HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No.66 OF 2007 Date 14-12-2010 Between: Sri Vasavi Arya Vaishya Nithyanna Sathram, Kaleswaram, represented by its President Medi Shankaraiah. …Petitioner. And: Soma Veerayya and another. ……Respondent. HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No.66 OF 2007 ORDER: This Revision Petition is filed against the orders in I.A.No.1148 of 2006 in O.S.No.25 of 2006 filed under 144 C.P.C. ordering restitution of the rights granting restitution of the property consequently on the dismissal of the interim application in I.A.No.1119 of 2006. The suit was filed by the plaintiff with regard to the declaration of right of management of the Choultry by name ‘Sri Vasavi Arya Vaishya Nithyanna Sathram, Kaleswaram’ for which one Medi Shankaraiah was the president of the said Choultry and an injunction was sought to be granted and the plaintiff has got right of management and the defendants have no right to interfere. On the other hand, it is the contention of the defendants that there is an elected body to manage the choutry ad they are the persons who are entitled for management and also in occupation of the property and managing the same and after filing of the suit, I.A.No.1119 of 2006 was filed, order of the interim injunction was obtained. Subsequently, on merits the said application was dismissed which was also incidentally confirmed in the appeal against that order. According to the case of the defendants who filed this application for restoration in pursuance of the order of injunction, obtained by the plaintiff on 13-10-2006, they have forcibly occupied the property and since interim injunction has been vacated, they are entitled for restoration of the property and an effort made before the police also did not give any result and therefore, the present application was filed. The plaintiff/revision petitioner herein has opposed the application mainly on the ground that the application is not maintainable under Section 144 C.P.C. and the question of restitution does not arise since he was in possession of the property even before granting of injunction and consequently, the relief claimed by the petitioner which was granted by the lower court is illegal. The lower court after considering the rival contentions came to a factual conclusion that defendants were dispossessed in pursuance of the interim injunction orders and therefore, relying on the decision reported in SOUTH EASTERN COAL FIELDS LTD., v. STATE OF MADHYA PRADESH ([1]) found that the court has inherent power to order restitution so as to do complete justice that too a party where the parties are to be related to the same position after the operation of the orders of the court. Aggrieved by the said order, the present revision is filed. The point for consideration is whether the order of the lower court in ordering restitution is illegal? Heard Sri A.Rajasekhar Reddy, learned counsel for the petitioner and Sri C.Malla Reddy, learned Counsel representing Sri G.Anandam, learned counsel for the respondents. The facts in this case are not in dispute. The Choultry is meant for the benefit of the community of Vysya and Trust Deed is created and a body of persons to be elected for the management of the Trust and also the purpose for which the trust has been created. The petitioner herein claims to be the son of the person who claims to be the manager of the property. Earlier, he filed a suit for injunction and no interim orders were passed in that and subsequently, the present suit was filed for declaration of right of management and interest in the property and injunction. The fact that the parries are governed by the deed of trust cannot be disputed at this stage of interim orders passed by this Court. The defendants contends that there was election and they are the persons who are entitled to manage the properties which according to the Senior Counsel was not incidentally in challenge in any proceedings. The fact also remained that the interim injunction orders granted initially by the lower court has been vacated and it was also confirmed in the appeal. Learned counsel for the petitioner strenuously contends that it is not a case where the provisions under Section 144 C.P.C. are to be invoked since it is not a case where the individual has come into possession by virtue of dispossession in pursuance of the orders of the injunction and merely because interim injunction order is dismissed, the possession of the party cannot be disbelieved and as such exercise of power by the lower court is erroneous. On the other hand, it is the contention of the learned Senior Counsel for the respondents that a complaint was given to the police about the dispossession and in spite of the approach to the police, they could not do anything and it is for the court to do justice. Learned counsel for the petitioner relied on a decision reported in KOTHAPALLI SURYANARAYANA v. BANDIKATLA ANJANEYULU ([2]) which was incidentally relied on before the lower Court and the lower court distinguished on facts to the effect that in that case it was not a case where a person came into possession in pursuance of the order of the injunction, therefore, the said decision has no application as rightly contended by the senior counsel for the respondents. So also, the decisions reported in K.RAJA GOPAL v. M.VENKATAPPA AND ANOTHER ([3]) and NALLA RAJA REDDY v. B.SHYAMSUNDER JOSHI AND OTHERS ([4]) does not lay any different law and it is the duty of the court to see that the orders of injunction which were obtained by the parties shall not be taken advantage by questioning possession if they are not really in possession of the property. To such situation only, powers of Court under Section 144 and 151 C.P.C. has to be exercised as found by the Honourable Supreme Court in the decision reported in the 1st cited. As the matter stands, there is absolutely no contrary evidence to the affidavits filed before the lower court about the act of the plaintiff in getting the unlawful possession of the property after the injunction order on 13-10-2006. It is also fairly admitted by the learned counsel for the petitioner that the defendant is in factual and actual management of the property as on date having come into possession by virtue of restoration of the order. Therefore, it appears to the court that there is scramble to the possession between both parties and the interest of the parties has to be taken into consideration and it is also fairly conceded by the Senior Counsel that there is no personal interest except the interest of the Trust, the rights of the plaintiff have to be decided in a regular suit after the trial and as the matter stands, the defendants are elected persons though in disputed. Therefore, in view of the above circumstances and as the rights of the plaintiff were still to be decided in the suit, I feel in the interest of justice, the defendants who are said to have been elected in pursuance of the original scheme of the Trust shall continue to manage the same and they shall file all accounts before the lower court from the date of assuming the management as per the restoration order and it shall be decided at the end of the trial by the lower court about the representation of the parties. Therefore, I do not find any reason to interfere with the order of the lower court in keeping the management of the property with the defendants. It is not in dispute according to the learned senior counsel for the respondent, that even if the counsel for the petitioner objects to the nature of election, it does not fall for consideration in this application. The defendants who are now in management shall furnish accounts by the end of every month by discharging their duties as receiver on or before 10th of every succeeding month and from the date of possession which they have been for the last 2 years. Plaintiff will have every opportunity to file objections. The right of the parties shall be subject to the final decision in this suit. The lower court shall dispose of the suit within a period of six months from the date of receipt of a copy of this order without being influenced by any of the observations or the contentions raised in this application because it is only an internal arrangement made between the parties. With the above observation, this C.R.P. is dismissed. No costs. _________________________________ Justice N.R.L.NAGESWARA RAO Dated 14-12-2010. Dvs HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No.66 OF 2007 Dated 14-12-2010 [1] AIR 2003 SC 4482 [2] 1998 (6) ALD 82 [3] 2005 (5) ALD 79 [4] 2002 (1) ALD 616