The suit in O.S. No. 285 of 2009 was filed by the revision petitioners before the Sub Court, Madurai. In that suit, the revision petitioner has prayed for removal of the defendants 1 to 2 from the Trusteeship of the endowment for lighting the Durga of Hazarat Mokayat Shah, situated in Madurai.
2. Alongwith the suit, the revision petitioner has also filed a petition in I.A. 340 of 2009 for ad-interim injunction and in that injunction application, notice was ordered by the Sub Court, on 4.6.2009, and the case was adjourned to 12.6.2009, as notice has not yet returned and it was adjourned to 26.6.2009. At that stage, this revision is filed by the plaintiff in O.S. No.285 of 2009 under
Article 227 of the Constitution of India, calling for the records in I.A. No. 340 of 2009 on the file of the Sub Court, Madurai, to set aside the order, dated 26.6.2009.
3. Mr.G.Prabhu Rajadurai, learned counsel for the petitioner submitted that the defendants 1 and 2 are not entitled to alienate the trust properties and they have alienated some of the properties to defendants 3 and 4. If the defendants 1, 2 and 3 were allowed to alienate all the trust properties, it would be difficult to maintain the trust and therefore they filed the petition and if the defendants 1 and 2 are not restrained by an order of injunction the trust would be affected and therefore, application was filed for temporary injunction and despite the prima facie case being brought out, the learned Sub Judge instead of passing an order of injunction ordered notice and that is the reason for filing the revision.
4. It is submitted by the learned counsel for the petitioner that when the Court has got power to interfere in matters where ad-interim injunction was granted without proper reasons, the Court has got similar power to interfere when the lower Court refused to grant injunction by proper exercise of power. The lower Court failed to exercise the jurisdiction vested on it by not granting the injunction and therefore, this court has got power to interfere and grant the order.
5. When the lower Court has failed to exercise the jurisdiction or assumed the jurisdiction in excess of the power or when the Court ordered notice in an application for injunction, it cannot be stated that the Court has failed to exercise the jurisdiction. There is a distinction between failure to exercise the jurisdiction and failure to exercise the discretionary power. When the Court ordered notice in an injunction application, without granting ad-interim injunction, it cannot be stated that the Court has failed to exercise its jurisdiction.
6. The Court has passed an order directing notice to the other side only after being satisfied that it is not the case for granting ad-interim temporary injunction without giving notice to the other side. The Court has exercised the jurisdiction and passed the order of issuing notice to other side and hence it cannot be stated that the Court has failed to exercise the jurisdiction and hence on that ground this order could not be interfered with. Therefore, the revision petition filed under
Article 227 of the Constitution of India is liable to be dismissed and it is dismissed.
7. Nevertheless, in this revision the respondent entered appearance through counsel. It is represented by Mr. G. Prabhu Rajadurai that if the defendants were permitted to sell the property it would be difficult to administer the trust and the whole purpose of the suit will be defeated. The learned counsel further submitted that the defendants are purposely evading service and meanwhile they would sell the entire properties.
8. According to me, the sale made after filing of the suit is covered by the doctrine of lispendens. Further, the learned counsel for the respondents 1 and 2 Mr. S. Parthasarathi submitted that he had also instructed his clients to enter appearance through counsel in the lower Court. Mr. M.V. Venkataseshan learned counsel for the respondents 3 and 4 also submitted that he had also given such instructions to the respondents 3 and 4 to appear before Court when the case is taken upon for enquiry by the lower Court. Therefore, having regard to the undertaking given by the counsels appearing for respondents, I hereby direct the lower Court to dispose of the I.A. No. 340 of 2009 in O.S. No. 285 of 2009, within a period of fifteen days from the date of receipt of a copy of this order. The learned counsels for the respondents are directed to give suitable instructions to the parties to engage the counsels and co-operate with the lower Court in disposing of the application in I.A. No 340 of 2008, within the period stated above.
9. With the above observation, this petition is disposed of. No costs. Consequently, connected M.Ps are closed.
Sd/-
To The Subordinate Judge, Madurai.