Andhra Pradesh High Court - Amravati
M Ramadevi vs P Govinda Satyanarayan on 10 October, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.551 of 2019
ORDER:
The plaintiff in the suit filed this civil revision petition under Article 227 of the Constitution of India questioning the correctness of order dated 03.12.2018 of learned II Additional Senior Civil Judge, Visakhapatnam in I.A.No.397 of 2017 in I.A.No.1287 of 2016 in O.S.No.1626 of 2016.
2. Respondent Nos.1 to 4 herein are the defendants in the trial Court. The whole controversy is about plaintiff seeking permission from the Court to permit her to construct a compound wall as well as gates for the purpose of security of the building and the tenants living therein during the pendency of the suit and thereby ordering status quo ante. The learned trial Court refused to grant the prayer and dismissed the petition and that led to filing of this revision.
3. The plaintiff filed O.S.No.1626 of 2016 seeking permanent injunction restraining the defendants and their men or agents or others from interfering with peaceful possession and enjoyment of the suit schedule property and for costs and such other reliefs. The property that was sought to be protected is a house described vividly in the schedule that is appended to the 2 Dr. VRKS, J C.R.P.No.551 of 2019 plaint showing thus as RCC slabbed ground and first floor in an extent 335 square yards, which is plot No.11 bearing Door No.17-82 in Survey No.129/2 with electricity service connection numbers mentioned therein and this property is located at Pendurthy Village within Greater Visakhapatnam Municipal Corporation, and specific boundaries are given. Plaint averments include claim of title and possession of the plaintiff by virtue of a registered gift deed obtained from her brother and it further traces the title and possession since the year 1990. It is also stated that defendant No.1 in the suit is a Member of Legislative Assembly of Anakapalli and defendant No.2 is his wife and defendant Nos.3 and 4 are their children. It is stated that till 21.11.2016 the husband of the plaintiff was taking care of the property. But, on that day which was 21.11.2016 he suddenly died. Thereafter on 19.12.2016 the defendants started threatening to demolish the plaintiff's building on northern side and they digged the road etc. and the digging continued up to the compound wall of the plaintiff on the northern side. It is stated that the defendants have no right to touch the suit schedule property and if they believed that there was encroachment on part of the plaintiff they ought to have 3 Dr. VRKS, J C.R.P.No.551 of 2019 issued a notice and filed a suit for recovery of possession and pursue the remedy through Court of law but instead of doing it they came up with bulldozer and started demolition. At page No.4 of the plaint it is also mentioned that since the defendants dug the entire land on the northern side upto the compound wall, at any time the compound wall will collapse as it got weakened. It is with such allegations the plaint was signed and filed on 23.12.2016. It is undisputed that the plaintiff also filed an application for granting of interim injunction in I.A.No.1287 of 2016. In that application on 23.12.2016 itself the learned trial Court granted status quo orders. Some time thereafter, the plaintiff had come up with I.A.No.397 of 2017 invoking powers of the Court under Section 151 C.P.C. with a prayer that is extracted below:
"For the reasons stated in the accompanying affidavit the petitioner/plaintiff humbly prays that the Hon'ble Court may be pleased to permit the petitioner/plaintiff to construct the compound wall as well as gates for the security of the building and the tenants, to maintain the suit schedule property as it was, at the time of filing the suit, by ordering status quo ante, in the interest of justice otherwise the petitioner/plaintiff will be put to irreparable loss and hardship."4
Dr. VRKS, J C.R.P.No.551 of 2019
4. In the sworn affidavit of the plaintiff, who is a woman aged 60 years, it is mentioned that the status quo orders were served and in spite of that, the respondents therein, who are defendants in the suit, highhandedly demolished the compound wall of the suit schedule property and thereafter, reporting the same to police a complaint was lodged and F.I.R. was registered. Along with the application a Compact Disk (CD) containing photographs is attached wherein photographs 1 and 2 disclose the situation of the property prior to status quo orders and photographs 3 to 8 disclose the property subsequent to status quo orders. It is stated that the compound wall and two sides iron gates were demolished with proclainer. On the first hearing of interlocutory application for interim injunction a memo was also filed to this effect. That the petitioner and the tenants they are all in fear and not secured. With a view to give security to the property and the persons living therein she seeks for permission of construction of the wall and gates. This affidavit also contains the amount that would be required for this reconstruction and the amount of compensation or damages that she would be entitled to etc. With such averments, the above petition was filed with a prayer that is mentioned already. 5
Dr. VRKS, J C.R.P.No.551 of 2019
5. The respondents filed their counter denying all the petition stated averments. Para Nos.9 to 11 are important and therefore, they are extracted here:
"9. It is submitted that the petition itself shows that so called incident of demolition of compound wall was taken place on 19.12.2016 and orders of status quo were granted by this Honourable Court on 23.12.2016 and this itself shows that no such incident was took place after granting of status quo orders and as such the question of violating the said orders does not arise at all.
10. It is submitted that it is admitted fact that the petitioner herein encroached into the site of this respondent and constructed a compound wall and gate and with the help of revenue officials made a survey and found the said encroachment and the petitioner herself removed the compound wall and thereafter filed the present suit with all false and frivolous allegations as if she constructed in her own site. This itself shows the falsity of the claim of the petitioner.
11. It is submitted that the respondents never violated any of the lawful orders passed by this Honourable Court and they never committed any threat or demolition as contended by the petitioner and as such the petition has no legs to stand and liable to be dismissed."6
Dr. VRKS, J C.R.P.No.551 of 2019 Finally, it is stated that only with a view to throw mud on the reputation of the respondents/defendants and to extract money and to make them to accept the terms of bargain the said petition is filed and prayed for dismissal of the petition.
6. Learned trial Court enquired into this matter and considered the rival submissions and finally by the impugned order it recorded that it has not found any bona fides and merits with the petitioner and therefore dismissed the petition.
7. A reading of the impugned order discloses the reasons for dismissal. The trial Court referred to the pleadings of both sides in the suit and according to the defendants in the suit their property was encroached into and the compound wall was constructed by the plaintiff and this encroachment was in the land of the defendants contained in Survey No.140/6 and 140/9. After considering those rival contentions, the trial Court observed that in view of such rival contentions permission to reconstruct compound wall and gates cannot be granted until and unless it is ascertained whether the demolition in respect of wall forms part of the property of the plaintiff or of the defendants. Granting permission to reconstruct compound wall is to grant injunction indirectly and that is impermissible under 7 Dr. VRKS, J C.R.P.No.551 of 2019 law. That the plaintiff was not bona fide since she did not ask for appointment of an advocate commissioner to take down the measurements so as to substantiate contention that the demolished portion is within the property of the plaintiff. It is also observed that the plaintiff was not pursuing her interim injunction application in I.A.No.1287 of 2016. That granting permission may lead to altering the physical features of the disputed property and that may create confusion for the Court while deciding the suit. Finally, it was observed that the petitioner/plaintiff did not offer an undertaking that she would demolish the proposed structures in the event of final adjudication in the suit that the structures are in the property of the defendants and that is by way of encroachment. It was with those reasons the prayer was not granted.
8. In challenge to that order, the present revision is filed stating that the trial Court failed to see that because of the demolition of the compound wall the whole house is exposed. Unless the compound wall and gates are built up there is no safety for inmates of the house. Failing to grant the required relief would cause irreparable loss to the petitioner and in the light of the fact that the opponent is sitting MLA and a man with 8 Dr. VRKS, J C.R.P.No.551 of 2019 power, interest of the petitioner is required to be protected. Dismissing the petition on the ground of failure on part of the revision petitioner in offering an undertaking for demolition is incorrect since the Court was very much competent to call for such undertaking and passed a conditional order. Petitioner's failure to seek for appointment of an advocate commissioner cannot be a ground to refuse the prayer. The approach of the trial Court that to grant the prayer for rebuilding is dependent on the fact whether the wall and gates were located within the property of the plaintiff or within the property of the defendants since such fact would be decided only after trial in the suit but not earlier to it. For all these reasons, the revision petitioner earnestly prays for setting aside of the impugned order and prays for granting the relief contained in the petition filed before the trial Court.
9. As against this, the learned counsel for the respondents submits that simply because respondent No.1 was a sitting M.L.A., with a view to tarnish his reputation, the revision petitioner was seeking unnecessary prayers. The approach of the trial Court was correct and based on facts and supported the impugned order on all fronts.. Learned counsel for 9 Dr. VRKS, J C.R.P.No.551 of 2019 respondents also cited rulings about the powers of the High Court in a revision filed under Article 227 of the Constitution of India and finally submitted that in the context of the law contained therein no interference is called for.
10. Considering the rival submissions of the learned counsel on both sides and considering the material on record, the point that falls for consideration is:
"Whether the impugned order caused gross failure of justice requiring interference of this Court while exercising powers under Article 227 of the Constitution of India?
11. Point:
The following are the undisputed facts:
The plaintiff filed the suit for permanent injunction. Title and possession over the property was asserted. Existence of compound wall and gates to such plaint schedule property is not disputed. The trial in the suit takes place and evidence would be collected. Finally, a decision would be taken whether the plaintiff was entitled for a permanent injunction against the threats that were attributed to the defendants. It seems that trial in the suit is almost over and the suit is coming up for 10 Dr. VRKS, J C.R.P.No.551 of 2019 arguments before the trial Court. That is the present status. While the suit for permanent injunction was pending, the plaintiff also sought for an ad interim injunction in I.A.No.1287 of 2016. According to learned counsel on both sides that application was not decided by the trial Court. Thus, the suit and the interim application for injunction were pending before the trial Court. It is in that context of the facts, a further application in I.A.No.397 of 2017 was filed making certain allegations by the plaintiff against the defendants and finally the prayer is to permit the petitioner to reconstruct the demolished compound wall and the gates. The fact that there was a compound wall and gates remain undisputed. The plaint itself shows that the attributed illegal activities on part of the defendants occurred on 19.12.2016. As per the plaint by 19.12.2016 for the compound wall on the northern side the activity of digging was done by the defendants and that digging took place up to the compound wall and because of loss of earth the compound wall lost its support and at any time the compound wall may fall down. These are the averments contained in the plaint itself and the plaint was filed 4 days thereafter on 23.12.2016. The defendants in their counter in 11 Dr. VRKS, J C.R.P.No.551 of 2019 I.A.No.397 of 2017 filed before the trial Court at para No.10, which was extracted in the earlier paragraphs, stated that the plaintiff constructed compound wall by encroaching into house property and when a survey was made the same was detected and the plaintiff herself removed the compound wall and thereafter, filed the suit with false facts and frivolous allegations. In para No.11 they stated that they did not remove the compound wall. The fact that there was a compound wall earlier and now, there is no compound wall are admitted facts on both sides. Whether compound wall fell down on its own or whether the compound wall was pulled down by the defendants being one of the disputed questions of fact is to be decided in an enquiry concerning that aspect of the matter, in the light of the status quo orders passed in the interim injunction application.
Violation of the order was attributed to the defendants and an application to prosecute and punish them was also pending before the trial Court. Therefore, who pulled down the compound wall and gates need not be decided by the trial Court while deciding I.A.No.397 of 2017. Thus, whether the compound wall fell down on its own, whether the plaintiff herself removed it or whether the defendants demolished it or 12 Dr. VRKS, J C.R.P.No.551 of 2019 not are not germane for consideration while disposing of I.A.No.397 of 2017. The next fact in dispute was when the compound wall fell down. There is no factual observation contained in the impugned order on this aspect of the matter. However, the fact remains that now there is no compound wall. At least from all the averments in the plaint one should notice that the compound wall was standing by the time of filing of the suit. It is undisputed at the bar that the status quo orders, which are not filed before this Court, have no indication about existence or otherwise of the compound wall by the time of such status quo orders. Now that even according to the defendants in the suit, who are the respondents herein, there is now no compound wall and it was pulled down by the plaintiff herself prior to suit itself because she conceded to the perceived truth of the defendants that this compound wall existed not in the own property of the plaintiff but was in the property of the defendants. Admittedly, there is no counter claim from the defendants in the suit. It is not the case of defendants in the suit that there was any written acknowledgement from the plaintiff that she admitted encroachment on her part and her willingness to demolish the compound wall and the gates. In 13 Dr. VRKS, J C.R.P.No.551 of 2019 the absence of such things what one should see is that the compound wall that was narrated in the plaint was about to fall down by the time of the suit certainly fell down either because of acts of people or of its own thereby now the whole house is exposed to all sorts of creatures and thieves, putting the humans in the property to grave risk. It is that grave risk which the plaintiff intended to prevent. Her prayer in I.A.No.397 of 2017 is not a direction for interim mandatory injunction against the defendants. Her prayer is not for damages or compensation. Her prayer is only to permit her to have the wall and gates reconstructed. Every suit has to decide whether the case set up by the plaintiff is right or wrong and if it is right, whether the prayer sought for can be granted or not. A suit is not to decide what relief could be granted to defendants in that suit. That is a primary principle of law. When the plaint alleges existence of wall as on the date, whether such assertion is truthful and real or whether such assertion is false and made mala fidely is a question that has to be decided in the suit itself. But in the meantime, when the wall is lost and the men in the property are exposed to grave risk of natural elements and creatures or thieves, equity certainly requires to make a provision for 14 Dr. VRKS, J C.R.P.No.551 of 2019 creating security. The trial Court instead of bestowing its attention on it, it mulled over various aspects, which were not germane for decision in that application, since the plaint alleges existence of compound wall and since both parties admit by the time of I.A.No.397 of 2017 that wall was not in existence. This is always within the competence of the trial Court. The agony of the old woman to grant permission can be considered on a condition that she should furnish an undertaking that in the event of losing the suit, she would demolish the structures that she was permitted to raise. If the plaintiff failed to have an advocate commissioner appointed to take the measurements and if the plaintiff fails to prove that the wall is within her own property those matters would be considered by the trial Court at an appropriate stage and the decision would be taken in its final judgment. It is very difficult to accept the reasoning of the trial Court that wall that was allegedly available by the averments of the plaint if permitted to be re-erected it would make it difficult for the trial Court to decide the suit because that amounts to change of physical features. The error committed by the trial Court lies in not mentioning the description of the property in its status quo orders. Had it made a record of it properly, as is 15 Dr. VRKS, J C.R.P.No.551 of 2019 required under law, it could not have found it difficult to observe properly in addressing I.A.No.397 of 2017. The reasoning of the trial Court is that the petitioner/plaintiff did not pursue her interim injunction application is a cause for refusal to grant permission. It was in the last week of December, 2016 the suit was filed and it was in the first week of March, 2017 the plaintiff came up with this petition. Even in the interim injunction application the averments contain the apprehension concerning wall. When that being the case, it is not known as to why the trial Court would not have insisted parties to the litigation to participate in the enquiry. Instead of doing that, it simply thrusted the blame on the plaintiff. The reasoning of the trial Court that granting permission to reconstruct amounts to granting interim injunction is certainly ill-logical. Whether the wall that was allegedly available as on the date of suit going by the plaint averments was within the property of the plaintiff or it was an encroachment into the property of the defendants is a matter to be decided by the Court on final hearing of the suit itself and that has nothing to do in allowing rebuilding of the compound wall to prevent harm to the humans living in the property. A suit for injunction 16 Dr. VRKS, J C.R.P.No.551 of 2019 invokes jurisdiction at equity. Every Court while enquiring into the contentions and counter contentions should always keep in mind that a property is for people and if people are not secured, property serves no purpose. It may take time for a trial Court to properly collect evidence and accurately decide the dispute. But, if in the meantime people in the property are exposed to various hazards there is no meaning in finally finding who is right who is wrong. The trial Court whose inherent jurisdiction under Section 151 C.P.C. was invoked, was oblivious and was not pragmatic in its approach and thought of unnecessary questions, which were not really germane for a decision in an application for rebuilding. Therefore, the impugned order cannot be sustained.
12. Learned counsel for the respondents cited a judgment in Surya Dev Rai v. Ram Chander Rai1, wherein the Hon'ble Supreme Court of India had the occasion to expound the law contained in Articles 226 and 227 of the Constitution of India and changes in the law concerning revisional powers of a High Court contained in Section 115 C.P.C. and laid down a great 1 (2003) 6 SCC 675 17 Dr. VRKS, J C.R.P.No.551 of 2019 guidance for all the Courts to follow. The Hon'ble Supreme Court of India further held that Article 227 of the Constitution of India vests the High Court with wide powers to pave the path of justice and remove any obstacles therein. The Hon'ble Supreme Court of India also held that Article 227 of the Constitution of India confers corrective jurisdiction and it permits the High Court to substitute its decision over the decision of the trial Court. It further permits the High Court to give directions and guidelines. The other ruling cited is Siripurapu Sai Babu v. Siripurapu Srinivas2. This Court noticed the above ruling of the Hon'ble Apex Court and reiterated the law. Learned counsel for the respondents also cited a judgment in Dasari Ramachandra Rao v. Koripalli Venkata Rao3. In that case this Court was engaged in a decision during the execution proceedings and was to state about powers under Article 227 of the Constitution of India and powers under Section 115 C.P.C. It is stated therein that this Court could interfere with if there is manifest injustice in the order of the trial Court or when the power was exercised 2 (2020) 5 ALD 58/2020 SCC Online AP 591 3 2021 SCC Online AP 37/(2021) 1 ALT 616 (AP) 18 Dr. VRKS, J C.R.P.No.551 of 2019 capriciously. All these rulings which speak about the wide power of this Court while exercising revisional jurisdiction under Article 227 of the Constitution of India. In substance, they indicate that there is power to rectify miscarriage of justice. In the considered opinion of this Court, failure to concede to the prayer on part of the trial Court is undoubtedly created miscarriage of justice as it left the humans to grave risk, while the property in dispute was before the trial Court. Nobody needs to ordain the trial Court to be pragmatic and to be considerate to the human agonies which get escalated since the disputed questions of facts or law raised in the suit could not be decided in a Jiffy. For all these reasons this Court holds that the impugned order resulted in gross failure of justice and therefore, the same is to be set aside. The point is answered in favour of the revision petitioner.
13. In the result, this Civil Revision Petition is allowed setting aside the order dated 03.12.2018 in I.A.No.397 of 2017 in I.A.No.1287 of 2016 in O.S.No.1626 of 2016 on the file of learned II Additional Senior Civil Judge, Visakhapatnam. As a consequence, I.A.No.397 of 2017 in I.A.No.1287 of 2016 in O.S.No.1626 of 2016 is allowed. The petitioner is permitted to 19 Dr. VRKS, J C.R.P.No.551 of 2019 raise the compound wall, erect the gates after she offers an undertaking to the trial Court that she would demolish them depending on the final result in the suit. The revision petitioner shall also file before the trial Court all photographs prior to embarking upon construction and after completion of the construction and shall file a full report of the total measurements of the construction work that she has taken up. This permission is restricted to northern side compound wall and the gates alone. All observations made in this order are for this order alone and have no bearing over the suit. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 10.10.2022 Ivd 20 Dr. VRKS, J C.R.P.No.551 of 2019 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.551 of 2019 Date: 10.10.2022 Ivd