Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 721 (AP)

P. Sudarshan Reddy v. Geetha Srinivasan

2014-06-13

C.V.NAGARJUNA REDDY

body2014
JUDGMENT This Civil Miscellaneous Appeal is filed, with leave, in order to question order dated 1-11-2013 in I.A.No.1896/2013 in O.S.No.1356/2013 on the file of the learned I Additional District and Sessions Judge, Ranga Reddy District. For disposal of this appeal, detailed facts need not be recorded. It will suffice to note that the appellant is a third party to the suit filed by respondent Nos.1 to 8 for the following reliefs: “(a) To grant perpetual injunction restraining the defendants from interfering in possession and enjoyment of the plaint schedule property more particularly in the southern portion of Sy.No.309, situated at Poppalaguda village, Rajender Nagar Mandal, R.R. District. (b) To grant perpetual injunction restraining the defendants from interfering in the construction of compound wall carried by the plaintiffs on the southern boundary of Sy.No.309, situated at Poppalaguda village, Rajender Nagar Mandal, R.R. District as per the Tonch plan enclosed in the list of documents. (c) And costs of the suit be awarded. (d) And pass such other order or orders to which the plaintiff is legally entitled to.” Along with the suit, the respondents/plaintiffs have filed two Interlocutory Applications, namely, I.A.No.1897/2013 for an ad interim injunction restraining respondent Nos.9 to 25/defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property, and I.A.No.1896/2013 for an ad interim injunction restraining the defendants from interfering with the construction of southern compound wall running from East to West being carried on by the plaintiffs on the petition schedule property admeasuring Ac.19-10 guntas in Sy.No.309 of Poppalaguda village, Rajendernagar Mandal, Ranga Reddy District. By separate orders passed on the same day, the lower Court has granted ad interim injunction orders in both the applications. The appellant, who claims to be the owner of land in Sy.No.296 allegedly situated on the southern side of the suit schedule property, filed the present appeal, with leave, feeling aggrieved by the ad interim injunction granted in I.A.No.1896/2013. It is his pleaded case of the appellant that in the guise of ad interim injunction order, the plaintiffs have been encroaching upon his land in Sy.No.296 and raising compound wall. A Division Bench of this Court, by order dated 24-4-2014 has granted leave to the appellant to question the order of the lower Court. It is his pleaded case of the appellant that in the guise of ad interim injunction order, the plaintiffs have been encroaching upon his land in Sy.No.296 and raising compound wall. A Division Bench of this Court, by order dated 24-4-2014 has granted leave to the appellant to question the order of the lower Court. I have heard Sri Anand Kumar Kapoor, the learned Counsel for the appellant and Sri R.A. Achuthanand, learned Counsel for respondent Nos.1 to 8/plaintiffs and perused the record. The learned Counsel for the appellant has strenuously contended that the lower Court has committed a serious impropriety in granting ad interim injunction to facilitate the construction of compound wall on the same day when it has already granted ad interim injunction restraining the defendants from interfering with the plaintiffs’ possession. He has submitted that in the nature of the relief claimed by the plaintiffs, the grant of ad interim injunction, amounts to granting the main relief itself without hearing the opposite party and that therefore such an order cannot be sustained. Sri R.A. Achuthanand, learned Counsel for the respondent Nos.1 to 8/plaintiffs sought to justify the order of the lower Court by stating that the same conforms to the provisions of Order XXXIX CPC as sufficient reasons have been given while granting the ad interim injunction as envisaged by the proviso to Rule 3 of Order XXXIX CPC. He has also submitted that even if the Court seeks to interfere with the order of ad interim injunction at the instance of the appellant, as the same has not been questioned by the defendants so far, the said order may not be interfered with qua the defendants. I have carefully considered the submissions of the learned Counsel for the parties. Order XXXIX CPC confers power on the Courts to grant temporary injunctions and interlocutory orders. The Courts ordinarily exercise discretion in favour of the applicants while granting orders of injunctions wherever they satisfy the ingredients of all or any of the clauses (a) to (c) of Rule 1 of Order XXXIX CPC. Rule 3 of Order XXXIX CPC mandates that before granting the order of injunction, the Court shall in all cases except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. Rule 3 of Order XXXIX CPC mandates that before granting the order of injunction, the Court shall in all cases except where it appears that the object of granting injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. In cases where the Court is satisfied that the case does not brook the delay in issuing notice, it has to record reasons for granting an ad interim order before issuing notice, as envisaged by the proviso to Rule 3 of Order XXXIX CPC. As noted above, in I.A.No.1897/2013, the lower Court has granted an ad interim order before issuing notice by recording reasons restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs. Simultaneously, it has also passed an order in I.A.No.1896/2013 restraining the defendants from interfering with the construction of southern compound wall in Sy.No.309 by the plaintiffs. This Court is at a loss to understand the hurry with which the lower Court has acted in granting the ad interim injunction order in I.A.No.1896/2013. It has lent justification in granting ad interim injunction in I.A.No.1897/2013 by observing that as it has been prima facie satisfied that the plaintiffs have made out a case of ownership and their being in possession and that the very purpose of the suit will be defeated if ad interim injunction is not granted as there is likelihood of the defendants trying to dispossess the plaintiffs. Shockingly, in the order passed in I.A.No.1896/2013, same reasons have been given for granting injunction restraining the defendants from interfering with the construction of the compound wall. Indeed, a perusal of both these orders would show that the same are ipsissima verba without there being any variation between them. When the lower Court has granted ad interim order of injunction restraining the defendants from interfering with the possession of the plaintiffs, the said order will protect the interests of the plaintiffs in all respects, including their dispossession. Having already protected the plaintiffs from being dispossessed, it passes one’s comprehension as to how the same reason will constitute the basis for granting ad interim injunction to restrain the defendants from constructing the compound wall by the plaintiffs. The lower Court cannot be naïve not to understand the efficacy of its own order granting injunction against interference by the defendants. The lower Court cannot be naïve not to understand the efficacy of its own order granting injunction against interference by the defendants. Having granted such an order, there is no reason for the lower Court to grant the ad interim injunction order to facilitate construction of the compound wall by the plaintiffs even before notice is served on the defendants. As rightly pleaded by the learned Counsel for the appellant, the ad interim order granted by the lower Court is in the nature of an interim decree. Though theoretically the interim relief in the nature of main relief can also be granted by the Courts, as rightly submitted by Sri R.A. Achuthanand, the Courts should exercise a great deal of judicial discretion while granting such reliefs. An order restraining the defendants from interfering with the possession of the plaintiffs stands on a different footing from an order restraining the former from interfering with the latter’s right to raise construction. While the former relief could be granted by the Court based on prima facie material by recording reasons for dispensing with notice, in the latter category of cases, the Court should be conscious of the fact that ordering of notice would not defeat the purpose for which the suit is filed, for, the plaintiffs can wait for a few days or even a few weeks without constructing the compound wall as their interests have been firmly secured by way of an ad interim order of injunction to protect their possession. On the contrary, by granting such a relief the Court has allowed the plaintiffs to achieve their purpose even before the notice is served on the defendants. In my considered opinion, the lower Court has far too exceeded its jurisdiction in granting the ad interim injunction to facilitate construction of the compound wall by the plaintiffs even without notice to the defendants. The order passed by the lower Court borders on judicial impropriety and constitutes abuse of judicial discretion. As regards the submission of the learned Counsel for the respondents that the order passed against the defendants may be continued as they have not questioned the same, I am afraid, I cannot accept this submission. The order passed by the lower Court borders on judicial impropriety and constitutes abuse of judicial discretion. As regards the submission of the learned Counsel for the respondents that the order passed against the defendants may be continued as they have not questioned the same, I am afraid, I cannot accept this submission. When this Court is interfering with the order of the lower Court on the ground of impropriety, the order in its entirety must be set at naught, irrespective of whether the defendants have questioned the same or not. For the above mentioned reasons, the order impugned is set-aside. The appellant is permitted to file an application for his impleadment within two weeks from the date of receipt of this order. On such application being filed, the lower Court shall allow the appellant to come on record in the suit as well as in the above mentioned two Interlocutory Applications. The lower Court is directed to rehear I.A.No.1896/2013 relating to construction of the compound wall by the plaintiffs, and dispose of the same afresh. The Civil Miscellaneous Appeal is accordingly allowed. As a sequel to the disposal of the Civil Miscellaneous Appeal, CMPMP No.743/2014 is disposed of as infructuous.