High Court · 2023

Judgment

(per A.V. Sesha Sai, J) Heard Sri Jitendra Kanyalur, learned counsel for the appellant in C.M.A.No.372 of 2023, Sri N.V.Chandra Sekhar, learned counsel for the appellant in C.M.A.No.373 of 2023 and Sri Mahadeva Kanthrigala, learned counsel for the plaintiff/respondent in both the appeals, apart from perusing the material available on record.

2. Since these two Civil Miscellaneous Appeals, preferred under Order 43 Rule 1 of Code of Civil Procedure,1908 (for short ‘CPC’), arise from the same Order, dated 21.08.2023, passed in I.A.No.960 of 2022 in O.S.No.78 of 2022 on the file of the Court of the learned II Additional District Judge, Madanapalle, this Court deems it appropriate and apposite to hear these matters together and dispose of the same by way of this Common Judgment. 2 AVSS,J & JS,J CMA Nos.372 & 373 of 2023

3. C.M.A.No.372 of 2023 is an appeal filed by

defendant No.1 and C.M.A.No.373 of 2023 is an appeal filed by defendant Nos.2 to 4 in O.S.No.78 of 2022 on the file of the Court of the learned II Additional District Judge, Madanapalle. These two appeals, call in question the Order, dated 21.08.2023 passed in I.A.No.960 of 2022 by the said Court.

4. The plaintiff/respondent instituted aforementioned suit against the appellants herein partition of ‘A’ & ‘B’ schedule properties and for allotment of 16th share in ‘A’ Schedule and 3 shares, out of 8 shares in ‘B’ Schedule properties. The defendants/appellants herein filed the written statement. Along with the suit, plaintiff/respondent herein filed I.A.No.960 of 2022 under the provisions of Order 39 Rule 1 CPC, seeking ad-interim temporary injunction to restrain the defendants and their men from alienating the suit schedule properties, pending disposal of the suit.

5. Initially, the learned Judge, on 05.12.2022, granted ad-interim injunction. The defendants/appellants herein filed a counter, resisting the said injunction 3 AVSS,J & JS,J CMA Nos.372 & 373 of 2023 application. In order to substantiate his case, the plaintiff/respondent herein filed Exs.P1& P2 documents, whereas, the defendants filed Exs.R1 to R8 documents. The learned II Additional District Judge, Madanapalle, by way of the order impugned in these appeals, disposed of I.A.No.960 of 2022, directing the parties to the litigation, to maintain status-quo with regard to the suit schedule properties, till the disposal of the suit. Hence, the present appeals are filed, seeking to set aside the aforementioned status-quo order under the provisions of Order 43 Rule 1 CPC.

6. According learned counsel appellants/defendants, the questioned order is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 39 Rule 1 CPC. In elaboration, it is further contended by the learned counsel that the order of the learned Additional District Judge is contrary to law, laid down by this Court and the Hon’ble Supreme Court, while dealing with the applications under Order 39 Rules 1 & 2 CPC. It is also submitted by the learned counsel that the learned Judge failed to take into consideration Exs.R1 to R8 documents, filed by 4 AVSS,J & JS,J CMA Nos.372 & 373 of 2023 defendants and also failed to take into consideration the averments in the counter filed by the defendants Interlocutory Application. It is also the submission of the learned counsel that having categorically recorded findings in favour of the defendants, the learned Judge is not justified in ordering status-quo. In support of his contentions and submissions, learned counsel for the appellants takes the support of the judgment of the Composite High Court of Andhra Pradesh in the case of Duvvalu Ilaiah and Others V. Duvvala Ramaiah and Others1.

7. Per contra, Sri Mahadeva Kanthrigala, learned counsel for the plaintiff/respondent, strongly resisting the appeals, contends that there is absolutely no error nor there exists any infirmity in the order, passed by the learned Additional District Judge and in the absence of the same, the impugned order is not amenable for any correction under the provisions of Order 43 Rule 1 CPC. In elaboration, it is further contended that since the learned Judge assigned cogent and convincing reasons for arriving at conclusions, the questioned order does not warrant any 1 (1997) 6 ALT 95 5 AVSS,J & JS,J CMA Nos.372 & 373 of 2023 interference of this Court. It is further submitted that the order passed by the learned Judge is an equitable order and having regard to the finding recorded by the learned Judge that, the order would avoid the multiplicity of proceedings, the impugned order cannot be faulted. In support of his contentions and submissions, learned counsel places reliance on the following judgments : (i) K.Ravi Prasad Reddy and another V. G.Giridhar and another - [ 2022 (2) ALT 102 (D.B.)] (ii) Judgment, dated 20.09.2023 in C.M.A.No.25 of

8. In the above background, now the issues, which this Court is called upon to consider and answer in the present Civil Miscellaneous Appeals are : “(i) Whether the impugned order, passed by the learned II Additional District Judge, Madanapalle, is sustainable and tenable ? (ii) Whether the impugned order warrants any interference of this Court, in exercise the jurisdiction, powers conferred under the provisions of Order 43 Rule 1 CPC ?” 6 AVSS,J & JS,J CMA Nos.372 & 373 of 2023

9. The sine-qua-non/condition precedent entitlement to the equitable relief as provided under Order 39 Rules 1 & 2 CPC is the establishment of three necessary and indispensable ingredients viz., prima-facie case, balance of convenience and irreparable loss or injury. Only a person, who is successful in showing prima-facie case in his/her favour is entitled for the relief under these provisions of law.

10. According to the plaintiff/respondent, the suit schedule properties are the joint family properties and defendant No.1 being the eldest person in the family, obtained revenue records in his name and got his name mutated in the said records.

11. On other hand, defendants/appellants herein precisely is that, in view of the Relinquishment Deed, dated 10.10.1984, Gift Deed, Dated

10.10.1984 and WILL, dated 20.12.1989, the subject properties lost the character of joint family properties and the defendants are the absolute owners and possessors of the subject properties. 7 AVSS,J & JS,J CMA Nos.372 & 373 of 2023

12. In order substantiate his case, plaintiff/respondent herein filed Exs.P1 & P2. To substantiate their stand, with regard to the nature of the properties, the appellants pressed into service Exs.R1 to R8.

13. A perusal of the order passed by the learned Additional District Judge shows that the learned Judge, despite the availability of the aforementioned documents, did not discuss anything with regard to the same. The learned Judge also found in the impugned order that the prima-facie case, as to the existence of the right claimed by the plaintiff cannot be decided in the present application. In view of the pleadings and the documents filed on behalf of the defendants, in the considered opinion of this Court, since it is an application filed Order 39 Rules 1 & 2 CPC, it is obligatory and mandatory on the part of the trial Court to record findings, as regards the above mentioned three ingredients of Order 39 Rules 1 & 2 CPC. Without recording anything with regard to the same, the learned Judge only on the ground that, in the event of alienation being permitted the same would result in multiplication of proceedings, granted order of status-quo. Therefore, in the considered opinion of this Court 8 AVSS,J & JS,J CMA Nos.372 & 373 of 2023 the said exercise undertaken by the learned Judge is not in accordance with the very spirit and object of the provisions of Order 39 Rules 1 & 2 CPC. This Court is also of the opinion that the present application is required to be considered afresh by the learned Judge by taking into consideration the documents available on record for arriving at the prima-facie conclusions. In view of the above reasons, the judgments cited by the learned counsel for the plaintiff/respondent are of no assistance to the case of the plaintiff /respondent.

14. For the aforesaid reasons, these appeals are allowed, setting aside the Order, dated 21.08.2023, passed in I.A.No.960 of 2022 in O.S.No.78 of 2022 on the file of the Court of the learned II Additional District Judge, Madanapalle and consequently, I.A.No.960 of 2022 stands restored to file, for consideration of the same by the learned Judge and for passing appropriate order, strictly, in accordance with law, after giving complete opportunity to all the stakeholders. The learned II Additional District Judge, Madanapalle, requested to dispose of I.A.No.960 of 2022, as expeditiously as possible, preferably within a period of four (04) weeks from the date of receipt of a copy of this order. 9 AVSS,J & JS,J CMA Nos.372 & 373 of 2023 No order as to costs. As a sequel, pending miscellaneous petitions, if any, in both the appeals stand closed. ___________________ A.V. SESHA SAI, J ________________________ SUMATHI JAGADAM, J 18th December,2023. RPD 10 AVSS,J & JS,J CMA Nos.372 & 373 of 2023 183 THE HON’BLE SRI JUSTICE A.V. SESHA SAI & THE HON’BLE SMT.JUSTICE SUMATHI JAGADAM C.M.A.Nos.372 & 373 of 2023 (per A.V. Sesha Sai, J) Date: 18.12.2023 RPD