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2002 DIGILAW 138 (KAR)

GOWRAMMA v. SHAMANNA REDDY

2002-02-18

D.V.SHYLENDRA KUMAR

body2002
D. V SHYLENDRA KUMAR, J. ( 1 ) THE respondent has entered Caveat and is represented by his Counsel Sri P. R. Nanjunda Swamy. ( 2 ) THESE appeals are taken up for final disposal with the consent of the learned Counsels appearing on both sides. ( 3 ) THESE three appeals arise out of a common order dated 7-9-2001 passed on three applications in O. S. No. 4912 of 2000 pending before the XVII Additional City Civil Judge, Bangalore City, Bangalore. ( 4 ) THE present appellants are the plaintiffs in the suit and the respondent is the sole defendant. The case of the plaintiffs in the suit is that the suit schedule property had fallen to the share of one Narayana reddy in a family partition in the year 1978 and after the death of narayana Reddy, the 1st plaintiff as the wife and the 2nd and 3rd plaintiffs as the sons have succeeded to the property of Narayana Reddy. The defendant was trying to interfere with their peaceful possession and enjoyment and trying even to alienate the said property. The wife and children of the said Narayana Reddy who claim to be in possession have tiled the suit for protection of their right for the enjoyment of the suit schedule property. They had also sought for an order of injunction by filing 3 applications, one for restraining the defendant from alienating the property, another for restraining the defendant from cutting and removing the trees standing in one of the suit schedule property and also for an order of temporary injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the property by the plaintiffs. All the 3 applications came to be allowed by the Trial court by a common order dated 10th November, 2000. The defendant was restrained from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiffs by an order of temporary injunction, aggrieved by which the defendant had carried the matter further by way of appeal before this Court in M. F. A. No. 5012 of 2000 and that appeal came to be dismissed confirming the order passed by the Trial Court. ( 5 ) SUBSEQUENTLY, the defendant has come up with three applications almost identical to that of the applications which had been filed by the plaintiffs earlier alleging that the plaintiffs are taking advantage of the earlier order that had been granted by the Trial Court and confirmed by the High Court and are trying to cut and remove trees and are trying to alienate the property. These applications were resisted by the plaintiffs. ( 6 ) THE Trial Court by a common order dated 7-9-2001 allowed the said applications and restrained the plaintiffs from cutting and removing the trees and from alienating the suit schedule property. The Trial court has also observed that the balance of convenience lies in favour of granting such an order, inasmuch as if ultimately the defendant is able to succeed in the suit the property in question should be preserved for bis benefit also. However, with regard to the possession of the property I do not find any discussion in the order passed by the Trial Court. Nevertheless the application for the restraint order against the plaintiffs has also been allowed. But, technically speaking even the application for an order of temporary injunction restraining the plaintiffs from interfering with the peaceful possession and enjoyment of the property by the defendant amounts to have been allowed because all the 3 applications have been allowed. ( 7 ) IT is aggrieved by this common order passed by the Trial Court, the plaintiffs are in appeal before this Court by filing the above 3 appeals. ( 8 ) SRI Raghu Babu, learned Counsel appearing on behalf of the appellants has submitted that the Trial Court has grossly erred in passing the impugned order when the Trial Court itself had granted an order of temporary injunction in favour of the present appellants and the said order came to be confirmed by the High Court as well and in the absence of any other development or circumstances including variation of the situation, the Trial court could not have passed the present orders which virtually is in conflict with the earlier order passed on the Interlocutory applications filed by the plaintiffs and amounts to modifying that order. ( 9 ) SRI P. R. Nanjunda Swamy, learned Counsel on behalf of the respondent who has entered Caveat submits that initially the suit was filed only for an order of injunction and in the defence the defendant had taken the stand that there was no partition and this apart one of the suit items in Sy. No. 129 was the self-acquired property of the defendant and in view of this stand the appellants had sought for declaration also in respect of the said survey number by seeking amendment of the plaint and submits that the earlier restraint order of temporary injunction cannot operate against the defendant in respect of this particular property namely, the land in Sy. No. 129. ( 10 ) THE learned Counsel for the respondent further submits that the respondent was entitled to make such application of the present nature and the Trial Court is also justified in granting an order of temporary injunction in his favour though he is the defendant in the suit and submits that he is supported by authority to the effect that even the defendant in a suit can seek for temporary injunction against the plaintiffs. There is no dispute with regard to this submission of the learned counsel. But the question that arises for consideration is as to whether the Trial Court having already granted an order of temporary injunction with respect to the suit schedule item on an application filed by the plaintiffs and such order of temporary injunction having been confirmed by the High Court in appeal, can go back while passing an order on the subsequent application filed by the defendant in the same suit which will conflict with the earlier order. The effect of the earlier order is that an order of temporary injunction operates and continues to operate as against the defendant in the suit. Until and unless that order is modified, that order cannot be got over by passing of subsequent orders by the Trial Court at the instance of and on an application filed by one of the parties to the suit when in the earlier order the High Court has not reserved any such liberty in favour of the Trial Court. Until and unless that order is modified, that order cannot be got over by passing of subsequent orders by the Trial Court at the instance of and on an application filed by one of the parties to the suit when in the earlier order the High Court has not reserved any such liberty in favour of the Trial Court. Judicial discipline and propriety requires that the Trial Court cannot and should not pass any order which is either in conflict or contrary to the earlier order which has been confirmed by the High Court. ( 11 ) THE Trial Court has grossly erred in allowing the applications of the defendant and in passing the impugned order in the light of the earlier order that was available on record and has been confirmed by the high Court in the miscellaneous first appeal. ( 12 ) THE learned Counsel for the appellants has filed a memo before the court today giving an undertaking on behalf of the appellants-plaintiffs that the appellants are neither interested in cutting and removing the trees standing on the lands nor in alienating the lands during the pendency of the suit before the Trial Court. The said memo is taken on record. ( 13 ) IN the circumstances all these 3 appeals are allowed. The impugned order dated 7-9-2001 passed by the Trial Court in common on the three interlocutory applications is set aside. The interlocutory applications are rejected recording the memo filed by the appellants and subject to the undertaking given by the appellants that they will neither cut and remove the standing trees in the suit schedule land nor will alienate the property during the pendency of the suit before the Trial Court. ( 14 ) THE Trial Court to expedite the disposal of the suit as per the directions issued by this Court even in the earlier round of miscellaneous first appeals. ( 15 ) NO costs. --- *** --- .