Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 1591 (AP)

YANADHI JAYARAMAIAH v. VELURU VIJAYAMMA

2006-12-18

L.NARASIMHA REDDY

body2006
( 1 ) THE Tr. CMP and CMA arises between the same parties. Hence, they are disposed of by this common order. ( 2 ) FOR the sake of convenience, the parties herein are referred to as arrayed in the Tr. C. M. P. ( 3 ) THIS Tr. CM. P. , is filed with a prayer to withdraw A. S. No. 42 of 2004 from the Court of III Additional District judge, Tirupati, and to post the same before any other Court of competent jurisdiction at tirupati. ( 4 ) THE petitioner filed O. S. No. 49 of 2001 in the Court of Senior Civil Judge, srkalahasthi, against the respondents, for the relief of perpetual injunction, in respect of the suit schedule properties. Respondents 3 and 4 are said to have filed O. S. No. 10 of 1999, in the same Court, for the relief of declaration of title and perpetual injunction, in respect of the very property, against the petitioner, his vendor and another. Through separate judgments, dated 18-8-2003, the trial Court decreed O. S. No. 49 of 2001 and dismissed O. S. No. 10 of 1999. ( 5 ) RESPONDENTS filed A. S. No. 42 of 2004 against the decree in O. S. No. 49 of 2001 in the Court of III Additional District judge, Tirupati. The respondents filed i. A. No. 296 of 2006, for the relief of temporary injunction, stating that taking advantage of the decree for perpetual injunction, the petitioner is trying to demolish the existing structure. The lower appellate court ordered notice. On behalf of the petitioner, a memo was filed stating that the learned Presiding Officer of the appellate Court had an occasion to deal with O. S. No. 49 of 2001, when he recorded evidence as Senior Civil Judge, Srikalahasthi, and accordingly, prayed for transfer of the appeal to some other Court. Arguments were advanced on the lines of the memo and the I. A. , was opposed. Through order, dated 7-9-2006, the learned appellate judge took the view that he did not render judgment in the suit and if the petitioner is of the view that the appeal has to be transferred, he has to take necessary steps in accordance with law. Tr. C. M. P. , is filed accordingly. Through order, dated 7-9-2006, the learned appellate judge took the view that he did not render judgment in the suit and if the petitioner is of the view that the appeal has to be transferred, he has to take necessary steps in accordance with law. Tr. C. M. P. , is filed accordingly. ( 6 ) AFTER discussing the merits of the matter, within the permissible limits, the appellate Court passed an order in I. A. No. 296 of 2006 directing the parties to maintain status quo. The petitioner filed cma No. 901 of 2006 against the said order. ( 7 ) SRI K. S. Gopala Krishnan, learned counsel for the petitioner, submits that though the learned Presiding Officer of the appellate Court did not decide the suit, he had an occasion to deal with the suit as senior Civil Judge, Srikalahasthi, and at that stage expressed his views on some of the aspects. He submits that when an objection was raised by filing a memo, the learned Presiding Officer ought to have excused himself. On the question of granting status quo in I. A. No. 296 of 2006, the learned Counsel submits that being defendants in O. S. No. 49 of 2001, the respondents were not at all entitled to pray for injunction. He submits that this Court discouraged the practice of ordering status quo through its judgment in Ch. Veeramma v. Sk. Mahaboob Subhani, 1991 (1) ALT 366 and submits that the order under appeal cannot be sustained. ( 8 ) SRI A. Chandraiah Naidu, learned counsel for the respondents, on the other hand, submits that the effort of the petitioner is only to avoid adjudication of the matter by the exiting Presiding Officer and a lame excuse was invented for that purpose. He contends that there is no prohibition in law against a defendant in a suit to seek injunction and if the circumstances warrant, the Courts can certainly grant it. ( 9 ) THE transfer of the appeal from the Court of III Additional District Judge, tirupati, is sought only on the ground that the learned Presiding Officer had an occasion to deal with the matter at the trial stage as Senior Civil Judge, Srikalahasthi. ( 9 ) THE transfer of the appeal from the Court of III Additional District Judge, tirupati, is sought only on the ground that the learned Presiding Officer had an occasion to deal with the matter at the trial stage as Senior Civil Judge, Srikalahasthi. The memo filed on behalf of the petitioner before the learned appellate Court reads as under : "it is submitted that the Hon'ble Judge sri A. Pullaiah Gam has conducted the matter in the trial Court i. e. , at Srikalahasti. Hence, the present Presiding Officer cannot decide the matter. It is therefore prayed that the Hon'ble Court may be pleased to transfer the above appeal from this Hon'ble Court to another court in the interest of justice and principles of justice. " ( 10 ) THE petitioner proceeded as though it is settled principle of law that a Judge, who conducted the trial of a matter, is precluded from hearing the same at the stage of appeal and that the Court can itself transfer the appeal, to another Court. It is unfortunate that the advocate, who filed the memo, instead of advising his client properly, had attempted to give a colour of law to the passions of his client. Such a practice cannot be countenanced. ( 11 ) IT is not uncommon that the presiding Officers of the Courts, who deal with the suits or other matters at various stages, happen to handle them at the appellate stage, after they are promoted to higher positions. The only bar that can be imposed against appellate Judge to hear a matter is where the judgment in the original proceedings was rendered by him. The mere fact that he had handled the matter at the trial stage, cannot constitute the bar against him, to hear the appeal. If such a practice is to be adopted, it may become impossible for the appellate Courts to hear the appeals in majority of cases the second part of the matter is that the petitioner and his Counsel at the lower appellate Court wanted the very Presiding officer to transfer the matter to another court. This only exemplifies their anxiety. ( 12 ) NORMALLY, this Court orders transfer of the matters even on very meek grounds to ensure that the confidence of the litigants is not shaken. This only exemplifies their anxiety. ( 12 ) NORMALLY, this Court orders transfer of the matters even on very meek grounds to ensure that the confidence of the litigants is not shaken. If the same attitude is exhibited in the instant case, it would amount to putting a premium on the indiscriminate approach of the parties and their Counsel towards the Presiding Officer. It was not even remotely suggested that the attitude of the learned Presiding Officer was not dispassionate in hearing the matter. Therefore, this Court is not inclined to accede to the request of the petitioner for transferring the appeal. ( 13 ) SO far as the CMA is concerned, it is no doubt true that the occasions for granting injunctions at the instance of defendants in a suit for injunction, are rare. However, no prohibition, as such, exists in this regard. In the judgment referred to above, this Court observed that grant of orders directing maintenance of status quo, must be discouraged, lest, the scramble for possession continues. In the instant case, the complaint of the respondents was that the petitioner is trying to demolish the existing structure. The learned Judge directed maintenance of status quo. ( 14 ) THE status quo vis-a-vis demolition or construction of buildings on a site has its own connotation and it is always different from the order of status quo, as regards possession, or the one in respect of business, or agricultural activity. Since the complaint is about the demolition of building, this court does not find any basis to interfere with the order passed by the lower appellate court. ( 15 ) HENCE, the Tr. C. M. P. and the cma are dismissed. The learned appellate judge shall dispose of the appeal itself within a period of four weeks from the date of receipt of a copy of this order, uninfluenced by any events that gave rise to the filing of these proceedings or observations made therein. There shall be no order as to costs. .