Allowed

Pathalavath Bhavani v. Thirlika China Yegaiah at Yegeswara Rao

Andhra Pradesh HC23 Mar 2021CRP/103/2017

Case brief

AI extract

What is this about?

The High Court allowed the Civil Revision Petition setting aside the order granting police aid. The Court held that before passing an order adversely affecting party rights alleging violation of injunctions, the trial court was mandated to issue notice and afford a hearing opportunity, as required by audi alteram partem, which was violated in the impugned order.

What did the court decide?

The order dated 30.11.2016 in I.A.No.1071 of 2016 allowing police aid was set aside; petitioner allowed to move appropriate application.

Pathalavath Bhavani Vs Thirlika China… — Civil Procedure and Limitation | Andhra Pradesh HC (2021)

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THE HON”BLE SMT.JUSTICE LALITHA KANNEGANTI

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CIVIL REVISION PETITION NO.103 of 2017

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ORDER :

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This Civil Revision Petition under Article 227 of the Constitution of India is filed assailing the order dated 30.11.2016 in I.A.No.1071 of 2016 O.S.No.292 of 2016 passed by the learned Junior Civil Judge, Macherla, Guntur District, whereby an application under Section 139 of CPC for implementing injunction orders dated 25.10.2016 passed in I.A.No.1021 of 2016 in O.S.No.292 of 2016, was allowed.

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The defendants 1 and 2 before the Court below are the revision petitions.

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The brief facts of the case are that:

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Originally, the plaintiff has filed the above suit against the defendants for permanent injunction alleging that the defendants who have nothing to do with the suit schedule property are interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and obstructed the plaintiffs from constructing room in said property. Along with the said suit the plaintiff had filed I.A.No.1021 of 2016 under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction. The Court below by docket order dated 25.10.2016 had granted adinterim injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property and in the meantime directed the plaintiff to comply with Order XXXIX (3)(a) CPC by 16.11.2016.

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When the defendants disobeyed the said order the plaintiff approached the police but they were advised to approach Civil

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Court. As such, the plaintiff had filed an application seeking Police aid which was allowed by the Court below vide docket order dated 30.11.2016 and while allowing the said application directed the office to issue proceedings for grant of police aid. Aggrieved by the same, the defendants 1 and 2 are before this Court by way of the present revision.

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Heard Sri N.Subba Rao, learned counsel for the petitioners/defendants 1 and 2 and Sri S.Jagadish, learned counsel appearing on behalf of the 1^st respondent and as per cause title respondents 2 and 3 are not necessary parties.

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Learned counsel for the petitioners/defendants 1 and 2 submits that by order dated 25.10.2016 an ad interim injunction was granted while ordering issuance of notice to the defendants and the matter was posted to 16.11.2016 on which date the defendants 1 and 2 entered their appearance. But in the meantime, the plaintiff had filed I.A.No.1071 of 2016 on 11.11.2016 for grant of police aid and the Court below allowed the said application by order dated 30.11.2016 without giving an opportunity to the petitioners herein for filing counter and without appreciating the fact that notices were not served on defendants 3 and 4, which is nothing but exparte order. Hence, the same is liable to be set aside.

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On the other hand learned counsel for the 1^st respondent submits that Order XXXIX Rule 3(a) CPC does not mandate any notice to the defendants as such, the Court below was right in allowing the application without notice to the defendants.

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This Court is unable to accept the contention advanced by the learned counsel for the 1^st respondent and further when the

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notices were ordered in petition filed under Order XXXIX Rules 1 and 2 the Court ought to have waited till service of notice and ought to have passed the order after affording an opportunity to the defendants for filing counter. When the plaintiff’s case is that the defendants have violated the orders of the Court, it is mandatory for the Court to issue notice and hear the other side before passing any order which is adversely offending the rights of the parties. The order is in clear violation of the doctrine of audi alteram partem. In view of the above, the order impugned requires to be set aside.

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Accordingly, this Civil Revision Petition is allowed by setting aside the order dated 30.11.2016 in I.A.No.1071 of 2016 in O.S.No.292 of 2016 on the file of the Court of learned Junior Civil Judge, Macherla, Guntur District and the petitioner is at liberty to move an appropriate application before the Court below. There shall be no order as to costs.

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As a sequel thereto, miscellaneous petitions pending, if any, shall also stand closed.

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LALITHA KANNEGANTI, J

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Dated : 23.03.2021 KA

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THE HON”BLE SMT.JUSTICE LALITHA KANNEGANTI

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Allowed

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CIVIL REVISION PETITION NO.103 of 2017

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23.03.2021

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Pathalavath Bhavani v. Thirlika China Yegaiah at Yegeswara Rao

Case brief

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Pathalavath Bhavani v. Thirlika China Yegaiah at Yegeswara Rao

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