Ramu Reddy and another vs A.K. Sampath Reddy and another

Natarajan, J.—The defendants in the suits, who were the respondents in the appeals preferred against the suits and petitions filed under O.39, Rules 1 and 2, and S. 151, C.P. Code, are the appellants in two Civil Miscellaneous Appeals. The facts in both the cases are identical, and therefore, it is enough if the facts in one of the suits, viz, O.S. No. 725 of 1974 are mentioned. The suit O.S. No. 725 of 1974 was filed by the respondents in C.M.A. 288 of 1977, for declaration of their right to be in possession of the suit lands as cultivating tenants and for a permanent injunction. During the pendency of the suit, the plaintiffs asked for an order of interim injunction while the defendants asked for the appointment of a receiver. It is not necessary to refer to the order passed by the trial court on those petitions. The suit was tried in due course and was dismissed. Against the dismissal of the suit, the plaintiffs filed an appeal to the Sub-Court of Kancheepuram, and, once again, filed a petition under Or. 39, Rules 1 and 2, and S. 151, C.P.C. for temporary injunction till the disposal of the appeal. The Subordinate Judge, after hearing the other side, has allowed the petition and ordered temporary injunction in favour of the appellants before him till the disposal of the appeal. As against the order of temporary injunction, the defendants (respondents before the lower appellate court) have preferred this Civil Miscellaneous Appeal.

When the appeals were taken up for hearing, Mr. Sundaravaradan, learned counsel for the respondents, raised a preliminary objection stating that no appeal lies against the order of temporary injunction granted by the Subordinate Judge. As authority for this contention, he cited Kalahasti v. Munisami Chetti 83 L.W. 170 which was decided by me. Mr. Subbiah, learned counsel for the appellants, countered the objection of Mr. Sundaravaradan by stating that the decision in Kalahasti v. Munusami Chetti 83 L.W. 170 was rendered under different circumstances and the facts of the present case would not attract the ratio laid down in that case. In addition, he submitted that it is the decision in Ramaswamy Reddiar and others Vs. Chinna Sithammal and others, which would govern the case of the appellants.

On a consideration of the matter, I find there is force in the contention of Mr. Subbiah Kalahasti v. Munusami Chettti 83 L.W. 170 was a case where a plaintiff filed an application under Or. 39 Rule 1, C. P. C. before the trial court for a temporary injunction. On the trial court dismissing the petition, the plaintiff preferred a Civil Miscellaneous Appeal against that order and filed another petition under Or. 39, Rule 1, C.P.C. before the appellate court for temporary injunction. When the appellate court granted temporary injunction, the defendant in the suit filed a further appeal to this court. It was in that situation, I held that an appeal against the order of the appellate judge, which itself was passed in an appeal against petition under Or. 39, R. 1., C. P. C. will not lie as sub-sec. (2) of S. 104 placed an embargo on such appeal. This position has been clarified by N.S. Ramaswami, J. in Ramaswamy Reddiar and others Vs. Chinna Sithammal and others, in the following words--

As against that order an appeal was filed to this court and Natarajan, J. held that the appeal does not lie. It is pointed out that even though an order under Or. 39 R.1, C.P.C. is an appealable order under Or. 43, R. 1, C. P. C. the order having been made by an appellate court, sub-sec. (2) of S. 104, C.P.C. applied and that therefore, the appeal was not competent. On the facts of that case, if I may say so with respect, the decision of Natarajan, J. is unexceptionable. As seen above, the order which was appealed against, though made under Or. 39, R. 1, C.P.C. had been passed in an appeal which itself was one against an appealable order. The appeal before the court which passed the order questioned before Natarajan, J. was really one coming under S. 104, that it is an appeal against an appealable order. But the observations of the learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one under one or other of the clauses of Or. 43, R. 1, C.P.C. The learned Judge could not have possibly meant it so.

The above passage, if I may say so with respect, correctly portrays my decision in Kalahasti v. Munusami Chetti 83 L.W. 170 and I am thankful to my learned brother, N.S. Ramaswami, J. for having elucidated the ratio laid down in Kalahasti v. Munusami Chetti 83 L.W. 170.

In the instant cases, the orders which are appealed against before this court were not passed in appeals preferred under O.43, R.1, C.P.C. but were once passed in appeals preferred under S.96 of the Code. Therefore, as pointed out by N.S. Ramaswami, J. in Ramaswamy Reddiar and others Vs. Chinna Sithammal and others, the Civil Miscellaneous Appeals are not barred by sub-S.(2) of S.104 of the Code. Hence, the preliminary objection in each of the two appeals cannot be sustained. The appeals will, therefore, stand posted for further hearing on merits.

Both the appeals have common features though they have been preferred by different parties. The respondents in the two appeals claim to be cultivating tenants. For a declaration of their status as cultivating tenants and for a decree for permanent injunction restraining their respective landlords from dispossessing them, they filed suits in the court of the District Munsif, Tiruvallur. Both the suits ended in dismissal and the finding rendered in the suits was that the tenants-plaintiffs were not in possession and were not entitled to the reliefs asked for by them in the suits. As against the judgment and decree of the trial court in their respective suits, the tenants preferred appeals to the Subordinate Judge, Kancheepuram. In the appeals they once again asked for an order of temporary injunction in their favour. The applications were opposed by the concerned landlords. The Subordinate Judge, without going into the merits of the case or the prima facie entitlement of the petitioners in the applications for temporary injunction, or the balance of convenience of the parties, has passed a cryptic and confusing order and that has necessitated the landlords to come forward with these two appeals. The order passed by the Subordinate Judge in each case is as follows:-- Counter filed, Arguments heard. Status quo prior to judgment of the lower court to be maintained. Petition closed.

It is needless to say this is hardly a satisfactory or proper disposal of the petitions in the two appeals by the Subordinate Judge. He has not considered the rival claims of the parties as to who is in possession of the property. He has also not touched upon the finding of the trial court as to who was in possession of the property. The order does not also indicate as to what was the status quo prior to the judgment that is to be maintained by the parties. The position before the trial court was that the tenants had filed petitions for temporary injunctions, but no orders were passed on these petitions. On the other hand, on petitions filed by the landlords a Receiver had been appointed by the trial court to harvest the standing crops on the lands and that order was set aside by the Subordinate Judge on appeal to him. In such circumstances, the direction of the Subordinate Judge that status quo prior to the judgment of the lower court should be maintained is clearly misleading and ambiguous. The Subordinate Judge should have disposed of each of the petitions with reference to the contentions of the parties and he must indicate in the order whether the tenants are entitled to an order of injunction in their favour or not and give his reasons for the order passed by him in the petitions.

The appellants are therefore justified in their grievance about the manner in which the Subordinate Judge has passed orders on the injunction petition. Therefore, both the appeals will stand allowed and the papers will be remitted to the Subordinate Judge for fresh disposal of the interlocutory applications in accordance with the directions contained herein. The parties will bear their respective costs. The Subordinate Judge will dispose of the petitions within four weeks from the date of receipt of the records, and if possible, he will dispose of the main appeals themselves expeditiously.