Andhra Pradesh High Court - Amravati

Mohammad Arshad vs Jafar Ghori on 24 November, 2021

Bench: C.Praveen Kumar, Ravi Nath Tilhari

      THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                              AND

      THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                   C.M.A. No. 204 of 2021

ORDER:(Per Hon'ble Sri Justice C.Praveen Kumar)

1)     Assailing the Order, dated 26.03.2021, in I.A. No. 64

of 2021 in O.S. No. 40 of 2019, on the file of the II

Additional    District   Judge,   Srikakulam,     wherein,   the

application filed by the Petitioners/Plaintiffs under Order

XXXIX Rule 1 of Code of Civil Procedure, 1908, ['C.P.C.']

seeking temporary injunction was dismissed, the present

appeal came to be filed.

2)     The facts, in issue, are as under:

(i)    The Petitioners/Plaintiffs filed O.S. No. 40 of 2019

       seeking declaration of title and also permanent

       injunction restraining the Defendant, his men and

       agents from interfering with Item Nos. 1 to 3 of the

       Plaint Suit Schedule vacant site property. Along with

       the Suit, I.A. No. 64 of 2019 came to be filed for

       permanent injunction. In the application filed in

       support of the I.A., it is stated that the Petition

       Schedule Property belongs to Petitioner No. 1 and his

       sister, who is 2nd Petitioner herein. Petitioner No.1

       purchased Item No. 1 of the Plaint Schedule vacant

       site under a registered Sale Deed, dated 28.11.2011,
                                2


       from one Ahmed Ali. Insofar as Item No. 3 of the Plaint

       Schedule property is concerned, it is stated that the

       same was purchased by the father of the Petitioners

       under a registered Sale Deed, dated 13.08.1990, and

       that the said property fell to the share of Petitioner

       No.1 in an oral partition that took place between him

       and his brothers and sisters. Insofar as Item No. 2 is

       concerned, 2nd Petitioner claims to have purchased it

       under a registered Sale Deed, dated 24.06.1997. Thus,

       the Petitioner No.1 and 2 claim to be the absolute

       owners of the Plaint Schedule Property.

(ii)   The averments in the affidavit also refer to O.S.

       No.328 of 2012 filed by the Respondent herein against

the Petitioner No. 1 and another for permanent

injunction in respect of 33 ½ cents with specific

boundaries covered by T.S. No. 1952. It is stated that,

both the properties are not one and the same and they

are distinct and separate. It is said that, after

obtaining a decree of permanent injunction in O.S.

No.328 of 2012, efforts are being made to sell the

present Schedule Property to third parties under the

guise of aforesaid injunction. Hence, the Petitioners

seek temporary injunction restraining the Defendant

from interfering with the property.

3) Counters came to be filed disputing the averments

made in the affidavit filed in support of the petition. It is

stated that, the property, which is subject matter of dispute

in this case and the property in O.S. No. 328 of 2012, is one

and the same, which is evident from the boundaries

specified in the schedule. The Respondent/Defendant also

disputed the right of the Petitioners/Plaintiffs over the

property. Detailed counter came to be filed explaining the

stand of the Petitioners.

4) After considering the material placed before the court,

the Trial Court dismissed the application, which is

impugned herein.

5) Sri. G. Ramesh Babu, learned counsel for the

Appellants, relying on the judgment of the Hon'ble Supreme

Court in Gram Panchayat of Village Naulakha V. Ujagar

Singh and Others1 and a judgment of this court R.V.S.

Vara Prasad and others V. Dr. V. Ramdas2 submits that

the finding of the Trial Court in dismissing the application

in view of the earlier proceedings in O.S. No. 328 of 2012 is

illegal, improper and incorrect. He further submits that the

order of the Trial Court does not anywhere refer to the

documents filed by the Petitioners and, as such, the finding

that both the parties are claiming right over the same

property is without any basis. He further submits that the

(2000) 7 SCC 543

2003 (3) ALD 566 (DB)

reason given by the Trial Court is without any discussion

and, as such, pleads interference with the order impugned,

more so, when the same is not in conformity with Order

XXXIX Rule 1 C.P.C.

6) Sri. V. Sudhakar Reddy, learned Counsel for the

Respondent, opposed the same contending that when both

the properties are one and the same, which is evident from

the material on record, the C.M.A. is liable to be dismissed.

7) The point that arises for consideration is, whether the

Trial Court was right in dismissing the application filed by the

Petitioners?

8) It is well settled principle that, for grant of temporary

injunction three factors have to be satisfied, which are,

(i)prima facie case; (ii) balance of convenience; and

(iii)irreparable loss. The Hon'ble Apex Court in Dalpat

Kumar And Anr. V. Prahlad Singh And Others3,

explained these three factors, as under:-

"5.... Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one,

(1992) 1 SCC 719

namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

9) As seen from the material available on record, the

finding of the Trial Court that both the parties are claiming

right over the same property is without any reason. The

court below failed to consider the material placed before the

court in the form of Ex.P1 to Ex.P5. Since, the material

placed before the court was not considered in the manner

required under law and as the order does not given any

finding with regard to (i) prima facie case; (ii) balance of

convenience; and (iii) irreparable loss, we deem it

appropriate to set-aside the order impugned and remit back

the matter for fresh adjudication by the Trial Court.

10) Accordingly, the C.M.A. is allowed and the matter is