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2010 DIGILAW 591 (AP)

Raja Iqbal Karan v. C Malla Reddy

2010-07-09

L.NARASIMHA REDDY

body2010
ORDER Petitioners filed O.S.No.45 of 2009 in the Court of Principal Junior Civil Judge, Sanga Reddy, against respondents 2 and 3, for the relief of perpetual injunction in respect of the suit schedule property, admeasuring Ac.3.18 guntas in different survey numbers of Mamidipally Village, Sang a Reddy Mandal, Medak District. They narrated the manner in which, they are said to have acquired rights, vis-a-vis the property, and alleged that the respondents 2 and 3 are interfering with their possession and enjoyment. Petitioners have also filed I.A. No.142 of 2009, under Order 39 Rules 1 and 2 C.P.C. The application was opposed by the respondents 2 and 3. Through its order dated 17-03-2009, the trial Court allowed the I.A. 2. The 1st respondent is not a party to the suit, or I.A. He felt aggrieved by the order of temporary injunction, in LA.No.142 of 2009. Initially, he approached this Court by filing a revision. On the basis of the orders passed therein, he filed C.M.A.No.19 of 2009 in the Court of Special Judge for Trial of Offences under SC/ST (POA) Act-cum-V Additional Sessions Judge, Medak, at Sanga Reddy. The C.M.A. was allowed, through order dated 31-07-2009, and the order of temporary injunction granted by the trial Court was set aside. Hence, this revision. 3. Heard. Sri K.V. Bhanu Prasad, learned counsel for the petitioners, submits that the lower Appellate Court had based its conclusions on a set of documents, which were not even made part of record, and without giving any opportunity to the petitioners to rebut the same. He contends that, in case the lower Appellate Court felt that the documents filed by the 1st respondent are relevant, it ought to have remanded the matter to the trial Court for fresh consideration and disposal. 4. Sri K. Laxmaiah, learned counsel for the pt respondent, on the other hand, submits that the petitioners have purposefully omitted to make his client a party to the suit, and collusive order of temporary injunction was obtained. He contends that the lower Appellate Court examined the documents filed by the 1st respondent, and the petitioners have also advanced their contentions, in relation to both the documents. Learned counsel submits that the order under revision does not warrant interference. 5. He contends that the lower Appellate Court examined the documents filed by the 1st respondent, and the petitioners have also advanced their contentions, in relation to both the documents. Learned counsel submits that the order under revision does not warrant interference. 5. The petitioners did not implead the 1st respondent herein, either in the suit, or the I.A. Obviously, feeling aggrieved by the order of temporary injunction, passed in the I.A., the 1st respondent initially approached this Court, and thereafter the Appellate Court. 6. No exception can be taken to the filing of the C.M.A., by the pt respondent. Had it been a case, where the consideration by the lower Appellate Court was confined to the material, that was available for the trial Court, it would have been certainly open to it, to arrive at different conclusions, also and to set aside the order of temporary injunction. 7. The 1st respondent filed certain documents in the C.M.A. It is not known whether any application was filed under Order 41 Rule 27 CP.C, for receiving those documents. The order passed by the lower Appellate Court is silent on this aspect. In case, the lower Appellate Court felt that the documents filed by the 1st respondent are relevant, it ought to have given an opportunity to the petitioners also, to file documents, if any, in their possession, to contradict those, filed by the 151 respondent. The petitioners contend that no such opportunity was given. 8. The trial Court passed order, after perusing the documents filed before it. The order passed by it, cannot be found fault with, in an appeal, on the basis of documents, which were not before it. If it is felt by an appellate Court, that any other documents are necessary to resolve the dispute, the proper course would be, to remand the matter to trial Court. 9. The lower Appellate Court based its conclusions exclusively upon the documents, filed by the 1st respondent. One such document was a validation certificate. Even according to the 151 respondent, that certificate is the subject-matter of several proceedings, including writ petition, pending before this Court. Unless all the relevant documents are available, on record, and parties have an opportunity to deal with the same, it would be too difficult for the Court to arrive at a just and proper conclusion. 10. For the foregoing reasons, the order under revision is set aside. Unless all the relevant documents are available, on record, and parties have an opportunity to deal with the same, it would be too difficult for the Court to arrive at a just and proper conclusion. 10. For the foregoing reasons, the order under revision is set aside. To pave the way for remand of the matter to the trial Court, the order in I.A. is also set aside. It shall be open to the petitioners and the respondents to file fresh documents, which they intend to, before the trial Court. Learned Principal Junior Civil Judge, Sanga Reddy, shall endeavour to dispose of the I.A., within a period of six weeks from the date of receipt of a copy of this order. 11. The suit schedule property is said to be open land. The parties shall maintain status quo, in relation thereto, till the trial Court passes fresh orders. 12. There shall be no order as to costs.