High Court · 2025

Petition under Section 15'1 of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant an interim injunction to restrain the Respondent herein from interfering in any manner with the Petitioners' possession over the plaint schedule property pending disposal of the Revision Petition. Counsel for the Petitioners: SRI VADEENDRA JOSHI Counsel for the Respondents: SRI BONDEMPALLY RAMULU The Court made the following: ORDER HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA CIVIL REVISION PETITION No. SLOL OF 2024 ORDER: This Revision is directed against the judgment and decrec dzrted 07.Oa.2O24 in CMA.No. t7 of 2022 on rhe file o[ thc Principal District Judge, Vikarabad.

2. Petitioners are plaintiffs who hled O.S.No. 41g of 202 I on the llle of the Junior Civil Judge, Tandur seeking rhc relief of perpetual injunction. They also hled I.A. No. l O 1g of 2O2 1, under Order 39 Rules 1 and 2 read with Section 151 CpC for temporary injunction to restrain respondent/delendant from interfcring u,ith their peaceful possession over the petition schedule plot.

3. F-or convenience sake, parties are referred to as thev t are arrayed in lhe suit. '

4. The claim of plaintiffs is that father-in-law of the lsr plzrintil-t ernd the grandfather of plaintiffs 2 to 4, namch. Seshagiri Rao was the absolute owner and possessor of the suit schedule plot. The said Sheshagiri Rao hled O.S.No.7O of 1969 on lhe file ol the District Munsif, Tandoor for declaration o[ ownership and lor perpetual injunction in respect of sutt plot against one Neerati Pentappa and two others and the sairl suit l .- was decreed in his favour on 31.O3. 1971; Sri Sestrasiri Rao died in 1980, leaving behind his two sons, namely Dattatreya Rao and Muralidhar Rao as his legal heirs. Onc of hrs sons Murlidhar Rao died issucless in 1996 and tne other son Dattalreya Rao died in 1989, leaving behind him, plaintiff No.1 - wile and plaintiffs 2 to 4 - children apar[ from anc,t]rer daughter t, Vanita as his legal hcirs. Therefore, Plaintiffs sr-rc:cecded and inheritecl the suit schedule plot along with s.rid Var-ritha as absolule o\\:ners and are in possession of suit pJot after the death of Scshagiri Rao and DaLtatreva Rao.

4.1 lt is thc further case of plaintiffs that they raised a fencing around lhe suit schedulc plot rvith cemcnt pillars and defendant wiLhout any right or inleresl over the sui[ schedule plot and taking advantage ol his house towards \[estern side of the suit plot, u.ith a mala fide aod dishonest intention came to the suit plot and damagcd the fenced ceme.rt pillars on t Oa.12.2021 and thereby, intcrfered with plainliffs' possession. Defendant \r,ent a\4'ay by threatening plrrin tiffs with disposscssion lrom the suit schedule plot whe;tcvcr time is favourable lo him; therefore, Plaintiff No. 1 rvas stared to have lodged a complaint to that eflect beforc the police Yalal, however, police did not take any action against del'endant for he -''-i;-'jr<-_- _) is politically-influenced person as such sought lor injunction in thc in terlocr r tory applica tion. 5- On Lhe other hand, defendant filed counter in I.A.No.1018 of 2O2l claiming that suit schedule plot is his anccstral properLy which is totally admeasuring 1032 Square Yards ancl his father constructed a house in 2000 obtaining permission lrom the Gram Panchayat, Juntupally Village and left an opcn place of 700 Square Yards tor.r,ards Eastern side oi thc house. Delendant also applied for construction of his home in thc open place as his father gifted him the open plot. According to dcfe ndan t, plaintiffs, who were residing at Hyderabad havc created a false cause of action to usurp the open plot and filed the suit showing false boundaries and that there is no existing house of Plaintiffs adjacent to the house of t defer-rdant, as such the Interlocutory Petition is liable to be dism issed.

6. It is to be noted, belorc thc trial Court, there is no oral evidence adduced on either side, but on behalf of Plaintiffs, Exs. P1 to P4 vr.ere marked and on behalf oi defendant, Exs. R I and R2 were marked.

7. The trial Court, afler hearing the submissions on either sidc ancl having obscrued that plaintiffs failed lo shos, t. J their continuous possession ovcr suit scheclule plot from Seshagiri Rao, dismissed thc Application ujCe ordcr dated 06.06.2022. Aggrievcd by the said drsmissal ordcr, plair-rtiffs prefcrrecl Civil Miscellaneous Appeal No. 17 of 2022 under Order 43 Rule 1(r) CPC before the court of the principal Drstrict Juclge, Vikara bad.

8. During the pendencl. of the Appeal, plaintitfs preferred l.A.No. 123 of 2023 to rcceive certain documents on their behalt. The Appellatc Corrrt, after hearing both the srdes, allowed the said Application and received four documents which were also marked as Exs. pS to pg on their berralf. Likewise. I.A.No.949 of 2023 filed by defendant consequently, Exs. RJ and R4 u.ere received. The Appeal was ultimately dismissed by the judgment under Revisron. Aggrieved by the same, the present Civil Revision petit ion is prefcrrcd by plaintiffs \\,ars ordered, 9 Heard Sri Vadeendra Joshi, learne I counsel lor petltloners and Sri Bondempally Ramulu, learnr:d counscl lor respondent.

10. At the outset, it is apposite to refer to the scopc and ambi[ of Appellate Court while clealing with the Appcals frlecl ) under Ordcr 43 Rulc 1 (r) oi CPC- The said provisiort reads as Order 43 Rule 1(r) : An appeal shall lie from thc follou,ing orders under " the provisions of Section lO4, namcly: (r) an order undcr rule 1, rule 2, rule 2-A, rulc 4 or rule 10 of Ordcr XXXIX." 1 l. The pou'ers o[ appcllate Courts are the same as are conferred by this Code to the trial Court. By virtuc of Order 43 Rule 2, thc provisions ol Order 4 1 shall apply to appcals lrom ordcrs.

12. At this stage, it u,ould be appropriatc to notice thc provisions contained in Section 107 CPC r,l,hich providcs powers of Appellate Courl and Section 1O8 which provides procedure in appeals from appellate decrees and ordcrs, containcd in Part VII of CPC. Scclions 1O7 ancl 108 read thus, t "1O7. Powers of Appellate Court.--(l) Subject to such contlitions an<l Iimrtations as rna-r, bc prescribed, an Appellate Court shall have por er (a) to determine a casc finallr.; (b) to rcmancl a case; (c) to frame issucs anrl rcfcr thcm for trlal; (d) to takc additiontrl qvrdcnce or to re(luirc such evidcnce to bc taken. (21 Subiect as aforesaid, the Appellate Court shall have the salne pol{ers ancl shall pcrform as nearlr'as mal be the samc dutrcs as are conferred and imposed b1, the Code on CoLlrts of origitral jurrsdiction in respect of suits institutecl therein. ' t 6 -f! lO8. Procedure in appeals from appellatt decrees and orders.- Th<: provisrons of this Part relating to appeal: ilonr original clecree shall, so far as maI be, applr.to appeals (a) frorn irppellate decrecs, and (b) from orders rnt rlr. rrrrlcr this Codc or unrlcr an-r special or local larv in uhich a diffe rr:r.L l,rorr:c]ure is not providc(1.'

13. Thus, by virtur: of Section 1O8, tht pnrvisions of I)art-Vll inr:ludir-tg Section lO7 which relales lo p()\\'ers ol tlppellate Court to takc additional cvidcnce or 1o r-cclrrire such ovidencc to bc laken, has been made expresslr irlrplicablc to Appeals from orders under. the Code. But, Secri >r L lt)8 limits :rpplication 01' other provisions in that Part ltv using thc ('xpression 'so far as malr be". The expression sO fur as nta\r I>e" should be taken to meztn so far as it is cons sl(il'tl \\'ith the nature of orrler appealed against. Thc SuprcrnC Court in Dr. Partap Singh u. Director of Enforcenrcfit, Foreign Exchange Regulation Actl while considering llt meaning of cxpression so lar as ma_v be" employed in Sectir,rr 37(2) ol the lforeign Exchirnge Regulertion Act, 1973, l-relcl tlrlt rhe said ('xpression has always been construed to mciIl) thzLt thosc provisions may be generally [o]lowed to the e).t(.n1 I)ossiblc. l'hus, tl're pou,ers of the appeltate Courts are th' samc zls arc conlerred bv this Code to the trial Court. B!- virtrrt' of ()rder 43 ' ( r98s) 3 SCC 72 \ 1 Rule 2 of the CPC, the provrsions of Order 41 shall apply to thc Appeals lrom orders, but thc scope of Appeal under Order 43 Rule 1(r) is rcstricted b1. Scction lOtl read u,ith Section 42(2) <tf thc CPC, though the entirc proccdure as applicable to thc regular appeal has been made :rpplicable to miscellaneous appeal under Ordcr 43 Rule 1(r) of the CPC, but distinction must bc kept in mind regarding the scope o[ regular appeal and miscellancous appeal.

14. [n case of a regular Appcal, the same is continuaLion of suit and thc pou,er to merkc additional evidcnce is zrlways there, but in an appeal of miscellaneous nature, thc jurisdiction of miscellancous appcllale Courl, is confined to decide the correctness or olheru,isc of the order of temporary injunction granting or rejccting that Applicatio,n, as thc miscellaneous appellate Court has no concern with strit, but it is only an appellate auLhority to z.rdjudicatc the legality or validity of the order deciding thc Application for temporary injunction.

15. Evcn otherwise, on perus:rl of Sections 1O7 and 108 read with Order 43 Rule 1 o[ the CPC, it is quite clear that therc is impliecl bar on such exercise ol jurisdiction. Thus, the scope o[ misce]laneous appeal under Order 43 Rule I (r) CPC is 8 .1 Iimitecl- Thc challenge is only regarding grant (,l- te mpora r_\, injttnction, as the miscellaneous appellate Crrurt rvas noI exercising the power or jurisdiction over the sui . Accorclingll., lhc miscellaneous appellate Court, r,r,hile hearing M jscellancous Appeal may not entertain an Application for additronal cvidencc submitled belore il and if such an Application is rnzrde. Lhe only coursc rvhich ought to have been adopted by Lhat Court is to direct thc party, plaintiff / defendant as the case m:1v be, to lile the saicl Application belore the trial court for deciding it in accordance rn ith law after disposing of the miscelltrncous Appeal on rneriLs.

16. It is relevant to mcntion here [hat the High Court ol Maclhya Praclcsh in Dhundasing o. Lilad.har2.ck.arlv held that though by virtue of Section 108(b) of CPC, t'rc provisions o[ Seclion 107 that powers of appellate Court :jhall apply to appeals from orders under the Code inclucling C)rde'r 43 Rule 1(r) ol thc CPC, but distinction between rcqular appezrl undcr Section 96 of the CPC and miscellarr:ous etppeal under Order 43 Rule I of the CPC has to be borrr in mind, as rcgrtlar appeal is continuation of suit, but miscell:,neous appeal is not soin either to suit or file appeal, it is conlincd to dccide AIR 1982 MP 14 : {_f :== _ _ _ - 9 legality and validity of an order passed during the penclency of suit and in appeal under Order 43 Rule 1(r) of the CpC, correctness or otherwise of application for temporary injunction granting or re fusing temporary injunction has to bc decided. 17. In Kq.itash Nath Singh o. The District Judge, MirzapuF, the Allahabad High Court also follolvecl the law laid down in Dhundasing's ccrse (supra) and helcl that the Court while hearing miscellaneous Appcal uncler Order 43 Rule 1(r) of is not competent to allow amendment o[ plaint. Follow.ing the said lau., it is quite apparent that the first appellate Court coulc{ not have entertained the Application lor receiving additional documents while exercising the limited jurisdicLion of Appeal under Order 43 Rule 1(r) of CPC as it was- not an Appeal under Section 96 CpC.

18. In the present case, the appellate Oourt while considering the Appeal under Order 43 Rule I (r) of the CpC, did n.t consider the Appeal on meri[s as to whcther the triar court while rejecting temporary inj unction in lavour of plaintiffs/petitioners, has exercised discretion perversely, arbitrarily or capriciously, straightway consrdered the Applications hled to receive additional documents by either side I ' AIR 1993 A 67 \ *T .- \ and allorved the samc and also marked those 'locumcnts as trxhibits in CMA and then adjudicated the matler uide order under Revision confirming the order datcd t16 06 2022 in LA.No.lO18 of 2021. Such a course is clearlv impcrmissible in Ia,"r'. Thr: first appellate Court ought to have dccicled Lhc Appeal on merits t ithout entertaining Applications from e ither side lor rcceiving the additional documents. If such a cotlrsc is :rllor'ved to stand, it u'ill bc very easy for unscrupulous litriSants to hlc an Application tor adclitional evidencc and to get thc relief '"r'hich coulcl not be granled by the trial Court.

19. Therclore thc orders allow'ing l.A.No l23 ctf 2023 flled bv plaintills and I.A.No.949 of 2023 hled b" rlefcndant in CMA.Nri.l7 ol 2O22 are bad in iaw as the same is ir-npermissrblc to bc maintained in Civii Miscellaneous Appcal filed under Orcler zl3 Rule 1 (r) CPC, as such the said orders ztre set aside'

20. For the reasons stated supra, the jrtdgment dated O7.OA.2O24 is set aside. Civil Miscellaneous Appcdl No.17 of 2022 remanded to lhe Principal District Judgc, Vikarabad for hcaring and clispos:rl in accordance with laq'. Sr nce thc said Appcal r.r,as institutcd on 27 .06.2022 and thc suit is of 2O2 1, the appellale CourL is directed to consider and dispose o[ the Civil Misccllerneous Appeal on merits within lu.,r months from thc di.rLe of receipt of a copy of this order. It is needless to mentlon that the appellate Court shall rc.strict itself to the trxhibits marked by the trial Court, r.r'hile considering rhe Appea l.

21. No costs.

22. clt>sed. The Civil Revision Petition is accorclingly, alloncd. Misccllaneous Applications, if any shall stzrnd SD/. MOHD.ISMAIL DEPUTY REGISTRAR /,TRUE COPY// SECTION OFFICER o n e F a i r c o py to l[: I,i,g tE,:SJ,.lr: r-Tffi t#i: EDs H B H E E M A P A KA To, '1 . The Principal District Judge' Vikarabad 3. il"t[fi?l'3""cretary' union of lndia' Ivlinistry of Law' Justice and companv . i[3 t;i'?i"3l',Iouo"r,", Association Library' Hish court for the state of ' i;";;;;,iigl' s ;;3; i; iiil,o""no" Joshi' Advocat" toPt1g]-' B 5ii"E6 ; a;i iona"rnpirrv Ramulu' Advocate [oPUC] 7, Two CD CoPies court Buildings at Hvderabad ^. W AIlK/PSL HIGH COURT DATED: 2610812025 ORDER CRP.No.3101 ot 2024 -.,-i:-:'=::--\-.- 7'l.';-'t::1i-] :r ":s. o,'r: 89 sEp 20ei \i ALLOWING THE CIVIL REVISION PETITION 1