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."
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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."
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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
