Kambhampati Sovamma v. G. Radhakrishna Murthi .

(1) The petitioner is the defendant in the lower court. The revision arises against the order in i. A. No. 1735/82, filed under section 151 c. P. C. To direct the respondent to demolish the wall and eves constructed by him in the first floor of the suit building.

(2) The admitted facts are that the respondent was residing in the house bearing no. 11 - 31 - 27, park road, vijayawada as a tenant. The petitioner filed suit o. S. 1546/80, in the lower court for perpetual injunction restraining the landlord of the respondent from interfering with the possession and making any further constructions. In i. A. No 6002/80 the trial court issued temporary injunction on december 6, 1980 restraining the landlord of the respondent from making any constructions. The respondent claiming to be the tenant in the plaint schedule property under an oral lease he was authorised to construct a b wall and eves at c d and when he made arrangements by stocking the material for construction thereof the petitioner was interfering with the construction, filed the suit, o. S. 1521/80 for permanent injunction to restrain the petitioner and her men from interfering with his possession of the portion marked a b c d and f e in the plaint plan and not to obstruct the construction of the wall at point a b and eves at c d by the respondent. He also filed two applications, one for temporary injunction and another, being i. A. 5914/80 for appointment of a commissioner to supervise the construction of the wall at point a b and the eves at c d and to file his report and plan. These applications have been ordered exparte on december 8, 1980. In pursuance thereof, a b wall was constructed with the eves at c d under the supervision of the commissioner and he submitted his plan and report. The suit was posted from time to time. Ultimately it was dismissed on december 1, 1981, as not pressed reporting that the respondent - plaintiff vacated the premises. Four and half months thereafter i. E. , on april 15, 1982, the petitioner filed the present application and also another application, being i. A. 1734/82 for exemplary costs. The lower court dismissed the application on the sole ground of delay to approach the court. Petitioner also averred in his affidavit, that a photostat copy of the injunction order in i. A. 6002/82 was brought to the notice of the commissioner yet without stopping further construction he facilitated the respondent to proceed with the construction. Accordingly the construction was completed.

(3) In this revision it is contended that the lower court having facilitated the respondent for construction of the wall at a a b and eves c d, ought to have made an order to restitute the position which the parties occupied prior to the institution of the suit. The failure to exercise this power constitutes error of jurisdiction. It is also the case of the petitioner that the acts of the respondent constitute gross abuse of the process of the court and that abuse cannot be allowed to be perpetrated.

(4) Sri harinath, learned counsel for the respondent, on the other hand, contended that it was open to the party to make a request at the time when the suit was dismissed to undo, the wrong if any, was done at the instance of the court. The dismissal of the suit was allowed to become final. Since this application is filed four and half months after the dismissal of the suit, the court becomes functus officio and it has no jurisdiction to entertain the application. Even otherwise, he contends that if the order is to be made, it amounts to granting mandatory injunction for demolition of the wall constructed on the premises to which the land - lord is not a party. He also further contended that there is an alternative remedy available to file a suit for mandatory injunction for demolition of the wall. The lower court has exercised its discretion refusing to order restitution. section 144 of the code of civil procedure does not apply to the facts in this case because there is no reversion or variation of a decree of the civil court. Inherent powers under section 151 c. P. C. Are discretionary. The lower court exercised its discretion properly and did not grant the relief to the petitioner. Therefore it does not warrant interference in the revision.

(5) Upon these respective contentions, the questions that arise for consideration are : 1. Whether section 144 c. P. C. Applies for restitution as sought for? 2. If not, whether the application under section 151 c. P. C. Be ordered this court could interfere with the order passed by the lower court ?

(6) It is clear that the construction was made after the injunction order was issued in i. A. 6002/80 in o. S. No. 1546/80 dated december 6, 1980 restraining the respondent's landlord from proceeding with the construction. The landlord obviously manoeuvere the respondent claiming to be a tenant and though got filed o. S. 1521/80 earlier, yet the order of injunction was obtained on december 8,1980 obviously to circumvent the order in i. A. 6002/80. Instead of asking for mandatory injunction he asked the assistance of the court to appoint an advocate commissioner to be present at the site of construction to facilitate him to proceed with the construction and completion thereof. The court passed the order dated december 8, 1980 and pursuant thereto, the construction was completed. Ultimately the suit was got dismissed after the fulfilment of the object. The question is whether the restitution can be ordered on the above facts and circumstances. Technically the decree dismissing the suit is innocuous. The question of its variation or reversal on appeal does not arise. The petitioner is not aggrieved of the decree. The question is whether the acts done by the respondent pursuant to the interim orders passed by the court can be allowed to remain unaltered. The finding of the lower court is that construction was made with the assistance of the court and this is a mischief played by the respondent. That finding is not even assailed now. A division bench of this court to which i am a party, in b. Ramaiah vs. K. Butchaiah considered the applicability of section 144 of c. P. C. To a case where a party was deprived to enjoy his property due to appointment of a receiver and substantial injury has been caused as a result of the order of the court. It was held that with a view to render substantial justice to the parties, the principle, of equity has been incorporated in sec. 144 c. P. C. To give relief to the parties where justice demands. In that case the order appointing receiver was not in fact reversed or varied but ultimately the suit was dismissed. The division bench held that the dismissal of the suit amounts to reversing the order appointing the receiver though no apptal was filed against the order of appointing the receiver. The person responsible for the result would be made liable to meet the consequences. As a necessary sequal to the dismissal of the suit it was held that the fee paid to the receiver should be directed to be taxed as costs, in exercise of the power under sec. 144 c. P. C. It was also held that inherent powers can be invoked under sec, 151 c. P. C. And no separate suit need be filed.

(7) The ratio therein would apply to the facts in this case with equal force. The facts in this case clearly disclose that attempt of the respondent is to circumvent the order of injunction passed in i. A. 6002/80 in o. S. 1546/80. The respondent had played into hands of the landlord and got the construction of the wall and the eves made with the assistance of court. It is nothing but an abuse of process of the court. The question is whether such an injustice meted out to the petitioner would be allowed to be perpetrated. Though it is contended that after the dismissal of the suit the court becomes functus officio, their lordships of the supreme court in f. A. A. Samd vs. Municipal corporation, ahmedabad held that the court does not becomes functus offieio. It still has the power to undo the injustice done. Following that ratio it must be held that the court does not become functus offieio after the dismissal of the suit. Application can be filed for passing appropriate orders. It is true that the petitioner invoked sec. 151 c. P. C wrong quotation of a provision of law does not take away the jurisdiction of the court so long as the power is traceable. It is the therefore held that restitution under sec. 144 c. P. C. Could be ordered. Even otherwise it is eminently a fit case to exercise inherent powers. It is true that the exercise of power under section 151 c. Pc. Is discretionary. The lower court having exercised the discretion dismissed the application. Normally, this court, in exercise of revisional power under sec. 115 cpc. Would be slow to interfere with the discretionary order of the lower court. The power under section 151 c. P. C. Has by a court is only a reflection of the power inherently possessed by the court to meet the ends of the justice or to prevent the abuss of process of the court. The faith of the people is the saviour and succour for the sustenance of the rule of law and say weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of the court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the court to erase the stains at the earliest. To meet such a situation, the need to exercise inherent power under sec. 151 c. P. C. Stems from and its breadth is co - extensive with the necessity and it should be exercised and undo the resultant injury the question thereby crops up is whether this court while exercising the revisional power under section 115 c. P. C. Would undo the mischief done by the respondent?

(8) No doubt, in govinda vs, muniswamy venkataramana rao, j. Held that the proper remedy of the defendants aggrieved by the said action of the plaintiffs was by a suit and not by way of restitution in as much as the defendants had not lost their possession because of any action taken by the plaintiffs under the decree, but by an act of violence on the plaintiff's pan, independent of it and inconsistent with the case on which it was obtained. In that case, the pla'ntiffs sued for possession against the defendants and taking advantage of the order of injunction granted to them, they unlawfully took possession of such property to which they were nut entitled. The facts in that case are distinguishable from the facts on hand. Yet another decision relied on by the learned counsel is one of this court reported in s krishna reddy vs. P. Kota reddy wherein my learned brother, raghuvir, j. Has held that dispossession of the defendant by virtue of an injunction d. Cree which was set aside on appeal, the restitution for possession would not be made under section 144 c. P. C. But however, the learned judge has held that as a rule of practice in india, restitution is ordered on the principle that acts of the court should not injure any of the suitors. On the facts in that case, restitution was not ordered. It is already held that the respondent filed the suit on the footing that he is a tenant and obtained an interim injunction restraining the petitioner from interfering with his possession. Simultaneously he also obtained positive order appointing an advocate as commissioner to be present at the work spot to complete the construction of the offending wall and the eves and the court has given such an assistance.

(9) Sri harinath contends that the commissioner merely supervised the construction. The material consideration would be what is the effect of the order of the court but not the technicality of the language used. The effect of the order is practically disabling the petitioner to interdict with the conscruction of the wall and the eves, contrary to injunction issued in another suit or to offer any resistance by securing the presence of the officer of the court. Taereby he completed the construction. Subsequently he cooled off the sinister action by getting the suit dragged on to a considerable time ; ascribed an apparent look of infructuousness and got it dismissed. The circumstances are telling ones and would demonstrate that the landlord abused tne process of the court and circumvented the effect of the order of injunction issued in i. A. 6002/80 when the injustice is staring on the record abuse of the process is manifest, the question is whether this court has to keep its hands back and be oblivious to obvious abuse of judicial process and say that revisional power would merely stop at the gate way of discretionary domain of the courts below and be a passive spectator gasping to enter into and allow the abuse to subsist thereby relegate the party injured to a tardeous separate suit, in my view it must be other way about. The facts of this case poignantly portraty the pugnacious effect on the efficacy of judicial process. Refusal to redress the injury tacitly feeds otherwise curbable tendency to abuse the process of the court. It is incumbent arid may it is indeed the duty of the court to undo the injustice. The lower court did not consider the case from this perspective and thereby abdicated its jurisdiction on the lame excuse of the latches. It must therefore he held that the lower court has committed error of jurisdiction and it is a fit case that this court should interfere to undo the mischief done, lest the people would lose their faith in courts and the efficacy of law.

(10) Accordingly, the revision petition is allowed with costs throughout and the order of the lower court is set aside and the i. A. Stands allowed. C. R. P. Allowed,