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B.R. Ramesh, Hyderabad & Others v/s The General Manager, Andhra Pradesh Essential Commodities Corporation Limited & Another

    Civil Revision Petition No. 1771 of 2012
    Decided On, 12 December 2014
    At, In the High Court of Judicature at Hyderabad
    By, THE HONOURABLE MR. JUSTICE L. NARASIMHA REDDY
    For the Petitioners: B. Vijaysen Reddy, Advocate. For the Respondents: Learned G.P. for Arbitration.


Judgment Text
Smt. Shanta Bai, the mother of the petitioners herein, filed O.S.No.1168 of 1982, against the respondents, for the relief of perpetual injunction, in the Court of VII Junior Civil Judge, City Civil Court, Hyderabad. During the pendency of the suit, she has also filed I.A.No.630 of 1982 under Order XXXIX Rules 1 and 2 C.P.C. The first respondent filed an undertaking before the trial Court. The plea of the first respondent was that the suit schedule property was allotted to them through G.O.Ms.No.481 (Revenue) Department, dated 05.04.1982, and possession was handed over to them. When Shanta Bai insisted on granting of temporary injunction, the second respondent filed an undertaking before the trial Court to the effect that he would unconditionally demolish and remove the structures from the suit schedule property, in case the suit is decreed. It is stated that the I.A was disposed of in terms of the undertaking.

The suit was dismissed by the trial Court on 09.06.1997. Aggrieved by that, Shanta Bai filed A.S.No.289 of 1997 in the Court of III Additional Chief Judge, City Civil Court, Hyderabad. The appeal was allowed on 31.07.2000 and a decree for perpetual injunction was granted. Shanta Bai died on 24.02.2001 and the petitioners herein were brought on record.

The petitioners filed I.A.No.909 of 2004 in the trial Court under Section 144 C.P.C with a prayer to restore the possession of the suit schedule property. The I.A was opposed by the respondents. The trial Court dismissed the I.A through order dated 27.06.2011. Hence, this revision.

Heard Sri B. Vijaysen Reddy, learned counsel for the petitioners and the learned Government Pleader for Arbitration.

The suit itself was for the relief of injunction simplicitor. In the I.A filed under Order XXXIX Rules 1 and 2 C.P.C, the respondents filed an undertaking and the I.A was disposed of in terms thereof. Though the suit was dismissed by the trial Court, it was decreed by the lower appellate Court. Thereafter, the petitioners filed the present I.A for restoration of possession.

The trial Court took note of the fact that the respondents filed an undertaking before the trial Court in the I.A filed under Order XXXIX Rules 1 and 2 C.P.C and ultimately, the suit came to be dismissed. The whole controversy is as to the manner in which the undertaking recorded by the trial Court for enforcement. The petitioners have chosen the route of the restoration petition. The trial Court took note of the undertaking as well as the effect thereof. However, in the course of discussion, it expressed the view that the sole plaintiff i.e., the mother of the petitioners was not in possession of the property at all. That runs contrary to the record.

The very fact that a decree for perpetual injunction is granted, would suppose that the petitioners are in fact in possession or deemed to be in possession. The enjoyment of the premises by the respondents was only on the basis of the undertaking, that too, which was conditional on the result in the suit. Once the suit was decreed, the respondents cannot get away from the undertaking. In case, they felt aggrieved by the decree passed by the lower appellate Court, they ought to have filed a second appeal. They cannot ignore the decree and the undertaking furnished by them, after the decree became final. Further, the record does not disclose the nature of disposal given to the I.A, i.e., the forum in which the undertaking was recorded.

The

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refore, the Civil Revision Petition is allowed and the order under revision is set aside. The I.A is remanded to the trial Court for disposal afresh, duly taking into account the order passed in I.A.No.630 of 1982 as well as the decree passed in the suit. There shall be no order as to costs. The Miscellaneous Petitions filed in this revision petition shall stand disposed of.
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