This Civil Revision Petition is filed by the Defendants to set aside the order dated 6.2.2008 passed in IA.No.889/2007 in OS.No.245/2007 by the learned District Munsif, Madurai.
2. The brief facts are given below:-
The Respondent/Plaintiff has filed the above said suit for declaration that the sale deed dated 18.8.2006 executed by the 1st Defendant in favour of the 2nd Defendant as null and void and for the consequential relief of permanent injunction restraining the Defendants from alienating or encumbering the suit property and interfering with the possession and enjoyment of the suit property. Pending the suit, in IA.NO.581/2007 interim injunction was sought for and when the case was posted on 22.8.2007, the court below had ordered notice and it was finally posted on 10.12.2007 and the petition was closed as the main suit itself had become ripe for trial. Again on 13.12.2007 the Respondent has filed another application in IA.No.889/2007 for the very same relief of interim injunction and pending the said application,the suit itself was posted for trial on 6.2.2008 and an exparte decree was passed on 8.2.2008 since the Defendants did not appear before the court. However, on 8.2.2008 the Petitioners filed an application under Order 9 Rule 13 of CPC to set aside the exparte decree and the same has been allowed on 17.9.2008. While disposing of the suit as exparte, the court below seemed to have allowed the said application in IA.NO.889/2007 stating that "since the suit is decreed, the petition is allowed."
3. According to the Petitioners, taking advantage of the exparte interim order of temporary injunction, the Respondent is trying to dispossess the Petitioners and interfering with their peaceful possession and hence, they seek interference of this court under
Article 227 of the Constitution of India to set aside the exparte order of interim injunction granted by the court below.
4. Mr.V.Raghavachari, the learned counsel for the Petitioners directly drew the attention of this court to the decision of the Honourable Supreme Court rendered in the case of Vareed Jacob Vs. Sosamma Geevargheese and others [2004-SAR-Civil-553], wherein after analysing the various decisions, the Honourable Supreme Court has held that once the dismissal is set aside, the Plaintiff must be restored to the position in which he was situated when the court dismissed the suit for default unless the court expressly or by implication excluded the operation of interlocutory orders during the period between the dismissal of the suit and the restoration. Of course, that is a case arising out of the dismissal of the suit for default, but the same analogy applies even to exparte decree being set aside and the party is relegated to the original position.
5. Per contra, Mr.R.Sundar, the learned counsel for the Respondent would contend that only ancillary orders such as striking out defence which are meant to aid and supplement the ultimate decision arrived at in the main suit would stand revived on the restoration of the suit and orders granting temporary injunction do not aid and supplement the ultimate decision of the suit and as such they cannot said to be ancillary orders and does not automatically stand revived. He relied on the decision of the High Court of Rajasthan rendered in the case of Kanchan Bai Vs. Katsidas and others [AIR-1991-Raj-94].
6. Incidentally, the learned counsel for the Respondent would submit that as against the interlocutory orders of injunction only appeal lies and a mere wrong decision without anything is not enough to attract the jurisdiction of the High Court under
Article 227 of the Constitution of India.
7. Admittedly the court below has passed an order of injunction not on merits that is without assigning any reasons as to whether a prima facie case was made out and in whose favour the balance of convenience was lying and whether the party seeking an order of interim injunction would suffer irreparable loss if injunction is refused. The court below was not justified in granting an order of interim injunction without examining the matter in detail by merely saying that "since the suit is decreed, the petition stand allowed."
8. Applying the same analogy enumerated by the Honourable Supreme Court in the decision cited supra to this case that when an exparte decree is set aside, the Defendants are entitled to be restored to their original position, then ipso are it follows that all the exparte proceedings or interim orders facto also set aside. The effect of an order setting aside an exparte decree is that all the proceedings subsequent to the stage of the Defendant's non appearance no longer bind him. In other words, as the Defendant's non appearance is condoned by the setting aside of the exparte decree consequential interim orders passed against them cannot be utilized by the Plaintiff and the Defendants are relegated back to the stage at which they were absent.
9. In the case of Prahalad Singh Vs. Col.Sukh Dev Singh [AIR-1987- SC-1145], the Honourable Supreme Court made the position very clear that on the exparte decree being set aside, the opposite party/ Defendants would be relegated to the original position. That is a case where exparte decree of eviction based on the ground of default in payment of rent was set aside on the finding that the landlord had agreed to withdraw the petition and receive the rent from the tenant. Thereafter, the landlord continued with the eviction proceedings and eventually an eviction order was passed which was upheld right up to the High Court. The Honourable Supreme Court set aside the eviction order and held that the decision given by a court at an earlier stage of a case is binding at a later stage is well settled though interlocutory judgements are open for adjudication by an Appellate Authority in an appeal against the trial judgement. The argument to withdraw the eviction proceedings stood established by the court in the order setting aside the exparte eviction order and this finding having been not challenged by the landlord it had become binding on the parties.
10. It is no doubt true that as against the exparte order of injunction passed by the lower court, an alternative remedy of appeal is provided to the aggrieved party under Order 43 Rule 1 of CPC. However, in this case, the trial court committed material irregularity in passing an exparte order of interim injunction merely on the ground of passing exparte decree against the Defendants and the said order if allowed to sustain would occasion failure of justice and cause irreparable injury to the petitioners/ Defendants. That apart, once the exparte decree is set aside, the interim order of injunction becomes ineffective and therefore, the Respondent cannot be allowed to take advantage of the said order and availability of an alternative remedy is not a ground on the facts and circumstances of this case to reject the revision filed by the Petitioners under
Article 227 of the Constitution of India.
11. In the result, the impugned order passed by the court below is set aside and this Civil Revision Petition is allowed. No costs. Consequently, the connected MP is closed. It is brought to the notice of this court that the suit itself is ripe for trial. Therefore, to meet the ends of justice, the trial of the suit could be disposed of at an earlier date. Hence, the court below is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order.
Srcm To:
The District Munsif, Madurai.