Telangana High Court
Surakarapu Yadagiri Goud vs Gandikota Ram Babu on 6 March, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CIVIL REVISION PETITION No.3672 of 2023
O R D E R:
This Civil Revision Petition is filed by the petitioner - respondent -
defendant aggrieved by the order dated 13.10.2023 passed in I.A.No.11 of 2023 in
I.A.No.129 of 2022 in O.S.No.554 of 2022 on the file of the Special Judicial
Magistrate of First Class (for Prohibition and Excise Offences) - cum - II
Additional Junior Civil Judge at Nalgonda.
2. The parties are hereinafter referred as plaintiff and defendant before the trial
court.
3. The respondent - plaintiff filed a suit for declaration of title and perpetual
injunction in respect of the suit schedule property and filed I.A.No.129 of 2022
seeking ad interim injunction.
4. The learned Junior Civil Judge granted Interim Orders on 21.06.2022 till the
appearance of the parties directing the defendant, his agents not to interfere with
the possession of the plaintiff over the schedule property. The respondent -
plaintiff also filed I.A.No.11 of 2023 seeking police protection Thereafter
summons were served on the defendant along with notices in I.A.No.129 of 2022
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and I.A.No.11 of 2023 and vakalath was filed for the defendant on 18.08.2023.
The matter was posted for written statement of the defendant on 20.09.2023. As
no written statement was filed on the said date, the matter was posted to
13.10.2023. On 13.10.2023 I.A.No.11 of 2023 in I.A.No.129 of 2022 was allowed
and the matter was posted for the ex-parte evidence.
5. Aggrieved by the said order in allowing I.A.No.11 of 2023 granting police
protection in I.A.No.129 of 2022, the defendant preferred this Revision. This
Court granted interim suspension of the order in I.A.No.1 of 2023 in the above
Civil Revision Petition on 08.12.2023.
6. Heard Sri M.A.K.Mukheed, the learned counsel for the revision petitiioner -
defendant and Sri G.Satyanarayana Yadav, the learned counsel for the respondent -
plaintiff.
7. Learned counsel for the petitioner - defendant submitted that notice was
served on the petitioner - defendant on 27.07.2023 and thereafter vakalath was
filed by the counsel for the defendant on 18.08.2023. Subsequently, written
statement and counter were also filed. On 20.09.2023, when the matter was posted
for written statement of the defendant, the learned Presiding Officer was on leave.
As such, the matter was posted to 13.10.2023 for ex-parte evidence. In fact, no ex-
parte order was passed by the Court at any point of time. There was no chance to
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pass ex-parte order, as the counsel for the defendant appeared and filed written
statement and counter. On 13.10.2023, the learned Principal Junior Civil Judge
had passed order of police protection in favor of the plaintiff. In fact, no petition
was served to the counsel for the petitioner - defendant, but the Court had given a
finding that 'no counter was filed, as such, the same was treated as nil.' Another
finding given by the Court was that on 21.06.2022, I.A.No.129 of 2022 was
allowed. In fact, as per A-Diary on that day, the docket order was for issue of
summons to the defendant (the petitioner herein). The initial injunction order was
granted till the appearance of the defendant only. Once the defendant appeared
before the Court, the order of injunction could not be extended, but the Court
simply passed the police protection order without any injunction order. The
plaintiff with the help of Police was trying to dispossess the defendant. It was well
established that police protection could not be granted on an ex-parte injunction
order. Moreover, there was no injunction order when the police protection was
granted. The same was also granted without giving an opportunity to the revision
petitioner - defendant and prayed to allow the Civil Revision Petition by setting
aside the order dated 13.10.2023 passed in I.A.No.11 of 2023 in I.A.No.129 of
2022 in O.S.No.554 of 2022 on the file of the Special Judicial Magistrate of First
Class (for Prohibition and Excise Offences) - cum - II Additional Junior Civil
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Judge at Nalgonda. He also relied upon the judgment of this Court in
M/s.Senthan Properties v. M/s.S.V.S. Infra Service Private Limited 1.
8. Learned counsel for the respondent - plaintiff on the other hand contended
that as the defendant was interfering with the subject property, the plaintiff was
constrained to approach the trial court by filing the suit for declaration of title and
perpetual injunction and also filed I.A.No.129 of 2022 and on the same day, the
trial court granted ad interim injunction in favor of the plaintiff restraining the
defendant from interfering with the peaceful possession and enjoyment over the
schedule property. After granting interim orders in I.A.No.129 of 2022, summons
and notices were served in both I.A.s. as well as in O.S on the defendant, but the
defendant failed to appear in the matter, but instead continuing disturbing his
peaceful possession. Though the matter was reported to the Police, the Police
advised the plaintiff to get police protection order to provide aid. Accordingly, the
plaintiff filed I.A.No.11 of 2023 and notice was served on the defendant and the
counsel appeared and filed vakalath on 18.08.2023. Thereafter, the counsel for the
defendant neither appeared nor filed counter in the said petition. Hence, their
counter was treated as nil, and the trial court granted police aid to the plaintiff. The
alleged written statement stated to have been filed by the defendant on 16.11.2023
Civil Revision Petition No.1173 of 2020 passed on 21.01.2021
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was only after granting of police protection order dated 13.10.2023 and the same
was filed for the purpose of preferring this Civil Revision Petition, but not filed in
the trial court till date and for the said reason, the certified copy of the written
statement was not filed.
8.1. He further contended that the police protection order dated 13.10.2023 was
granted after giving ample opportunity to the defendant. Therefore, it was not an
ex-parte order. The court below had applied judicial mind while passing the
impugned police protection order and passed a reasoned and speaking order in
I.A.No.11 of 2023 by following due process of law. As such, the same was
sustainable and prayed to dismiss the Civil Revision Petition.
8.2. Learned counsel for the respondent - plaintiff relied upon the judgments of
the Karnataka High Court in Smt.Karisiddamma and Others v. Smt.Sanna
Kenchamma 2 in Writ Petition No.17106 of 2009 dated 29.07.2009 and of this
Court in Talla Srinivas Goud v Ghanapuram Srinivas Reddy 3.
9. Perused the record.
10. The record would disclose that an ex-parte ad interim injunction order was
granted by the learned Junior Civil Judge, Nalgonda in I.A.No.129 of 2022 on
ILR 2010 KAR 1197
2022 (1) ALD 501 (TS)
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21.06.2022 restraining the defendant from interfering with the possession and
enjoyment of the plaintiff over the schedule property till the appearance of the
defendant and the defendant is directed to appear on 07.07.2022. The defendant
made his appearance through his counsel on 18.08.2023. But, in the meanwhile,
I.A.No.11 of 2023 is also filed by the plaintiff seeking police protection.
11. The contention of the learned counsel for the plaintiff was that notices in
I.A.No.11 of 2023 and in I.A.No.129 of 2022 were also served on the counsel for
the defendant. The learned counsel for the defendant denied service of notice in
I.A.11 of 2023 to him in the police protection petition. On 18.08.2023, the matter
was posted for the written statement of the defendant and adjourned to 20.09.2023.
The docket would disclose that on that day, the Presiding Officer was on leave and
the case was posted to 13.10.2023 for the written statement of the defendant. The
docket order dated 13.10.2023 would disclose that "the plaintiff was absent,
represented by counsel. For ex-parte evidence. I.A.No.11 of 2023 in I.A.No.129
of 2022 allowed. Call on 16.11.2023." If the plaintiff is absent, the matter cannot
be posted for ex-parte evidence. The order is not clear as to who is represented by
counsel. I.A.No.11 of 2023 in I.A.No.129 of 2022 was also allowed on the same
day and the matter was posted for the ex-parte evidence to 16.11.2023. As such,
no orders were passed in I.A.No.129 of 2022 even ex-parte. Without any orders in
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existence in I.A.No.129 of 2022, no police protection orders ought to have been
passed by the learned Junior Civil Judge, as the interim injunction orders were in
existence only till the appearance of the defendant.
12. This Court in M/s.Senthan Properties v. M/s.S.V.S.Infra Services Private
Limited (cited supra) by relying upon the ratio of judgments in Kasturi Venkata
Subbaiah and Others v. Veerapareddy Yasodamma 4, Gangupanthula Ranga
Rao v. Bathula Laxmaiah and Others 5 , Vanga Buchi Reddy v. Vanga
Madhusudhan Reddy 6, held that:
"8. It is an admitted fact that the impugned order is
an ad interim order. It is also an admitted fact that
the petitioner herein had filed Civil Miscellaneous
Appeal before this Court challenging the ad interim
order passed by the Court below in I.A.No.1671 of
2019. Of course, the said Civil Miscellaneous
Appeal was dismissed as withdrawn. Unless and
until the interim injunction is made absolute and
the rights of the parties are crystallized, the
Court cannot normally order police aid petition
because the party in whose favour the ad interim
order was granted may take advantage of the
situation and under the guise of the said order
that party may cause undue hardship to the
other party. Such is the ratio decidendi in all the
cases cited supra. If the petitioner herein against
whom an order of ex parte injunction is granted, had
violated the order of injunction, the first respondent
can take recourse to file a petition under Rule 2-A
of Order 39 CPC, which lays down a punitive
measure for the purpose of compelling a party to
2008 (6) ALD 90
2018 (6) ALT 778 (S.B)
2004 (4) ALT 267 (S.B.)
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comply with the order of injunction. But the Court
cannot straight away order police aid petition
without disposing of the interim injunction petition
because granting police aid to implement an ex
parte injunction may sometimes cause prejudice and
hardship to the opposite party, without hearing
whom an injunction was granted against him. In
that view of the matter, I am of the view that the
Court below was in error in passing orders on the
petition for police aid, without disposing of
I.A.No.1671 of 2019."
13. Thus, the trial court without even making the interim injunction order
absolute in I.A.No.129 of 2022 granted police aid to the plaintiff. As such, the said
order passed by the Court granting police aid to the plaintiff is irregular and is not
in accordance with the procedure established under law. The judgments relied by
the learned counsel for the respondent - plaintiff are on the aspect whether police
aid could be granted or not for implementing the injunction order. In both the said
cases, the temporary injunction order was made absolute after hearing both the
parties. As such, it was observed that there were no legal impediments in granting
police assistance for enforcing the temporary injunction order, depending upon the
gravity of the situation. But, in the present case, the ex-parte ad interim injunction
order was not made absolute and the rights of the parties are not crystallized. As
such, the above judgments are not applicable to the facts of the present case.
14. However, as the defendant made his appearance and also filed his written
statement though it was contented by the learned counsel for the plaintiff that the
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same was not part of the record before the trial court, it is considered fit to direct
the petitioner - defendant to file his counter in I.A.No.129 of 2022 within a period
of one week and further to direct the learned Junior Civil Judge to pass orders on
merits in I.A.No.129 of 2022 within a period of 30 days and on such disposal of
the petition on merits, can entertain the police aid protection if necessary.
15. In the result, the Civil Revision Petition is allowed setting aside the orders in
I.A.No.11 of 2023 in I.A.No.129 of 2022 in O.S.No.554 of 2022 on the file of the
Special Judicial Magistrate of First Class (for Prohibition and Excise Offences) -
cum - II Additional Junior Civil Judge at Nalgonda with the above directions.
No order as to costs.
As a sequel, miscellaneous applications pending in this petition, if any shall
stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 06th March, 2024
Nsk.
