Madras High Court
L.Ameer vs R-1 M/S.Vak Engineering Pvt Ltd on 30 March, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30/03/2012 CORAM THE HON'BLE MS. JUSTICE K.B.K.VASUKI M.P. No.1 of 2011 in Crl.OP.No.28294 of 2009 L.AMEER .. PETITIONER VS R-1 M/S.VAK ENGINEERING PVT LTD BY ITS DIRECTOR MR.RAJESH MALHOTRA HAVING OFFICE AT NO.326 MKN ROAD ALANDUR CHENNAI -16 R-2 THE SUPERINTENDENT OF POLICE CRIME BRANCH CID HEAD QUATERS CHENNAI -02 R-3 THE INSPECTOR OF POLICE HEAD QUATERS CRIME BRANCH CID CHENNAI -02 R-4 THE COMMISSIONER OF POLICE CHENNAI SUBURBAN POLICE ST.THOMAS MOUNT CHENNAI R-5 THE INSPECTOR OF POLICE ST.THOMAS MOUNT POLICE STATION CHENNAI .. RESPONDENTS ORDER
This petition is filed by the third party to amend the order by removing T.S. No.122 in the order dated 22.12.2009 made in Crl.OP.No.28294/2009.
2.The facts, which are relevant for going into the relief sought for on merits, are as follows :
There are serious disputes giving rise to civil and criminal proceedings between M/s.V.A.K.Engineering Private Limited, who is the petitioner in Crl.O.P.No.28294/2009 and A.P.Rajagopalan since deceased and his legal heirs A.R.Sridharan and A.R.Kannan and L.Ameer, who is the petitioner herein and few others in respect of the lands and building comprised in Paimash Nos.716, 717, 718/1, 721/3, 722/2, 859 and 860 in Survey Nos.20/1 and 20/2 in T.S.Nos.121, 122, 105 and 138. M/s.V.A.K.Engineering Pvt. Ltd. claim title to the properties on the strength of sale deed dated 30.8.1973 executed in their favour by Garlic and Co. which was merged with Empire Dyeing and manufacturing co. Ltd.
3.M/s.V.A.K. Engineering Company filed the first suit O.S.No.170 of 1984 before the Sub Court, Chengalpet in respect of S.Nos.20/1 and 20/2 for the reliefs of declaration of its title over the suit properties and for injunction and the same was subsequently transferred to sub court, Poonamallee and renumbered as O.S.No.241/1984 and the same was thereafter transferred to this Court and renumbered as O.S.No.2853 of 1997. The suit was filed against Sri Kundrakudi Thiruvannamalai Mutt rep. by its Adheenakarthar and few individuals arraying them as D1 to 13 and the present petitioner L.Ameer was arrayed as the 13th defendant. During the pendency of the above suit, the plaintiff M/s.V.A.K.Engineering Pvt. Ltd. filed I.A.No.355/1985 against the defendants 3 to 5 for mandatory injunction to remove the huts newly constructed in the suit properties and the same was dismissed on the ground that the period of construction could not be ascertained. The order of dismissal was also confirmed in CMA.No.2/1986.
4.Whileso, the petitioner in this MP along with few others applied to the Settlement Officer, Thanjavur to grant patta in their favour in respect of Survey No.122 and the same was, after due contest between the petitioners and the respondent/M/s.VAK Engineering Co (P) Ltd., decided in favour of the petitioners by issuing joint ryotwari patta in favour of the petitioners in respect of T.S.No.122. Challenging the issuance of ryotwari patta, the respondent/ M/s.V.A.K.Engineering Company filed M.I.C.M.A. No.28/1993 before Inam Tribunal and the same was allowed by judgment dated 22.11.1995 thereby setting aside the order of the Assistant Settlement Officer. Aggrieved against the same, the petitioners before the settlement officer preferred S.T.A.No.2/1996 and pending appeal, M/s.VAK Engineering Co. Pvt. Ltd. filed STP.No.8 of 1996 for ad interim injunction restraining the respondents/petitioners from alienating the properties and the same was, after due contest dismissed by the Division Bench of this Court. The Division Bench, in the order of dismissal, referred to the earlier order dated 11.9.1985 made in IA.No.355/85 in OS.No.241 of 1984 as confirmed in CMA.2/1986 and the order made in I.A.No.27 of 1985 and dismissal of I.A. and relied upon the order passed in CMA.No.2/1996 and also found that the huts and buildings found in the suit land have been already put up and the question of prohibiting further construction and reconstruction of the building already constructed does not arise.
5.Simulteneously, criminal proceeding was initiated by M/s.V.A.K. Engineering Pvt. Ltd against A.P.Rajagopalan and Ameer and others as if they created forged documents in respect of the property to suit their claim. Pending disposal of the criminal proceeding, STA.No.2/1996 filed by L.Ameer and others was dismissed by the Division Bench of this court by order dated 23.12.2009 thereby setting aside the order of the Inam Tribunal and remanded the case to Inam Tribunal.
6.In the mean while, VAK Engineering Pvt. Ltd. filed I.A.No.1383/2003 in O.S.No.2853 of 1997 for amendment of the plaint for declaration and consequential injunction and recovery of possession. In the affidavit filed in support of this petition enclosed at page 75 onwards of the typed set of papers filed on the side of the petitioner in this MP, it is stated that the total extent of the property which is the subject matter of O.S.No.170 of 1984, which was transferred and renumbered as O.S.No.241/1984 and again transferred and renumbered as O.S.No.2853 of 1997, is 3.46.5 Hectares (2.93.0 and 0.53.5 Hectares in S.Nos.20/1 and 20/2 in Adhambakkam Village, Saidapet Taluk) = 11.44 acres of land, out of which, the plaintiff M/s.VAK Engineering Pvt. Ltd put up garment factory to the extent of 2.72 acres in Paimash No.860 in S.No.24/2 and TS.No.105 and in respect of Paimash Nos.717, 718/1, 721/3 and 722/2 in S.No.20/1 T.S.No.138, measuring an extent of 3.80 acres, and that there lies parallel lis between the plaintiff V.A.K. Engineering and one Sridharan and others. It is further stated that out of balance extent of 4.92 acres of lands, an extent of 1.32 acres of lands in Paimash No.716, Survey No.20/2 and T.S.No.121 have been leased out by Devasthanam and the lessees have put up construction and the remaining extent of 3.60 acres in Paimash Nos.717, 718/1, 721/3 and 722/2 in S.No.20/1 and T.S.No.122 are the lands in respect of which dispute is raised between the plaintiff and defendants 4 to 13 one among whom is L.Ameer and the same is the subject matter of the patta proceedings in S.T.A.No.2/1996. One of the proposed amendment sought for in I.A.No.1383 of 2003 by the company is for including reliefs of declaration and injunction and recovery of possession of the land in T.S.No.122 on the ground that the same is alienated by the defendants 4 to 13 and the purchaser is put in possession and put up construction pending suit and the amendment was ordered as sought for.
7.The second suit O.S.No.1714/1997 (O.S.No.18 of 1984) on the file of District Munsif, Alandur filed by A.P.Rajagopalan and two others against M/s.V.A.K.Engineering Co.Pvt. Ltd. for the relief of permanent injunction. The other suits are OS.Nos.1635 and 1826/1997 filed by M/s.V.A.K. Engineering Pvt. Ltd. for restraining the defendants therein from interfering with the plaintiff's peaceful possession of the property and for restraining the defendants from alienating the property. The petitioner in this MP L.Ameer is admittedly not one of the parties in O.S.Nos.1714 of 1997, 1635 and 1826 of 1997. The dispute over identification of the property came to be raised as one of the issues in all the three suits and all the three suits were disposed of by common judgment dated 28.2.2002 by District Munsif, Alandur, wherein, the suits OS.No.1635 and 1826 of 1997 filed by M/s.V.A.K.Engineering Pvt. Ltd were dismissed and the suit OS.1714/97 filed by the plaintiffs viz., A.P.Rajagopalan and his legal heirs was decreed. Aggrieved against the same, A.S.Nos.27 to 29 of 2003 came to be filed by M/s.VAK. Engineering Pvt. Ltd. Pending appeals, status quo was directed to be maintained.
8.In the mean while, A.S.Nos.27 to 29/2003 arising out of three suits O.S.Nos.1635 of 1997, 1826/1997 and 1714/1997 in respect of T.S.No.138 were commonly disposed of on 8.8.2003. Against which, second appeals SA.2007 to 2009 of 2004 came to be filed before this Court. During the pendency of the second appeals, M/s.V.A.K.Engineering Pvt. Ltd., who is the appellant in the second appeals, filed CMP No.17150 of 2004 to stay the operation of the judgment and decree made in O.S.No.1714 of 1997 and an order of status quo was ordered in the said petition. The respondents in the second appeals, R.Sridharan and A.R.Kannan filed Vacate CMP.No.1881 of 2005 and both CMP No.17150 of 2004 and VCMP.No.1881 of 2005 in S.A.No.2009 of 2004 were disposed of by common order dated 18.4.2005, in and under which, the vacate stay petition was allowed and stay petition was dismissed and the S.A.Nos.2007 to 2009 of 2004 were directed to be listed for final disposal.
9.Aggrieved against the order dated 18.4.2005 made in CMP.No.17150 of 2004 and VCMP.No.1881 of 2005 in SA.No.2009/2004, M/s.V.A.K.Engineering Pvt. Ltd filed SLP.Nos.10965 and 10966 of 2005 before the Supreme court. The Supreme Court ordered status quo until further orders. Subsequently, the Supreme Court by judgment dated 26.9.2008 disposed of the Civil Appeals Nos.5870 and 5871 of 2008 by directing status quo to be maintained till the disposal of the second appeals and by directing the second appeals to be disposed of expeditiously.
10.While the order of status quo as ordered in Civil Appeal Nos.5870 and 5871 of 2008 is in force, contempt petition Nos.130 and 131/2009 came to be filed by M/s.V.A.K. Engineering Pvt. Ltd. against R.Sridharan, A.R.Kannan and L.Ameer and Secretary to Government, Department of Revenue, Chennai, Member Secretary, CMDA, Chennai, Commissioner, Alandur Municipality, Collector of Kancheepuram District, Chairman, TNEB, Chennai, Inspector General of Registration, Superintendent of Police, CBCID, Head quarters, Chennai and the Commissioner of Police, Sub urban Police, Chennai) as if the order of statusquo is violated by the respondents by permitting construction. The Hon'ble Supreme court in the said contempt petitions, directed Alandur Municipality to ascertain about the allegations and as per the report filed by Alandur Municipality, demolition work was carried out in respect of 4 out of 5 premises. Subsequently, the Supreme Court disposed of the contempt petitions on 18.11.2010 on the basis of report filed by Alandur Municipality that demolition was carried out in respect of 4 out of 5 premises and by directing the petitioner to file Order XXXIX Rule 2A application within a period of four weeks regarding violation of the order. It is also observed therein that L.Ameer, who is the third respondent in contempt proceedings and not a party to the suit shall be given opportunity to file his reply in the application filed under Order XXXIX Rule 2A regarding violation of order of status quo.
11.M/s.VAK Engineering Pvt. Ltd. also filed WP.Nos.8433 and 8434 of 2009 against the Member Secretary, CMDA, Commissioner of Alandur Municipality and A.R.Sridharan and L.Ameer for issuing writ of mandamus for directing the respondents to remove unauthorised construction completely put up in T.S.Nos.121 and 122/4 Block No.16, No.107, Adambakkam Village, Kancheepuram District. The writ petitions were disposed of by issuing direction to CMDA and Alandur Municipality for taking action in accordance with law. The petitioner herein filed WP.No.1988 of 2010 against the Commissioner of Police, Sub Urban, St. Thomas Mount, Chennai and Inspector of Police, St. Thomas Mount Police Station, Chennai for writ of mandamus forbearing the respondents from interfering with his peaceful possession and enjoyment of the property in T.S.No.122, Adambakkam Village, Block-1 and also filed W.P.No.2282/2010 for writ of certiorarified Mandamus to call for entire records pertaining to the impugned notice dated 8.1.2009 issued by the respondent Municipality requiring demolition of the construction put up unauthorisedly without planning permission in T.S.No.122 and to quash the impugned demolition notice.
12.Much before the same, M/s.VAK Engineering Pvt. Ltd. filed WP.No.9309 of 2009 for directing the officials concerned and individuals to maintain statusquo as ordered by Apex Court and filed M.P.No.1 of 2009 in WP.No.9309 of 2009 for an order of injunction restraining the respondents 8 to 10 viz., A.R.Shridharan, A.R.Kannan and L.Ameer, their men, agents, servants or anybody claiming through or under them from dealing with and altering in any manner the nature of the petitioner's property in T.S.Nos.121, 122 and 138 to an extent of 8.75 acres in Ward E, Block 1 of Adambakkam Village, Kancheepuram District pending writ petition and the same was ordered on 20.11.2009 by the Division Bench of this court and the order reads as follows:
"We have heard the parties and seen the counters filed by them. We feel that pending the writ petition, it is necessary to protect the property from any change either with regard to ownership or with regard to construction or possession and therefore, interim injunction already granted is made absolute".
13.Pending writ petition, MP.No.4/2009 was filed for amending the prayer in the writ petition by including further direction to the respondents 2 and 3 viz., Member secretary, CMDA and the Commissioner for Alandur Municipality to restore status quo by cancelling all the documents including document No.1030 of 2007, entries, records with regard to the property in question in T.S.Nos.121, 122 and 138 to the extent of 8.75 acres etc and MP.4 of 2009 was after contest, dismissed. Thereafter, WP.No.9309 of 2009 was taken up for final disposal and was seriously contested by both the parties and one of the grounds raised by L.Ameer/10th respondent therein, who is the applicant herein, is that the writ petition is one for maintaining status quo with regard to the properties in CMP.Nos.17148 to 17150/2004 and when the 10th respondent L.Ameer is not a party to the suit and when TS.No.122 is not included in the suit, the order of status quo does not bind the 10th respondent and the interim prayer asked for in respect of T.S.No.122 is not permissible in law. The Division Bench, in para 13 of its order, after having observed that the disputed question of fact can be decided only in the suit, was not inclined to pass any fresh orders except stating that the order of the Supreme Court shall be complied with until the second appeals are disposed of. As against the order made in WP.No.9309 of 2009, SLP.No.12616 of 2010 is also filed by 10th respondent/L.Ameer therein and the writ petition order was challenged before the Supreme Court on the ground that no status quo order can be issued against the petitioner as he is not a party before the Supreme Court on earlier occasion.
14.Thereafter M/s.VAK Engineering Pvt. Ltd. filed contempt petition No.474/2009 against the respondents in the writ petition as if the respondents 8 to 10 one among whom is the present petitioner L.Ameer through their henchmen are continuing the act of trespass into the property belonging to the petitioner co. thereby willfully flouted the order dated 15.5.2009 passed in MP.No.1 of 2009 in WP.No.9309/2009 and the respondents 8 to 10 also indulged in fraud and continue to deal with the property. The contempt petition was contested by the respondents 8 to 10 and in the counter filed by the respondents 8 to 10, one of the points raised is that TS.No.138 is the subject matter of the second appeals and T.S.No.122 is not included in the suit. Pending contempt petition, the 10th respondent filed additional affidavit thereby furnishing the names and particulars of the companies who are running the Car rentals in T.S.No.122. The Division Bench of this court, after considering the submissions made on both sides, dismissed the contempt petition on the ground that there is no contempt made out against the respondents 8 to 10 and the order passed in the writ petition will take care of the interest of the writ petitioner.
15. After the disposal of Writ Petition, A.R.Sridharan, who is the 8th respondent in the Writ Petition, filed MP.No.5 of 2009 in WP.No.9309 of 2009 for directing the first respondent M/s.VAK Engineering Pvt. Ltd. to remove the locks and seal on the gates and painting on the compound wall of the property of the petitioner at Paimash Nos.723/3, 724, 722/4 of Adambakkam Village. The petition was allowed by the Division Bench of this Court on 23.12.2009 thereby directing the police officer, who is present in the court, to open all the gates with direction that any dispute between the parties shall be dealt with by the concerned police station in accordance with law. The Division Bench while ordering the petition, clearly observed as follows:
"By our order, we had merely indicated that the order passed by the Supreme Court directing status quo should be complied with by all. That does not mean that lock should be put on gates, so that ingress and egress is curtailed. We are not deciding the matter afresh. We are not reconsidering the issue decided. We are only reinforcing the order passed by us 8.12.2009 in this writ petition. We are bound to ensure that all the parties do obey the order of the supreme court without any deviance. It is for this reason, we have entertaining this miscellaneous petition.
16. Even during pendency of the contempt petitions, on the file of the Supreme Court, M/s.VAK Engineering Pvt. Ltd came forward with Crl.O.P.No.28294 of 2009 against the Superintendent of Police, CBCID, Chennai, the Inspector of Police, Head Quarters, CBCID, the Commissioner of Police, Chennai Suburban Police, St. Thomas Mount, Chennai and the Inspector of Police, St. Thomas Mount, Chennai to direct the respondents 3 and 4 to provide appropriate action to the life and liberty of the directors of the petitioner's company, its employees and its security staff in the petitioner's property comprised in T.S.Nos.121, 122 and 138 in Ward E Block 1, Adambakkam Village, Kancheepuram District. This petition was filed along with typed set of papers containing the following documents: (i)report of the Enquiry Officer in the petition given by M/s.VAK Engineering Pvt. Ltd to Revenue Minister against R.Sridharan since deceased and Village Administrative Officer, Adambakkam Village regarding certain malpractice allegedly committed by the Village Administrative Officer (ii)charge sheet filed by CBCID on 14.1.2005 against A.R.Shridharan, A.R.Kannan and L.Ameer, (iii)charge sheet filed in C.C.No.176 of 2005, (iv)FIR dated 9.6.2008 filed in Crime NO.64/2009 against A.R.Sridharan, A.R.Kannan and L.Ameer and (v)complaints given by M/s.VAK Engineering Pvt. Ltd. dated 14.12.2009 and 18.12.2009 against the same persons. This court by order dated 22.12.2009 ordered Crl.O.P.No.28294/2009 by directing the third respondent police official to provide police protection to the properties of the petitioner company and with further direction to the third respondent to take appropriate action to safe guard the person, in the event of any specific instances being brought to the knowledge of the third respondent, warranting police protection for personal safety.
17.Aggrieved against the same, the present petition is filed by L.Ameer to amend the order by removing T.S.No.122 from the order passed in Crl.O.P.No.28294/2009 on 22.12.2009 mainly on the ground that the police protection is sought for on the strength of status quo granted by the Supreme Court, but T.S.No.122 is not the subject matter of the order of status quo and the order dated 22.12.2009 made in Crl.O.P.No.28294/2009 in respect of T.S.No.122 is uncalled for and unwarranted and is not legally and factually sustainable.
18.The petitioner herein also filed WP.No.1988 of 2010 for forbearing the respondents viz., the Commissioner of Police, St.Thomas Mount, Chennai and the Inspector of Police, ST. Thomas Mount Police Station, Chennai from interfering with petitioner's peaceful possession and enjoyment of the property in T.S.No.122, Adambakkam Village, Block-1 and the said writ petition was dismissed on 11.02.2010 on the ground that no writ of Mandamus can be issued in view of various litigations between the parties in respect of the same property. Aggrieved against the same, the petitioner L.Ameer filed writ appeal in WA.No.1249 of 2010. Pending WA.No.1249 of 2010, the appellant in the writ appeal filed Contempt petition in Cont.P.Nos.108 and 146 of 2010 against the Director, M/s.VAK Engineering Private limited; Deputy Commissioner of police; Inspector of Police, St.Thomas Mount Police station; Commissioner, Alandur municipality; Commissioner of police (Suburban), St.Thomas Mount, Chennai to punish the respondents for willful disobedience of the order dated 23.12.2009 and 08.12.2009 made in MP.5 of 2009 in WP.No.9309 of 2009 and WP.No.9309 of 2009 respectively. The contempt petitions and WA.No.1249 of 2010 along with MP.1 of 2010 were dismissed on 31.01.2011 by the Division Bench of this Court on the ground that if there is any violation of the order, the party aggrieved should have moved the Hon'ble Supreme Court instead of filing separate writ petition for execution of the order passed by the Hon'ble Supreme Court.
19. Though the relief sought for herein is to amend the order dated 22.12.2009 made in Crl.OP.No.28294 of 2009 by removing TS.No.122 Adambakkam village from the order, the actual relief sought for herein is to set aside the impugned order in so far as TS.No.122 is concerned.
20. Before going into the relief sought for herein on facts, the legal objection raised herein against the maintainability of one such relief is to be first considered. According to the respondents, the prayer to reopen the case and to rehear the matter so as to alter the verdict passed by this Court, cannot be entertained and no power of review is conferred by the Code of Criminal Procedure either under Section 362 or any other provisions of law, and no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error.
21. Per contra, the learned counsel for the petitioner would seriously contend that all courts whether civil or criminal possess inherent power necessary to do right or undo a wrong in the course of administration of justice and the same can be exercised to quash any proceedings or to recall any order, which is obtained by abuse of process of law and without giving an opportunity of being heard to a party, who is entitled to be heard, and the power of recalling the order is different from altering or reviewing an order. Even otherwise, the High Court being the court of record, has the inherent power to review its own judgment as and when warranted and when the judgment is obtained by practicing fraud, the inherent powers can be invoked under Section 482 of the code to secure ends of justice by recalling the order.
22. The learned counsel appearing on both sides have in support of their respective contentions, cited the following authorities.
The authorities cited on the side of the petitioner are:
1.CDJ 2006 SC 315 Minu Kumari & another V. The State of Bihar and others ;
2.CDJ 2007 SC 148 Deepa Gourang Murdeshwar Katre V. The Prinicpal VAV College of Arts and others;
3.CDJ 2008 SC 449 R.Rajeshwari V. HN.Jagadish;
4.CDJ 2008 MHC 4917 Rajammal V. The Secretary to the Government, Home Dept., Fort St. George, Chennai & others;
5.CDJ 2000 MHC 165 GA.Vadivelu and another V. Shengbagarajan;
6.CDJ 2000 APHC 323 Shaik Bande Ali V. State of AP;
7.CDJ 2007 APHC Vijaya V. State of AP;
8.CDJ 2007 DHC 1006 Shri Parmod Bagga and others V. State and
9.CDJ 2011 BHC 184 Anil Shashikant Dukhande V. The State of MP.
The authorities cited on the side of the respondents are :
1.2001 SCC (crl.) 113 Hari Singh Mann V. Harbhajan Singh Bajwa;
2.2008 (1) SCC (crl) 537 Sunitha Jain V. Pawan Kumar Jain and others; and
3.CDJ 2008 MHC 1879 Suresh Kumar V. State rep by its Inspector of Police.
23. Before going into the law laid down in the authorities cited on the side of the petitioner, the applicability of the observation passed by the Supreme Court and our High Court in the authorities cited on the side of the respondents shall be first considered.
24. It is true that the Supreme Court has in the judgments cited above on the side of the respondents, observed that no power of review is conferred upon criminal court by the court under Section 362 or any other provisions of law, and no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and in the absence of any express power, alteration or modification of judgment or order is not permissible. The similar observation is made by the learned single judge of our High Court by following the earlier judgments. But the relevant factor to be observed herein is that in all the cases cited above, unlike in the instant case, the order sought to be altered or reviewed is passed after hearing both the parties in full.
25. Whereas in the present case, the order of police protection is sought for in Crl.OP on the strength of enquiry report and pending criminal proceedings in respect of malpractice and criminal acts allegedly practiced by AR.Rajagopalan since deceased, AR.Sridharan, AR.Kannan and L.Ameer and though the order sought for is to maintain the order of status quo passed by the Supreme Court against AR.Sridharan and AR.Kannan and though contempt proceedings in Cont.P.Nos.130 and 131 of 2008 in respect of the same order, is initiated against AR.Sridharan, AR.Kannan and L.Ameer, the petitioner/company therein, who is the respondent herein, did not think fit to make them as parties to the proceedings in respect of the lands regarding which serious civil dispute is pending between the company on one hand and individuals on the other hand. In that event, in my considered view, the observation of the Supreme Court, our High Court and other High Courts in the authorities cited on the side of the petitioner, is not applicable to the facts of the present case.
26. In the authorities cited above, the Supreme Court has held that (1) all courts whether civil or criminal possess inherently all such powers as are necessary to do the right and undo a wrong in the course of administration of justice (2) the inherent powers can be exercised (i) to give effect to the order under the code (ii) to prevent abuse of process of court and (iii) to otherwise secure the ends of justice and (3) in some rare cases, the High Court can review its own order wherein the judgment has been obtained from it by practicing fraud, if a fraud or misrepresentation of such a dimension is discovered and that the very basis of the order passed by a Court of law is affected, the court can recall its order.
27.The Hon'ble Division Bench of this Court in para 12 of the jugement reported in CDJ 2008 MHC 4917 observed that "Section 362 Cr.P.C prohibits all courts from altering or reviewing its judgment when once it has signed it, these inhibitions however do not come in the way of exercising inherent powers to undo grave miscarriage of justice or correcting inadvertent breach of mandatory provision of law."
28. In CDJ 2000 MHC 165 the learned single judge has negatived the contention that once the final order is passed in quash proceeding, the court has no power to review or revise the order already passed and observed such power can be exercised under the provisions of Section 482 of the Cr.P.C. to secure the ends of justice. It is held so by relying upon the Division Bench judgment of this court 1924 AIR (Mad) 640 T.Somu Naidu, in re, wherein the Division Bench has emphasized that reasonable opportunity for the accused to be heard is an essential condition precedent to exercise of jurisdiction and any disposal without affording a reasonable opportunity of being heard is unjust.
29.In the above case cited, the proceedings against the accused before the High Court was originally quashed without giving any opportunity to the complainant being heard and on petition filed by the complainant, the order quashing the proceedings was recalled and quash petitions were restored for rehearing. When the same was questioned by the accused before the High Court, the High Court was pleased to uphold the order of recalling for want of opportunity of being heard given to the complainant. While doing so, the High Court has relied upon the Division Bench judgment of our High Court in 1924 AIR (Mad) 640 in T.Somu Naidu, In re and full bench judgment of Rajasthan High Court in 1987 AIR (Raj) 83 Habu V. State of Rajasthan, wherein the full bench of Rajasthan High Court has passed identical order thereby recalling the judgment already pronounced on the ground that the opportunity of hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482 of Cr.P.C. While doing so, the Rajasthan High Court is also pleased to distinguish the difference between review and revision and recalling judgment or order to afford an opportunity to the accused of being heard. In the same judgment, our High Court has also referred to the order of the Supreme Court in M.S.Ahlawat V. State of Haryana wherein the Supreme Court considered the recalling of their own order and it is held when a litigant complains of miscarriage of justice by order of Supreme Court without jurisdiction or without following due procedure, the Supreme Court has the power to rectify the error if any, as to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.
30. In CDJ 2000 APHC 323, the learned single judge is of the clear view that if any apparent error is noticed by this court in respect of any of its orders, it has not only power, but also a duty to correct it. The High Court is duty bound to keep its records correctly and for that purpose can always correct its record. The High Court cannot be denied the power of correcting its own record, when it notices the apparent errors. Such denial may dwindle down the superior status of the High Court.
31. The Andhra Pradesh High Court has in the judgment reported in CDJ 2007 APHC 074 observed that the High Court can exercise its inherent powers, having regard to circumstances and in order to secure the ends of justice.
32. The Delhi High Court has in the judgment reported in CDJ 2007 DHC 1006 recalled its own order. In the case decided by the Delhi high court, the petition was filed by non applicant for modification/correction of the order on the ground that she was necessary party and the order was obtained without impleading her as a party. The order was recalled and it was observed by the court that once mistake of this kind is pointed out, the Court would have no hesitation to recall that order and such a jurisdiction is independent of Section 362 of Cr.P.C. Therefore, it is not on the premises that the court is reviewing the order and legal principles regarding review are to be applied, but on the ground that necessary parties were not heard and it was imperative to hear them and on this precedent, the court is exercising its jurisdiction.
33. The Delhi High Court has in paras 11 to 16 of its judgment referred to Catenna of decisions of Supreme Court and High Court wherein it is settled that an order passed in violation of the principle of natural justice is void in law. The authorities referred to therein where such law laid down are 2004 13 SCC 472 P.Sundarrajan V. R.Vidyasekar; 1996 (3) SCC 364 State Bank of Patiyala V. S.K.Sharma; 1994 (4) SCC 422 Krishan Lal V. State of Jammu and Kashmir; AIR 1954 SC 340 Kiran Singh and others V. Chaman Paswan; Air 1985 SC 1416 UOI V. Tulsiram Patel; AIR 1990 SC 1480 Chavan Lal Sahu V. UOI. In paragraph 13 of its judgment 1996 (3) SCC 364 is referred to wherein the Supreme Court has interestingly discussed the distinction between no opportunity and no adequate opportunity i.e., between 'no notice/no hearing' and 'no fair hearing' and held in the case of former the order passed would undoubtedly be invalid and one may call it 'void' or a 'nullity' if one chooses to. In such cases, normally, liberty will be reserved for the authority to take proceedings afresh according to law in accordance with the rule audi alterant paitem.
34. That being the legal position laid down by the Supreme Court, our High Court and other High Courts, this court has no hesitation to negative the objection raised against the maintainability of the relief sought for on the sole ground that earlier order dated 22.12.2009 is obtained against the petitioner without making the petitioner as one of the parties and without giving him an opportunity of being heard, as such, the order is in violation of principles of natural justice and is invalid and is liable to be either set aside or recalled, altered or modified in the event of the petitioner succeeding on merits.
35. On facts, admittedly, serious disputes are pending between the parties in respect of TS.Nos.105, 121, 122 and 138 and the dispute is between M/s.VAK Engineering Private Limited on one hand and AR.Sridharan and AR.Kannann in respect of TS.No.138. The dispute between the same company and the petitioner in this Miscellaneous petition/ L.Ameer is in respect of TS.No.122 and the dispute relating to title is challenged upto Supreme Court at interlocutory application stage and the main dispute is now pending determination in S.A.Nos.2007 to 2009/2004 and O.S.No.2853/97 and in settlement proceedings before Inam Tribunal in respect of TS.No.122. It is not in dispute that Apex Court's order of status quo is sought to be enforced by the company in WP.No.9309 of 2009 by filing Cont.P.Nos.130 and 131 of 2009 and Cont.P.No.474 of 2009. In all the proceedings as above referred to, the petitioner herein raised serious dispute that he is not a party to the suit and that TS.No.122 is not the subject matter of the suits and hence, the order of status quo passed by the Hon'ble Supreme Court is not in respect of TS.No.122 and the order passed in Crl.OP.28294 of 2009 ought not to have covered TS.No.122.
36.The petitioner company has admittedly sought the police protection and security to the properties in question only on the strength of order of status quo passed by the High court and confirmed by the Supreme Court. If that is so, the relief sought for herein can be restricted only in respect of the properties covered under the order of status quo, which are suit schedule properties pending in second appeals. The present MP filed by the petitioner L.Ameer to exclude T.S.No.122 is solely on the ground that the same is not the subject matter of the civil suits pending in second appeals. The attention of this court is also drawn to the fact that such contention raised on the side of the petitioner herein is also either accepted or referred to in the earlier proceedings by the Division Bench of this court and the civil court, wherein OS.2853 of 1997 filed by the company is pending. This Court is also inclined to on the basis of the reference so made in the earlier proceedings and also on the basis of the facts and circumstances and the documents available herein, accept the claim made by the petitioner L.Ameer for the following reasons.
37.The facts referred to in the foregoing paragraphs would disclose that there are three parallel proceedings in respect of the property in dispute comprised in T.S.Nos.121, 122 and 138, which are (i) patta proceedings before settlement officer (ii) four civil suits, three out of which culminating into Second appeals pending before the High Court and (iii) writ proceedings. The reading of various orders passed in various proceedings, as referred to above, would reveal that there are more than one order, wherein non inclusion of T.S.No.122 in the civil suits culminating into second appeals filed by M/s.V.A.K Engineering Private Limited is referred to. The civil suits are O.S.Nos.1635/97 and 1826 of 1997 and 1714/1997. While O.S.Nos.1635 and 1826/1997 are filed by M/s.V.A.K. Engineering Private Limited against A.P.Rajagopalan, O.S.No.1714 of 1997 is filed by A.P.Rajagopalan since died against M/s.V.A.K Engineering Private Limited. L.Ameer, who is the petitioner in this MP, is admittedly not impleaded as party to three suits above mentioned. As far as revenue proceeding is concerned, they deal with the dispute relating to issuance of patta. The dispute relating to possession in T.S.No.122 is not the issue in controversy either in patta proceedings or writ petitions. The issue relating to possession is incidentally raised in writ proceedings. Whereas, the same is the main controversy in issue in all the three civil suits above referred to. All the three suits O.S.1635, 1826 and 1714 of 1997 are tried together and are decided against the company and the trial court decree was confirmed by the lower appellate court. Aggrieved against the same, the company M/s.V.A.K Engineering Private Limited preferred SA.Nos.2007 and 2008 of 2004 and the same are pending before this court. The company also filed two CMP Nos.17148 and 17149 of 2004 seeking order of statusquo of the suit schedule property mentioned in O.S.Nos.1635 and 1826 of 1997. The description of the schedule of property in both the suits as well as in CMPs is as follows:
O.S.1635/97 and CMP.17148/2004:
Land having a total area of about 8 acres 75 cents together with the factory superstructure thereon in Paimash Nos.716, 717, 718, 721, 722, 859 and 860 in Adambakkam Village within the Sub Registration District of Alandur, Saidapet Taluk, bounded on the north by the Street, South by Railway Line, east by Vacant land and on the West by Chennai; and O.S.1826/97 and CMP.17149/2004:
Vacant site of an extent of 3.80 acres in Old S.No.206 paimash nos.717, 718/1, 721/3, 722/2 and T.S.No.138 situated at Adambakkam, Saidapet Taluk bounded on the east by T.S.No.122 property owned by the plaintiff, West by burial ground Road, South by Railway line and North by Hoffmans Street.
38.The interim reliefs claimed in CMPs in respect of the properties above mentioned are against the defendants therein for restraining them from alienating or encumbering the property and from putting up any construction. The injunction and vacate injunction applications are disposed of with an observation that as and when the property forming the subject matter of the suits is developed and if conveyances are executed, the respondents would incorporate a covenant in the said sale deeds that the sale/purchase to the prospective buyer/buyers would be subject to the final orders in the second appeals pending on the file of this Court. The order of statutquo as passed by the High Court was also directed to be maintained vide the order of the Supreme Court. The nature of the relief and the nature of order thereon passed by this court would reveal that the company is not in possession of the subject matter of injunction application and possession of the same lies with the respondents.
39.Similar observation is passed in MP.No.1 of 2009 in WP.No.9309/09. When the injunction order gave raise to contempt petition No.474 of 2009, a report is called for with regard to the manner of usage of the property as parking lodge by the 10th respondent L.Ameer who is the petitioner herein and as per the additional affidavit filed by the 10th respondent, T.S.122 is leased out to Car Travels company and the details of rental companies in the occupation of T.S.122 as furnished by the 10th respondent is also incorporated in para 8 of the order dated 8.12.2009 made in WP.No.9309 of 2009 and MP.Nos.1 to 4 of 2009 by the Division Bench of this court enclosed at pages 6 to 17 of the typed set of papers dated 21.12.2009 filed by the company in Crl.OP.No.28294 of 2009. In para 11 of the same order, the Division Bench of our High court has referred to the fact that L.Ameer is not a party to the suits and TS.No.122 is not included in the subject matter of the suits. When objection is raised before the Division Bench that the writ of mandamus to maintain the statusquo can only be with regard to the properties in the CMPs and in the second appeals and the interim prayer sought for to include T.S.No.122 is not permissible in law, the Division Bench is pleased to dispose of the writ petition by directing the order statusquo as passed by the Supreme Court to be maintained until the second appeals are disposed of.
40.The fact that A.R.Sridharan and others are concerned with TS.No.138 and L.Ameer with T.S.No.122 and the main grievance of the company is against the construction activities carried on in both the TS numbers by A.P.Rajagopalan and L.Ameer respectively, is also referred to in the order dated 8.12.2009 made in Contempt Petn.No.474/2009 filed by the company against individuals. There also, the Division Bench of our High court, by taking into consideration the averments made by the contesting respondents viz. the petitioner L.Ameer and Sons of A.P.Rajagopalan regarding the manner of their occupation and their construction activities that was carried on in the same, is pleased to observe that no contempt is made out against sons of A.P.Rajagopalan and L.Ameer. The same Division Bench of our High court also by order dated 23.12.2009 in MP.No.5/2009 in WP.No.9309/2009 filed by A.R.Sridharan against the company and others, observed that no lock should be put on gates, so as to curtail ingress and egress and directed removal of lock put up on gates by the company. The Division Bench of our High court had another occasion to deal with this aspect in contempt petition nos.108 and 146/2010 and WA.No.1249 of 2010 and MP.1/2010. The contempt petitions and writ appeal are filed by L.Ameer against the order passed in WP.Nos.9309 of 2009 and 1988 of 2010. The Division Bench in para 6 of its order dated 31.1.2011 mentioned that TS.122 is not included in the suits.
41.Above all, the company is not in possession and enjoyment of TS.No.122 is evident from the relief sought for by the company in O.S.No.2853/97, which is filed by the company M/s.VAK Engineering Private Limited against Sri Kundrakudi Thiruvannamalai Mutt rep by its Adheenakarthar and Thiruvatteeswarar Devasthanam and 11 others, wherein L.Ameer is arrayed as 13th defendant. The suit is originally filed for declaration of the plaintiff's title and for permanent injunction. Pending suit, I.A.No.1383 of 2003 came to be filed seeking amendment and the amendment proposed to be made is to the effect that the plaintiff's garment factory is put up in 2.72 acres in Paimash Nos.859 and 860 and the civil suits culminating into second appeals are in respect of 3.80 acres in TS.No.138. Out of balance 4.92 acres, an extent of 1.32 acres in Paimash No.716 in S.no.20/2 and T.S.No.121 is leased out by Thiruvateeswarar Devasthanam, Triplicane and the lessees put up construction. The proposed amendment under clause (d) is relating to 3.60 acres in Paimash Nos.717, 718/1, 721/3 and 722/2 in S.No.20/1 and corresponding TS.No.122 and the dispute as per the averments raised in the amendment I.A, between the plaintiff and the defendants 4 to 13 is in respect of T.S.122 which is also the subject matter of patta proceedings and the same is sold to third party by the defendants 4 to 13 and third party is in possession by putting up construction etc and the amendment sought for in the plaint in respect of T.S.No.122 is for inclusion of reliefs of declaration of title and recovery of possession.
42.Thus, the conjoint reading of the averments raised and claim made by the parties in various proceedings and documents filed therein and the finding rendered based on the same would disclose that there are serious dispute between M/s.V.A.K Engineering Private Limited on one hand and different set of rival claimants on the other hand in respect of the lands comprised in TS.nos.121, 122 and 138 in Ward E, Block 1 at Adambakkam Village, Kancheepuram District and various civil, criminal, writ and patta proceedings are pending between the parties, wherein the factum of possession of the property by rival claimants is also impliedly and at times explicitly admitted by the company, as such, the petitioner/company has no right to seek any direction to be issued to police official to provide security to the properties in dispute on the ground that the same is in possession of the company and the same is sought to be interfered with in such a manner endangering the person and property of the employees including security staff belonging to the company.
43.As already referred to, the petitioner company came forward with criminal original petition suppressing very many facts regarding pendency of other criminal, civil, writ and patta proceedings involving disputed question of title and possession and without impleading necessary parties, by whom the dispute is raised. The petitioner has also not produced all the relevant documents referred to in all the proceedings before seeking the relief of protection to the person and property comprised in TS.Nos.121, 122 and 138. The petitioner company conveniently omitted to produce the copies of earlier order, wherein the disputed question of title and possession is discussed and referred to. The averments raised in Crl.OP.No.28294 of 2009 simply proceed as if the properties comprised in all the three TS numbers do belong to the petitioner company and the person referred to as accused in the police complaint attempted to enter into the same by breaking open the lock put up on the gates of the petitioner company etc. At this juncture, it is but necessary to recollect the order passed by the Division Bench in MP.No.5 of 2009 in WP.No.9309 of 2009 on 23.12.2009 directing removal of lock put up on the gates by the petitioner company. The order dated 23.12.2009 in Crl.OP.No.28294 of 2009 is thus obtained behind the back of rival claimants and by suppression of material facts and documents, as such, the same is necessarily to be held legally vitiated and is unenforceable against non party rival claimants. Had all contesting rival claimants been made parties and had all facts and earlier proceedings been referred to in the criminal original petition, there is every possibility that it would not have ended in any order in favour of the petitioner company. This Court is of the view that considering the nature of the dispute involved herein and the pendency of second appeals and civil suits, it is not likely to serve any purpose, if the order is simply recalled and criminal original petition be reheard. As the order passed on earlier occasion would undisputedly show or at least lead to an inference that the possession of TS.No.122 is not with the petitioner company, the question of granting any security to protect the same does not arise. Hence, this Court is inclined to, having regard to all the facts stated supra, set aside the order made in Crl.O.P at least in respect of disputed T.S.No.122 as sought for herein.
44.In the result, the petition is ordered as prayed for.
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