MAHBOOB ALI KHAN AFSAR Vs. NAJEEBUNNISA

JUDGEMENT

(1.) THE petitioner/defendant filed the present civil revision petition being aggrieved of the order made in LA. No. 124/2007 in O. S. No. 373/04 on the file of dc Additional Senior Civil Judge, City Civil court, Hyderabad. The said application was filed by the petitioner under Section 144 of the Code of Civil Procedure (hereinafter in short referred to as Code for the purpose of convenience) to direct the Bailiff to re-deliver possession of flat bearing No. 407, 3rd floor, Wan Residency, bearing Municipal no. 11-5454/1 at Red Hills, Hyderabad. The learned DC Additional Senior Civil Judge, city Civil Court, Hyderabad in the light of the respective stands taken by the parties having framed the Point for consideration at para 8 recorded reasons and came to the conclusion that the relief prayed for by the petitioner cannot be granted and ultimately dismissed the application as premature without costs. Aggrieved by the same, the present civil revision petition had been preferred.

(2.) SRI Rajender Deshmukh, the learned Counsel representing the revision petitioner had explained the historical background of the litigation, the respective stands taken by the parties and the nature of the order which had been made by the learned DC Additional Senior Civil Judge, city Civil Court, Hyderabad and also had further drawn the attention of this Court to the portions of the order made by this court in C. R. P. No. 6659/2006 and would maintain that this is just a clear abuse of process of Court having obtained a decree under the circumstances which had been already specified in the application to set aside ex parte decree and inasmuch as the said decree was set aside and being unsuccessful the respondents thought of defeating the rights of the petitioner/defendant and had inducted a third party into possession of the subject-matter. The learned Counsel also would maintain that it is no doubt true that the said third party instituted a suit not to disturb the possession except in accordance with law and obtained an order of status quo impleading the present petitioner also as a party. But however, inasmuch as the petitioner is requesting for restitution in the light of the fact that by virtue of an ex parte decree by process of court the petitioner had been dispossessed and in the light of the clear findings recorded even by this Court in C. R. P. No. 6659/2006 it is clear that the ex parte decree was obtained under peculiar circumstances and the same was set aside. When that being so, in the interest of justice, status quo ante to be restored i. e. , the petitioner/defendant to be inducted into possession and the parties may be permitted to contest the litigation further continuing the said status quo ante as it existed as on the date of institution of the suit. The Counsel would maintain that this would be just and proper in the facts and circumstances of the present case. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.

(3.) ON the contrary, Sri Mir Masud khan, the learned Counsel representing the 2nd respondent would maintain that as can be seen from the factual controversy there are several disputed questions and controversial questions to be decided between the parties. The learned Counsel also had taken this Court through the respective stands taken by the parties and would maintain that these questions are to be decided while deciding the main suit. The learned Counsel while further elaborating his submissions would maintain that it is not as though there was any restraint order prohibiting the real owner from inducting a third party when the third party was inducted into possession. When lawfully such party had been inducted into possession and when such party, a statutory tenant, approached the Court, instituted the suit and obtained interim order, in the absence of such party it would not be just and proper to order restitution. Even otherwise, the learned counsel would maintain that it is not as though without following due process, the possession had been taken. May be that the ex parte decree might have been set aside on the same ground, the improper service of notice or otherwise. But however, since several merits and demerits concerned with the main suit may have to be gone into at the appropriate stage, it would not be just and proper to order restitution under section 144 of the Code at this stage. The counsel also would maintain that in the light of the facts and circumstances, instead of disturbing the status quo it would be just and proper to issue suitable directions for the early disposal of the suit itself.