Andhra Pradesh High Court - Amravati

Dhanekula Vara Prasad, vs Bobba Anitha, on 22 November, 2022

       HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

           CIVIL REVISION PETITION No.1420 of 2022

   Between:

   Dhanekula Vara Prasad, S/o Paparao, Hindu,
   aged about 66 years, Properties, D.No.6-3-
   662/7/102, Jaffari Ali Bagh, Sudha Enclave,
   Somajiguda, Hyderabad and 7 others.

                                                    ... Petitioners.
               Versus

   Bobba Anitha, W/o Siva Prakash, Hindu, aged
   about 50 years, Properties, R/o Plot No.14,
   Road No.2, Bharathi Nagar, Vijayawada -
   520008.

                                                   ... Respondent.


Counsel for the petitioners            : Sri Satyanarayana Dhara
Counsel for respondent No.1            : Sri K.V.Aditya Chowdary

                               ORDER

Plaintiffs in the suit filed the above revision against the

order dated 07.04.2022 in C.M.A.No.10 of 2020 on the file of

V Additional District Judge, Vijayawada reversing the order

dated 17.03.2020 in I.A.No.683 of 2019 in O.S.No.2039 of

2019 on the file of III Additional Junior Civil Judge,

Vijayawada.

2. Plaintiffs filed suit O.S.No.2039 of 2019 against the

defendant seeking perpetual injunction.

3. The case of the plaintiffs, in brief, is that Dhanekula

Sitaramaiah and Dhanekula Paparao are father and son; that

said Sitaramaia and Paparao partitioned their ancestral

properties on 18.01.1940 and the same was registered; that

out of said partition, total extent of Ac.6.04 cents in

R.S.No.368/3 fell to the share of Paparao; that said Paparao

sold away Ac.1.56 cents to one Tullimilli Kotaiah and also

sold away Ac.1.24 cents; that remaining extent of Ac.3.24

cents, vacant site, is in possession and enjoyment of said

Paparao; that Paparao blessed with five sons and one

daughter; that one son Dhanekula Bhaskararao died

intestate on 04.03.2016 leaving behind him his wife, 3rd

plaintiff and daughters, plaintiffs 4 and 5 as his legal heirs;

that another son Dhanekula Ramalingeswara Rao also died

intestate on 17.12.1995, leaving behind him his wife, 6th

plaintiff and daughters, plaintiffs 7 and 8 as his legal heirs;

that two more sons Dhanenuka Venkata Subbarao and

Dhanekula Veera Raghavarao died issueless on 05.08.1987

and 03.10.1989 respectively; that Dhanekula Paparao died

intestate on 30.10.1989 leaving behind his wife

Kutumbamma and the plaintiffs as his legal heirs; that

defendant is the owner of East-South corner land of plaint

schedule property; that defendant tried to encroach into the

plaint schedule property about 300 square yards and hence,

the suit was filed seeking perpetual injunction.

4. Pending the suit, I.A.No.683 of 2019 was filed seeking

injunction restraining the defendant from making

constructions. The averments in the plaint were reiterated in

the affidavit filed along with petition and contended that

defendant is making construction.

5. Counter was filed by the defendant denying the title of

the plaintiffs over the schedule property. It was contended

interalia that plaintiffs failed to prove prima facie case,

balance of convenience and irreparable loss. Defendant

pleaded purchase of plot in his possession and also

contended that late Papa Rao himself laid plots and sold one

to his vendor and prayed the Court to dismiss the petition.

6. Trial Court by order dated 17.03.2020 granted

temporary injunction restraining the respondent and her men

not to raise any construction in south-east corner of plaint

schedule property pending disposal of suit. Against the said

order, C.M.A.No.10 of 2020 was filed. Lower appellate Court

by order dated 07.04.2022 allowed the appeal and dismissed

I.A.No.683 of 2019 in O.S.No.2039 of 2019. Aggrieved by the

same, the above revision is filed.

7. Heard Sri Sri Satyanarayana Dhara, learned counsel for

petitioners and Sri K.V.Aditya Chowdary, learned counsel for

respondent.

8. Learned counsel for the petitioners would submit that

petitioners being owners of property proved prima facie case,

balance of convenience and irreparable loss sine qua non for

grant of injunction. Counsel further submits that Appellate

Court without considering the material on record, allowed the

appeal and dismissed the I.A. Counsel further submits that

Appellate Court failed to consider partition deed of 1940 and

thus, prayed the Court to set aside the order in CMA.

9. Learned counsel for respondent, on the other hand,

supported the order of the lower appellate Court.

10. Now, the points for consideration are:

1) Whether the order in C.M.A.No.10 of 2020 warrants interference of this Court?

2) Whether the plaintiffs proved prima facie case, balance of convenience and irreparable loss for grant of injunction?

11. Suit O.S.No.2039 of 2019 was filed for grant of

perpetual injunction. Plaint schedule property is an extent of

Ac.3.24 cents of vacant site in R.S.No.368/3, new

R.S.No.368/3B in Gunadala, Vijayawada. Along with plaint,

registered partition deed dated 18.01.1940 was filed. Before

the Trial Court, during the enquiry of interlocutory

application as per appendix of evidence, no documents were

marked on either side. However, counsel for the respondent

would contend that in spite of filing of documents, trial court

did not mark those documents in I.A.

12. Learned counsel for respondent/defendant would

contend that entire extent of land was divided into plots and

the plaintiff came to the Court with unclean hands. In the

written arguments filed by the respondents/appellants before

in CMA, it was specifically contended that the documents

filed in the trial Court were neither considered nor marked as

exhibits. In fact, notarized copy of sale deed, whereunder he

purchased plot admeasuring 586 square yards in unapproved

layout of plots laid by father i.e. D.Paparao was filed. Initially

D.Papa Rao sold to A.Mohanarao under a registered sale deed

dated 7-3-1981. From A.Mohan Rao respondent/defendant

purchased the plot under registered sale deed. In the

document Western and Northern boundaries are shown as 33

feet road. Though these documents were filed, for the reasons

best known, they were not marked as exhibits in I.A.No 683

of 2019. In the miscellaneous appeal Seven documents were

filed along with C.M.A.No.10 of 2020.

13. Whether marking of documents are necessary, at

the stage of enquiry, in interlocutory applications?

14. In T. Bhoopal Reddy and Anr. Vs. K.R. Laxmi Bai

and Ans.1, the Division Bench of the composite High Court of

Andhra Pradesh held that despite the absence of any specific

rule so far as marking of documents in an interlocutory stage

is concerned, the Courts would not be justified in not giving

1998 (1) ALT 292

any marking at all to such of the documents on which both

sides would rely.

15. The above judgment was followed by another Division

Bench in R.Parijatham Vs M.Kameshwari2.

16. When the defendant filed certified copies of documents

trial Court ought to have considered those documents by

giving exhibit numbers. However, for the reasons best known

the trial court did not mark the documents relied upon by

either of the parties. This court is of the considered opinion

that in view of the authoritative pronouncements by Division

Benches of composite high court the trial court ought to have

marked by the documents. Without marking the documents,

trial Court considered I.A. and such a course should be

avoided.

17. Trial Court recorded the following reasons to grant

injunction.

1) Defendant having pleaded title did not give

undertaking qua raising construction in the

schedule property.

2017 (5) ALD 348

2) To avoid multiplicity of litigation and to preserve

property until disposal of suit, right of defendant

shall no way be effected by a mere temporary

injunction.

18. No finding was recorded by the trial court while

granting injunction about prima facie case, balance of

convenience and irreparable loss.

19. In Gujarat Bottling Company Limited and others Vs.

Coca Cola Company Limited and others3, the Hon'ble Apex

Court observed as follows:

"43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trail on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be

(1995) 5 SCC 545

adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an under taking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."

20. In Kashi Math Samsthan Vs. Shrimad Sudhindra

Thirtha Swamy4, the Hon'ble Apex Court held thus:

16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court.





    (2010) 1 SCC 689


21.      In     Seema      Arshad      Zaheer      Vs.     Municipal

Corporation of Greater Mumbai5                 it was observed as

follows:

"29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the Plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the Plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the Plaintiff's rights is compared with or weighed against the need for protection of the Defendant's rights or likely infringement of the Defendant's rights, the balance of convenience titling in favour of the Plaintiff; and (iii) clear possibility of irreparable injury being caused to the Plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the Plaintiff's conduct is free from blame and he approaches the court with clean hands".

22. A conspectus of the above authorities would disclose

that the plaintiff, seeking for interim relief of injunction,

should satisfy the prima facie case, balance of convenience

and irreparable loss.

23. In the case on hand as discussed supra, trial Court did

not record findings about prima facie case, balance of

convenience and irreparable loss sine qua non for grant

injunction.

(2006) 5 SCC 282

24. Against the said order, defendant filed C.M.A.No.10 of

2020. Along with the appeal, as can be seen from the appeal

grounds filed along with revision, seven documents were filed.

Out of those seven documents, registered sale deed dated

07.03.1981 executed by D.Papa Rao in favour of A.Mohan

Rao; registered sale deed dated 07.04.2003 executed by

A.Mohan Rao in favour of Defendant; regularization of

unapproved lay-out etc., are filed.

25. In Wander Ltd. v. Antox India (P) Ltd.6, the Apex

Court held as follows:

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not

1990 (Supp) SCC 727

justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : [1960] 3 SCR 713said :

... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.

The appellate judgment does not seem to defer to this principle."

26. In Civil Miscellaneous Appeal, Appellant filed written

arguments and, also documents which were filed in I.A.

Those documents include sale deeds and layout approval etc.,

As discussed supra, trial Court neither discussed legal

principles nor considered the documents filed. Trial Court, in

the considered opinion of this Court, ignored settled legal

principles and granted injunction. When the trial Court

ignored settled legal principles, Appellate Court is duty bound

to consider the available material on record independently.

27. In the case on hand, lower appellate Court after

considering the material available on record, recorded

findings and set aside the order of the trial Court granting

injunction by order dated 07.04.2022. Lower appellate Court

did not substitute its opinion. In fact, lower appellate Court

considered the documents set aside the order of injunction.

Against, the said order, the present civil revision is filed

under Article 227 of the Constitution of India.

28. In Jai Singh Vs. Municipal Corporation of Delhi7, the

Hon'ble Apex Court held as follows:

42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in Estralla Rubber v. Dass Estate (P) Ltd. [(2001) 8 SCC 97] wherein it was observed as follows:

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record.

The High Court can set aside or ignore the findings of

1990 (Supp) SCC 727

facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

29. A perusal of the material papers filed along with the

revision and counter affidavit would disclose that plaintiffs

without disclosing the alienation made by Dhanukula Papa

Rao filed the above suit for inunction for entire extent of Ac.

3.24 cents in S.No.368/3B. However, as can be seen from the

documents, D.Paparao himself laid the plots and sold the

plots. One such plot was sold to vendor of plaintiff under

registered sale deed 07.03.1981 who in turn sold the same to

the defendant under a registered sale deed dated 07.04.2003.

Thus, plaintiffs came to the Court by not disclosing the

alienation of plot by Dhanekula Paparao. Plaintiffs also failed

to prove prima facie case and balance of convenience sine qua