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Y. Lakshmaiah Vs. Esso Eastern Inc. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petns. No. 1504, 1505 and 1506 of 1972
Judge
Reported inAIR1974AP32
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 32(1)
AppellantY. Lakshmaiah
RespondentEsso Eastern Inc. and ors.
Excerpt:
.....alleged that no relief sought for under order 21 rule 32 (1) in case of perpetual injunction - no decree passed for mandatory injunction in suit in view of fact that no relief sought under order 21 rule 32 (1) in case of perpetual or prohibitory injunctions - not competent for executing court to substitute mandatory injunction of suitable character for prohibitory injunction - held, mandatory injunction cancelled. - - 4. the cause of action is mentioned in the plaint like this :cause of action for the suit arose on 22-10-1970 when the defendants and their men attempted to trespass upon the plaint schedule property and interfere with the plaintiff's peaseful possession thereby meddling with the costly equipment thereon and subsequently when they are declaring that they would..........by the decree and therefore the order of the lower court is without jurisdiction . (2) the decree passed in o. s. 282 of 1970 is only for the perpetual injunction or prohibitory injunction, which cannot be executed in the manner suggested by the plaintiff in these three petitions. (3) the order of the lower court appointing commissioner ex parte was bad without jurisdiction. 15. before i deal with the above points, it is better to note the allegations in the affidavit filed in support of these petitions. it was stated therein that there is an express direction in the judgment that the defendant should be directed to restore the plaintiff's equipment and machinery in its original place and the court granted a mandatory injection too, that the plaintiff is entitled to carry on its.....
Judgment:

1. Third defendant in the suit, is the petitioner in all these revision petitions. It is necessary, to state a few facts in order to appreciate the points arising in these three revisions.

2. First respondent in these Civil Revision Petitions filed O. S. 282 of 1970 on the file of the Subordinate Judge's Court. Vijayawada, originally against respondents 2 and 3 herein, for a permanent injunction restraining the first respondent, her men, employees nominees and supporters from interfering with the oil business of the plaintiff and also with the possession and enjoyment of the plaintiff in the plaint schedule property and for costs.

3. As per allegations in the plaint, the previous lease in favour of the plaintiff granted by smt. Lakshmi Durgamba expired by 28-1-1969, that the defendants became purchasers from the original lessor in 1963, that on account of some negotiation the plaintiff was permitted to continue as the lessee with an offer to renew the lease in their favour for a further period of five years commencing from 1-3-1970, that the plaintiff also sent some amount towards lease amount but to the surprise of the plaintiff they received a registered notice dated 1-10-1970 from the defendants' counsel asking them to vacate the suit premises, that the plaintiff gave a reply on 5-10-1970 denying the allegations in that notice for which there was a subsequent notice by the defendants 1 and 2 dated 16-10-1970 repeating their demand for vacating the suit premises, that the conduct of the parties clearly shows that the first defendant has been acting on behalf of the owners and the second defendant also was confirming the agreement through out, that the defendants 1 and 2 ultimately should see that a formal lease deed be executed by all the three owners that the second defendant has been the plaintiff's dealer since several years, that the defendants have no right to interfere with the plaintiff's possession of the suit premises or with the fixtures and the equipment therein, as they are bound by the agreement entered into on 6-7-1970 that with an ulterior motive the defendants have taken into their heads to cause trouble to the plaintiff and they are taking the law in their own hands and attempting to dismantle and remove the costly fixtures and equipment by force and high handely, that on 22-10-1970 the second dependent at the instigation of the first dependent along with some other unruly elements came to the suit schedule premises and attempted to dismantle the equipment shown in list filed along with the plaint, in spite of the protests of the plaintiff's representative, that the plaintiff's representatives were pushed aside when he attempted to prevent their trespass into the plaint schedule property and infact they overpowered him and meddled with the fixtures and equipment by using force, that they are now attempting to install some other equipment in the suit site by force, that the plaintiff had given a report to the police the previous day, but the defendants are declaring that they would forcibly take possession of the suit schedule premises and dismantle everything by force etc.

4. The cause of action is mentioned in the plaint like this :

'Cause of action for the suit arose on 22-10-1970 when the defendants and their men attempted to trespass upon the plaint schedule property and interfere with the plaintiff's peaseful possession thereby meddling with the costly equipment thereon and subsequently when they are declaring that they would desmantle and destroy the fixtures and equipment at Vijayawada where the plaint schedule properties situate and the defendants reside.'

The prayer portion is worded as follows :

'The plaintiff therefore prays that the honourable court may be pleased to grant a decree in favour of the plaintiff against the defendants:

(a) for a permanent injunction restraining the defendants and their men and agents and representatives from interfering with the plaint schedule property and the fixtures and equipment thereon and all acts, things on the plaint schedule property to enable the plaintiff to carry on their business and pass such other orders as are deemed just and necessary.'

5. In the schedule filed along with the plaint admeasuring about 680 yards, within specified boundaries alone was shown as suit schedule.

6. The suit was originally contested by defendants 1 and 2. They denied the plaint claim that the plaintiff was in possession and the claim for any injunction on that basis. The suit was instituted on 24-1-1970. There was an order of the court to keep the status quo, passed on 24-10-1970 and an advocate commissioner was appointed. The commissioner filed his report starting in effect that 3rd defendant was in possession. It appears interim injunction was granted against defendants 1 and 2 on 4-12-1970. They carried the matter in appeal in C. M. A. No. 31 of 1970 which was dismissed by the District Court. Against the C. R. P. No. 811 of 1971 has preferred by them.

7. As per order on I. A. 2805 of 1971, dated 7-12-1971 in the suit the third defendant was added as a party. As per the order on I. A. 434/72 dated 23-2-1972 in I. A. 1756 of 1971, the 3rd defendant was added as a party of that I. A. The said I. A. 1756 of 1971 was filed on 22-7-1972 by the plaintiffs under O. 26 Rule 9. C. P. C. praying for appointment of a Commissioner to reinstal the plaintiff's equipment on the suit site with police aid.

8. The third defendant contested the suit denying the plaint allegations, and stating that the took possession of the suit schedule property on 22-10-1970 and from 23-10-1970 he alone was carrying on his own business as I. O. C. dealer to the knowledge of the plaintiff, that the plaintiff filed the suit without making him as a party, and the plaintiff was fully conscious of the fact that he alone was in possession of the suit property on the date of the suit. He further says that for more than once the plaintiff attempted to dispossess the third defendant from the possession of the property after 23-10-1970 that he plaintiff appears to have given a report to the police on 22-10-1970 complaining that possession was taken by the third defendant, that it was not stated in the report that the plaintiff was not entitled to any injunction at the time of filing of the suit against this defendant. Without impleading the real party the plaintiff appears to have obtained injunction by exaggerating its case and secured the sympathy of the court, at the time of filing of the suit. He therefore, asked for the dismissal of the suit.

9. On 15-3-1971 the third defendant filed another suit O. S. 94 of 1971 on the file of the Subordinate restraining the plaintiff in O. S. 282 of 1970 from interfering with his possession. Both the suits 94 of 1971 and 282 of 1970 were tried together along with I. A. 1756 of 1971 and they were disposed of by a common judgment dated 24-6-1972. The lower court passed a decree as prayed lower court passed a decree as prayed for in O. S. 282 of 1970 and dismissed O. S. No. 94 of 1971 with costs. The lower court also held that the plaintiff was entitled to a mandatory injunction prayed for in I. A. No. 1756 of 1971.

10. After this decree was passed, the plaintiff in O. S. 282 of 1970 filed I. A. No. 1021 of 1972 on 31-7-1972 under Section 151, Order 21, Rule 32. C. P. C. praying for giving police aid to the plaintiff and its officers and the Commissioner in executing the above decree and to help the plaintiff and its officers and the Commissioner in re-installing plaintiff's equipment on the plaintiff schedule site and also to order arrest of the defendants, their agents, men or representatives by the police or other officer of the court if they obstruct the plaintiff and its officers in re-installing their equipment and prevent them from carrying on plaintiff's business. He also filed E. A. 1020 of 1972 under Section 151, Order 21, Rule 32 and Order 26, Rule 6, C.P.C. praying for giving protection to the plaintiff and its officers in exercising their rights in executing the above decree by appointing a Commissioner and giving necessary police aid to the Commissioner to help the plaintiff and the officers in re-installing the plaintiff's equipment on the plaint schedule site and to note the obstructions of the defendants and their agents and men etc. in their doing so and also prevent their obstruction and interference by the police and also to order arrest of the defendants, their agents, men or representatives by the police or other officer of the Court, if they obstruct the plaintiff and its officers in re-installing their equipment and prevent them from carrying on plaintiff's business and pass such other orders as are deemed just and necessary in the circumstances of the case. This petition was also filed on 31-7-1972. The plaintiffs also filed E. P. 225 of 1972 in O. S 282 of 1970 under Order 21, Rule 32 and under Order 26, Rule 9, C.P.C. to take action against the defendants if they action the defendants id they obstruct the decree-holder's equipment on the decree schedule property.

11. On 31-7-1972 the lower Court passed an ex parte order on E. A. 1020 of 1972 as follows :--

'31-7-1972 Sri P. Anjaneyulu has been appointed Commissioner to help the decree-holder in executing the decree as prayed for. His fee is fixed Rs. 150/- to be paid direct. The final order passed in C. R. P. 1261 of 1972 dated 12-7-1972 has been perused. For report 5-8-1972.'

12. On I. A. 1021 of 1972 also the following order was passed on 31-7-1972 :--

'31-7-1972 the Commissioner can approach the court if necessary when he is not allowed to execute the decree by the judgment-debtor'

On E. P. 225 of 1972 the following order was passed :

'31-7-1972 : Commissioner has been appointed Call on 5-8-72.'

13. The third defendant has filed C. R. P. No. 1504 of 1972 against the order in E. A. 1020 of 1972, C. R. P. 1505 of 1972 against the order on I. A. 1021 of 1972, and C. R. P. 1506 of 1972 against the order on E. P. 225 of 1972 as aforesaid :

14. Sri Y. Suryanarayana the learned counsel appearing for the third defendant revision petitioner has very strenuously contended that the orders of the lower Court in the above I. A., E. A. and E. P. are without jurisdiction for the following reasons.

(1) There is the decree giving mandatory injunction to re-install the equipment if any, and therefore it is not open to the lower court to appoint a Commissioner or give police aid to it as it is not warranted by the decree and therefore the order of the lower court is without jurisdiction .

(2) the decree passed in O. S. 282 of 1970 is only for the perpetual injunction or prohibitory injunction, which cannot be executed in the manner suggested by the plaintiff in these three petitions.

(3) the order of the lower court appointing Commissioner ex parte was bad without jurisdiction.

15. Before I deal with the above points, it is better to note the allegations in the affidavit filed in support of these petitions. It was stated therein that there is an express direction in the judgment that the defendant should be directed to restore the plaintiff's equipment and machinery in its original place and the court granted a mandatory injection too, that the plaintiff is entitled to carry on its business peacefully on the suit schedule site by re-installing its equipment and the defendants are not entitled to obstruct the plaintiff in so doing by virtue of the decree and judgment in the suit. The defendants have removed on 17-7-1972 the pump and other equipment of the I. O. C. fixed by them earlier on the suit site, that the defendants are wilfully disobeying the orders and violating the decree and judgment in the above suit and the plaintiffs are afraid of not only harm and danger to their equipment and machinery which they are going to re-install but also to their lives. Defendants have not handed over the plaintiff's valuable equipment to them which they have removed from the suit site in the first instance. The plaintiff has therefore made arrangements to re-install has therefore made arrangements to re-install another pump and other equipment on the suit site etc.

16. It has been contended by Sri Y. Suryanarayana, learned counsel appearing for the revision petitioner that the third defendant took possession of the property as early as on 22-10-1970 that as per Ex. B-7, filed in the case, the underground storage tanks and also pumps from which petrol and diesel were sold, have been removed even on 22-10-1970 that as per Ex. B-15, the plaintiff's men were not even allowed into the site, that as per Ex. B-16, that the new pumps and tanks of the I. O. C. were installed after sending out the plaintiff's people and removing their pumps and tanks and that the third defendant has taken possession of the premises, completed installation of their apparatus and commenced sales of their oil from 23-10-1970 that the lower court has not considered properly all these documents filed on his behalf, that the findings of the lower court itself shows that a portion of the site has been encroached upon by the third defendant by 23-10-1970 and therefore that the findings given by the lower court that the plaintiff is in possession is not sustainable and that he has filed an appeal against that decision in A. S. 378 of 1972, which is now pending and the plaintiffs are not therefore, entitled, in the face of these facts, to any relief i.e., for re-installation of their equipment when there is no mandatory injunction to that effect. He has also relied upon the provisions of Order 21, Rule 32 (1) and submitted that in the case of perpetual injunction the court cannot grant a relief prayed for by the plaintiff. The only relief, according to him, which the plaintiffs are entitled to civil prison or attachment of the property of the defendant if he has obeyed the injunction if any and not a relief as contemplated under Order 21, Rule 32 (5), C. P. C. for doing of an act required to be done by the decree as contemplated thereunder. He says that in the absence of a decree for mandatory injunction, the plainitffs are not entitled to these reliefs. He also placed reliance upon certain decisions to show that the reliefs ought not to have been granted by the lower court without notice to him and it is opposed to all principles of natural justice.

17. Against the order on I. A. 1756 of 1971 the third defendant filed C. R. P. 1261 in this Court, which was disposed of by my learned brother Mukthadar, J. on 12-7-1972. After considerable arguments in the C. R. P. the learned advocate for the first respondent viz., the plaintiff in O. S. 282 of 1970 undertook not to execute the decretal order passed on I. A. 1756 without prejudice to his right to execute his decree in O. S. 282 of 1970 and if necessary to take steps to get it amended . In view of that undertaking the learned Judge, without entering into a discussion about the merits of the revision dismissed C. R. P. After that order, I am told, that the plaintiff has filed I. A. 2300 of 1972 for amending the decree by incorporating the relief granted in I. A. 1756 of 1971 as part of the decree in O. S. 282 of 1970 and that that petition has also been dismissed by the lower court and a revision has been preferred against that order.

18. It may be seen from the above facts that the decree as it stands today in favour of the plaintiff in O. S. 282 of 1970 is only a decree for perpetual or prohibitory injunction restraining the defendants which reads as under :--

'This court doth order and decree that the defendants and their men and agents and representatives be and hereby are restrained by a permanent injunction from interfering with the plaint schedule property and the fixtures and equipment thereon and all acts, things on the plaint schedule property to enable the plaintiff to carry on their business peacefully without any hindrance and .................'

19. The attempt of the plaintiff to get the decree passed in I. A. 1756 of 1971 made a part of the decree in O. S. 282 of 1970 has also failed. There is no decree for mandatory injunction to reinstall the equipment on the suit site. Hence the plaintiffs are entitled only the enforcement of the perpetual or prohibitory injunction granted in their favour as per decree in O. S. 282 of 1970. If they are in possession of the property they can maintain that possession with the help of that perpetual injunction. If there is any violation of the perpetual injunction they can certainly take action against the persons meddling with their rights by proceeding under Order 21, Rule 32 (1), C.P.C. Admittedly the plaintiffs have not taken any steps under Order 21, Rule 32 (5), C.P.C. They have asked for the appointment of a Commissioner to help them in re-installing their equipment in the suit site and to note the wrongful obstruction by the defendants. They have also asked for police aid to assist the Commissioner. These things are not warranted by the decree as it stands now. Under the guise of enforcing the perpetual injunction they cannot ask for any reliefs. which are not granted by the decree, I may also in this connection refer to the decision of their Lordships Jaganmohan Reddy, C. J. (as he then was) and Sambasiva Rao, J., of this court in Venkata Subayya v. Veerayya : AIR1969AP92 . Their Lordships have held in the above case as follows :

'Sub-rule (1) would apply both to mandatory as well as prohibitory injunctions. Sub-rule (5) on the language used applied to mandatory injunctions . The word injunction in sub-rule (5) has been qualified by the words ' has not been obeyed' and the rule says that in the event of disobedience of the injunction the court may direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the court .

This could only be a mandatory direction. A prohibitory direction would be to do an act. A mandatory direction is a command to do a positive act. a prohibitory injunction is a negative one restraining him from doing a particular act. The difference between the two is obvious and Rule 32 (5) can only be construed as applying to mandatory injunctions and not to prohibitory injunctions .'

20. Their Lordships have discussed the scope of Section 51, C.P.C., and observed as follows :

'Under Section 51 whether by itself or read with Section 151, C.P.C, a decree cannot be executed in circumstances which give a fresh cause of action to the decree-holder. Section 51(e) cannot enable the court to give a fresh mandatory direction to remove something which was not in existence at the time of the decree .'

The Lordships quoted with approval the following observation of the learned Judge Kumaraiah, J, (as he then was) :--

'When a prohibitory injunction is disobeyed certainly it is not within the competence of the executing court to substitute therefor a mandatory injunction of a suitable character, even under the inherent powers and give effect thereto.'

21. In view of the above decisional it is not competent to the lower court to appoint a Commissioner to do a thing itself . The lower court has invoked to its aid Order 21, Rule 32 (5), C.P.C. in a case where there is o decree for mandatory injunction. To that extent it must be held that the order of the lower court is without jurisdiction. I may also in this connection quote what has been held in ILR 40 All 648 = (AIR 1918 All 152) by their Lordships Pramada Charan Banerji wherein there was a decree declaring the plaintiff and the defendants of the third party entitled to perform the 'singar Arti' ceremony in a certain temple both on ordinary and festive occasions, by permanently restraining the defendants of the first and second parties from obstructing the plaintiff and the defendants third party from performing the duties of the office claimed by them. The application out of which the appeal arose was made by one of the defendants of the third party agents the representatives of the defendants of the first and second parties stating that the respondents are interfering with the performance of the duties appertaining to the office which was claimed in the suit and which was decreed to the plaintiff and the defendants of the third party and praying for the enforcement of the decree through the Superintendent of Police. Muttra to see that the decree-holder may perform the 'Arti' and that the defendants may be directed not to interfere with the performance of those duties. Their, Lordships observed at page 651 as follows :--

'It is lastly urged that the court below was wrong in ordering the Superintendent of Police of Muttra to see that the 'Arti' was performed by Goswami Maksodan Ballabh and that the defendants offered no obstruction. So far as this part of the prayer in the application for execution is concerned we do not think that the court below ought to have granted it. It had no power under the Code of Civil Procedure to order the police to interfere in the matter. There being a decree for a perpetual injunction against the defendants or those whom they represent, it was the duty of the defendants to carry out the injunction, that is to say, to refrain from offering any obstruction to the performance of the office which was decreed to the decree-holder. If they disobeyed the order of the court they were liable to the penalties mentioned in Order XXI, Rule 32 of the Code, but the court could not order the police to see that the decree-holders performed the duties of their office without interference on the part of the defendants. If a breach of the peace was apprehended that was a matter for the Magistrate and the police and not for the civil court, which directs the Superintendent of Police to order the Sub-Inspector of Bindraban to have the applicant Maksudan Ballabh perform 'singer Arti' in the temple.

We are also of the opinion that the court had no power to appoint a Commissioner to see that the decree-holder performed without obstruction the duties appertaining to his office. This portion of the lower Court's order, which was passed on a subsequent date should also be set aside. In our opinion, clause (5) of Rule 32 does not authorise the court to make these orders, and provides for a different state of things .'

22. I respectfully follow the principles laid down in the above decision which also applied to the facts of the case.

23. Next taking up the question whether the plaintiff is entitled to, under Order 21, Rule 32 (1), any reliefs -- As already stated, this is not a case in which the plaintiffs are asking the defendants' detention in the civil prison or the attachment of their property for the disobedience of any injunction. It may also be noted in the connection that after 3rd defendant was made a party to suit and I. A. 1756 of 1971, no attempt was made by the plaintiffs to obtain a temporary injunction against the third defendant. The decree passed in the suit as already stated, does not contain any mandatory injunction even against the third defendant. The decree is only perpetual or prohibitory injunction. In such a case the only reliefs, to which the plaintiff is entitled is the enforcement of that decree and to avail that decree to maintain their possession. I am not here concerned with the merits of the decision of the lower court against which an appeal has been filed. In these revisions I am only concerned with the validity of the orders passed by the lower court appointing a Commissioner in the manner the lower court did. I am not satisfied that this is a case in which the lower court had jurisdiction to pass the orders as it did. In my opinion the order are entirely without jurisdiction and have to be set aside.

24. It has been strenuously urged by Mr. Babul Reddy, appearing on behalf of the decree-holder that this court should not interfere with the discretion of any orders of the lower court especially when the discretion has been exercised to maintain just cause. He placed reliance upon two decisions of the Supreme Court in Chaube Jagdish v. Ganga Pd. : AIR1959SC492 and P. D. Ghougule v. M. H. Jadhav : [1966]1SCR102 and a decision of this court in Jaya Shanker Mills v. Hazi Zakaria. (AIR 1962 Andh Pra 435). IN : AIR1959SC492 it has been held by their Lordships that

'Section 115, C.P.C. empowers the High Court in cases where no appeal lies, to satisfy itself of three matters (a) that the order made by the subordinate court is within the jurisdiction ; (b) that in exercising the jurisdiction the court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Therefore if an erroneous decision of a subordinate court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of the revision by the High Court is made out .'

25. In : [1966]1SCR102 similar proposition has been laid down. But this is a case in which the lower court has assumed jurisdiction which it did not have by passing an order, which is not warranted by the decree. Therefore its assumption of jurisdiction not vested in it in passing of decretal order is bad in law. He also relied upon the decisions in re Subramaniam Chettiar, : AIR1955Mad210 ; Sita Ram v. Kedarnath, : AIR1957All825 ; Dinamani v. Bimbadhar , AIR 1969 Orissa 28, and Bahadur Pradhani v. Gopal Patel, : AIR1964Ori134 and argued that where there is no failure of justice in the orders passed by the lower court no interference by this court is called for. He strenuously contended that the conduct on the part of the third defendant has always been not proper and argued that the way in which the third defendant has taken the law into his hands by encroaching upon the property and therefore any order passed by the court to render justice to the party, who is entitled to a decree in this case, should not be interfered with. As stated above I am not concerned with, in this case, whether the decisions given by the lower court in the suit are correct or not as it is a matter to the appellate Court to consider in the regular appear. I am concerned here with the scope of the order passed in the applications out of which these revisions arise. I am not, therefore satisfied that the above cases come to any help of the plaintiff-respondent.

26. In the view, which I have taken on points 1 and 2, I do not think it is necessary for me to consider the third point, whether the appointment of the Commissioner without notice, is valid or not.

27. In view of the fact that there is no decree for mandatory injunction as such passed in O. S. No. 282 of 1970 in view of the fact that there is no relief asked for under Order 21, Rule 32 (1). C.P.C. in the case of perpetual or Prohibitory injunctions and inasmuch as it is not competent to the executing court to substitute for a prohibitory injunction a mandatory injunction of suitable character, even under the inherent powers and give effect thereof as laid down by a Division Bench of our High Court cited supra, I have got no other alternative except to set aside the orders of the lower court and allow these revision petitions. It is open to the plaintiff-respondent to pursue such of the remedies as are available to them as per the decree passed in their favour.

28. In these circumstances the three revision petitions are allowed with costs in C. R. P. 1504 of 1972. There will be no order as to costs in the other C. R. Ps.

29. Petitions allowed.


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