction is to woodwink the Court and to obtain some order and complete the constructions. Therefore, rightly, the appellate Court held that it is nothing but abuse of process of law; therefore, the restitution petition is liable to be dismissed. No ground is made out to interfere with the order passed by the appellate Court. He also stated that the Civil Revision Petition itself is not maintainable, since the petitioners could have filed a Second Appeal before this Court and not a revision under Article 227 of the Constitution of India.
8. I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the judgments of the Court below and other material made available on record.
9. At the outset, I am of the opinion that the appellate Court has committed an error in reversing the order dated 14-3-1995 passed by the trial Court in I.A. No. 795 of 1994 in I.A. No. 1089 of 1991 in O.S. No. 596 of 1991 There is no necessity of going into all the details. Admittedly, this is a case where the questions -- whether the petitioner-plaintiffs are the owners of the property or the respondents 1 to 3 are the owners or any part of the park was occupied by the petitioners and who is the real owner of the property and whether the park vests in the Municipal Corporation of Hyderabad --are not decided by any competent Court of law. May be, in a given case, if it appears that the petitioner-plaintiffs having obtained an ad interim injunction order made constructions in the property and after completion of the constructions, they have allowed the suit to be dismissed for default, and the Court comes to the conclusion that this is nothing but abuse of process of law, it may order for restitution/restoration as required under Section 144 read with Section 151 of the Civil Procedure Code. But, such attempts can be made only when there is a categorical finding as to the ownership of the property given by a competent Court of law and not otherwise.
10. In the instant case, the trial Court rightly came to the conclusion that since the rights of both the parties are under question, the present petition cannot be maintained. There cannot be any dispute as to the fact that no Court of law as on the date of filing of the suit had an opportunity to decide the rights of the parties as to the suit schedule property, whether it is between the petitioner-plaintiffs and Municipal Corporation of Hyderabad or between the petitioners, Municipal Corporation of Hyderabad and respondents 1 to 3 herein. It would have been otherwise, had there been a decision made by the competent Court as to the ownership of the land -- whether vested in the local authority as a park or whether the defendants have any interest in the said property. In the absence of such decision by a competent Court of law, a petition of this nature, which will have serious civil consequences, could not have been allowed by the appellate Court. The trial Court has rightly, therefore, left it open to the local authority to take appropriate action against the plaintiffs as required under the law or to file a fresh suit or other appropriate proceedings; obviously for the purpose of ascertaining as to the right, title and ownership of the disputed site.
11. Learned Counsel for the respondents 1 to 3 relied upon the decision in Kanoria Chemicals and Industries Ltd. etc. v. U.P. State Electricity Board 1997 Supreme Appeals Reporter (SC) 528 wherein it was held :
10... It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court. Any other view would result in the act or order of the Court prejudicing a party for no fault of its and would also mean rewarding a writ petitioner in spite of his failure....
He also relied upon the judgment in South Eastern Coal Fields Ltd. v. State of M. P. wherein it was held as under :
27. Section 144 of the CPC is not the fountain source of restitution; it is rather a statutory recognition of a pre-existing rule of justice, equity and fair play. That is why it is often held that even away from Section 144, the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties.... This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it, A.A. Nadar v. S.P. Rathinasami (1971) 1 MLJ 220. In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court; the 'act of the Court' embraces within its sweep all such acts as to which the Court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the Court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the Court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it Was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encourages to approach the Courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the Court withholding the release of money had remained in operation.
The above decisions relied upon by he learned Counsel for respondents 1 to 3 have no relevance to the facts of this case.
12. Yet another objection is taken by the learned Counsel for the respondents stating that the very revision is not maintainable under Article 227 of the Constitution of India, since a regular Second Appeal is available against the judgment and Decree dated 11-7-2002 made in A.S. No. 67 of 1995 and instead of filing an appeal, the petitioners have filed the present revision.
13. Per contra, the learned Counsel for the petitioners stated that the revision under Article 227 of the Constitution of India is filed not to avoid any delay caused in approaching this Court, but since the very appeal filed by the respondents before the lower appellate Court was not maintainable. Further, since only a substantial question of law alone can be taken up in the Second Appeal, the present revision under Article 227 of the Constitution is maintainable. In support of his contention, the learned Counsel relied upon a judgment of this Court in India Fruits Ltd. v. Mantrad (P) Ltd. 1993 (2) Andh LT 726 wherein it was held that where there is an alternative remedy available, generally the party should not be allowed to resort to or take shelter under the provisions of Article 227 of the Constitution of India, but where under exceptional circumstances where it is found that the entertaining of cases by the subordinate Courts or the tribunal, as the case may be, ex facie found to be not correct, then under Article 227 the High Court is competent to entertain the application under Article 227 and prevent the abuse of process of law or prevent further continuance of the proceedings, which were found to be prima facie contrary to the directions already given by the High Court. In rare and exceptional circumstances alone Article 227 can be resorted to.
14. The lower appellate Court observed that even assuming that the provision of Section 144 of the Civil Procedure Code is not strictly applicable, the provision of Section 151 of the Civil Procedure Code is applicable, thus, held that the restitution can be ordered independently under Section 151 of the Civil Procedure Code. Since there was no decree or order passed by a competent Court of law, which is either varied or reversed by the appellate Court within the meaning of Section 114 of the Civil Procedure Code, the very petition in I.A. No. 795 of 1994 itself was not maintainable and the appeal in A.S. No. 67 of 1996 against the Order passed on the petition, further was not maintainable in the teeth of the observations as made by the appellate Court itself. The appellate Court having placed reliance upon the judgment in M/s. Manikchand Jeevaraj's case (AIR 1973 AP 27) (supra] held that though Section 144 of the Civil Procedure Code is attracted only where the order or decree of any Civil Court is reversed or varied, yet in cases where the provisions of Section 144 of the Civil Procedure Code are not strictly satisfied, the restitution can be ordered under Section 151 of the Civil Procedure Code. Then the question arises is as to whether the appellate Court was competent to pass an order under Section 151 of the Civil Procedure Code for restitution, ignoring Section 144 of the Civil Procedure Code. In other words, if the order passed in I.A. No. 795 of 1994 was treated to be an order made under Section 151 of the Civil Procedure Code, whether an appeal against such an order is maintainable, is another question which crops up, out of the said discussion. In my considered opinion, the answer would be in negative. Thus, as contended by the learned Counsel for the petitioners the very appeal itself was not maintainable under Section 96 read with Section 2(2) of the Civil Procedure Code before the lower appellate Court. Therefore, since the question as to whether an appeal was available against such an order and decree made by the trial Court in I.A. No. 795 of 1994 in I.A. No. 1089 of 1991 in O.S. No. 596 of 1991 is also one of the questions being fallen for consideration, the Civil Revision Petition under Article 227 of the Constitution of India is maintainable. In fact, once the appellate Court construed that it is only an Order under Section 151 and not under Section 144 of the Civil Procedure Code, it could not have adjudicated the matter and directed the parties to approach the proper forum by way of filing a revision under Section 115 of the Civil Procedure Code or under Article 227 of the Constitution of India.
15. Even otherwise, I am of the opinion that since there was no delay in filing the Civil Revision Petition against the judgment and decree in A.S. No. 67 of 1995, it cannot be said that the petitioner wantonly avoided to file an appeal, which is a substantive right and if there is any delay, the right of the respondent was denied in contesting the same. In the facts and circumstances of the case, I am of the view that the Civil Revision Petition is maintainable.
16. For all the above reasons, the Civil Revision Petition is allowed and the judgment and decree dated 11-7-2002 in A.S. No. 67 of 1996 on the file of the learned I Additional Chief Judge, City Civil Court, Secunderabad, are set aside and the order dated 14-3-1995 made in I.A. No. 795 of 1994 in I.A. No. 1089 of 1991 in O.S. No. 596 of 1991 on the file of the learned I Junior Civil Judge, City Civil Court, Secunderabad is confirmed. There shall be no order as to costs.