Kotha Chinna Annaiah, vs Arya Pranay Kumar Reddy,
2021 Latest Caselaw 2225 AP

Citation : 2021 Latest Caselaw 2225 AP
Judgement Date : 30 June, 2021

Andhra Pradesh High Court - Amravati

Kotha Chinna Annaiah, vs Arya Pranay Kumar Reddy, on 30 June, 2021

           THE HONOURABLE SRI JUSTICE D.RAMESH

             CIVIL REVISION PETITION No.635 of 2021

ORDER:-

1.    Present Revision Petition is filed by the petitioner/plaintiff,

questioning the docket order dated 30.04.2021 in unnumbered C.M.A.

No._of 2021 vide CFR No.1844 of 2021 on the file of the III Additional

District Judge, Kurnool at Nandyal under rule 56 read with section 151

of C.P.C. wherein the learned III Additional District Judge has dismissed

the appeal filed by the plaintiff/petitioner, on the ground that there is no

positive or negative orders passed by the trial court to maintain the

C.M.A. as held by the High Court of Gauhati.

2.    The petitioner/plaintiff filed a suit in O.S.No.31 of 2021 on the file

of the Principal Senior Civil Judge, Nandyal and in the said suit the

petitioner has filed I.A.No.71 of 2021 under Order 39 Rule 1 and 2

seeking for temporary injunction restraining the respondents 1 and 2,

their men, agents, assignees, legal heirs etc. from trespassing into

petition A and B-schedule properties and dispossessing the petitioner

from petition A and B-Schedule properties.

4. The trial court after hearing the arguments has passed the

following order, which reads as follows:

" Sri VRCR Advocate for petitioner/plaintiff filed a petition and prays to grant temporary injunction restraining the respondents 1 and 2 their men, their agents, assignees, legal heirs etc., from trespassing into A and B schedule properties and dispossessing petitioner from petition A and B Schedule properties and interfering with the peaceful possession and enjoyment of the same by petitioner till the disposal of the suit. No COP is pending."

5. For grant of a temporary injunction under Order 39 Rule 1 and 2

the petitioner herein referred an appeal before the III Additional District

Judge, Kurnool, but the same was dismissed on 30.04.2021 through

docket order dated 30.04.2021, which reads as follows:

"Heard the counsel for the petitioner. It is strange the petitioner filed this out of order petition to number the CMA against the orders passed in I.A.No.71/2021 in O.S.No.31/2021 on the file of Principal Senior Civil Judge, Nandyal. A perusal of the orders the learned Principal Senior Civil Judge, Nandyal ordered notice for the respondents without passing any executable order. Though the learned counsel for the petitioner relied on a decision between Sajjan Kumar Tharad Vs. Smt. Deoris Marbaniang reported in AIR 2011 0 (Gau) 47, and contended that the CMA is maintainable, I find the contention of the learned counsel for the petitioner is devoid of any force. In the case on hand no positive or negative passed by the trial court to maintain the CMA as held by the Hon'ble High Court of Gauthati.. The Principle laid down in the above said decision is not applicable to the present facts of the case. Since the proposed CMA itself is not maintainable. The question of entertaining out of order petition is meaningless. I do not find any force the contention of the learned counsel for the petitioner. Much less merits in the petition. In the result, this petition is dismissed."

6. The present revision petition is filed on the ground that the order of

the appellate court is contrary to the ratio laid down by the High Court of

Gouhti in Sajjan Kumar Tharad Vs. Smt. Deoris Marbaniang1.

7. Learned counsel for the petitioner has relied mainly on the para

Nos.15, 16 and 21 of the said judgment.

8. In view of the ratio laid down by the honourable High Court of

Gouhati, wherein it is categorically held that the appeal against the order

of notice to the opposite party under Order 39 Rule 3 Code of Civil

Procedure is maintainable. Apart from that it is also held that power to

grant and not to grant an injunction is vested in the Court under Order

39 Rules 1 and 2, and Rule 3 is only procedural safeguards and that

AIR 2011 0 (Gau) 47