Kusampudi Srinivasu vs Uradala Edukondalu
2023 Latest Caselaw 5094 AP

           THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                         C.M.A.No.400 OF 2022

JUDGMENT:

The Appellants herein are the petitioners/ appellants/

plaintiffs before both the Courts below filed the present Civil

Miscellaneous Appeal before this Court.

2. Aggrieved by the order dated 07.09.2022 in I.A.No.133 of

2022 in A.S.No.5 of 2022 on the file of the Court of the III

Additional District Judge, Bhimavaram (in short 'the first appellate

court').

3. Initially the appellants filed Appeal in A.S.No. 5 of 2022

aggrieved by the Judgment and Decree dated 24.01.2022 passed in

O.S.No. 54 of 2015 on the file of the Court of the Principal Junior

Civil Judge, Bhimavaram (in short ' the trial court'), which was

filed for the relief of permanent injunction against the

respondents/ defendants and for declaration of title and for

mandatory injunction for removal of the brick wall said to be

highhandedly constructed by the respondents/ defendants therein.

In the said appeal, an application vide I.A.No.133 of 2022 has been

filed under order 39, rule 1 and 2 CPC seeking temporary

injunction restraining the respondents and their men from ever

interfering with their peaceful possession and enjoyment of the

petition schedule property till the disposal of the main appeal,

which was dismissed. Therefore the present C.M.A came to be filed

before the court below.

4. Heard Mrs. Kavitha Gottipati, learned counsel for the

appellants and Mr. K.K.Durga Prasad, learned counsel for the

respondents.

5. During hearing learned counsel for the appellants would

contend that the court below failed to take into consideration of the

fact that the respondents though specifically stated in I.A.No.7 of

2022 in I.A.No. 133 of 2022 that they never proclaimed that taking

advantage of Summer Vacation to the courts, that they will try to

remove the neem tree and others alleged to have been situated in

the alleged petition schedule property. There is no need or

necessity for the respondents to make any such proclamations or

any trials as alleged in the affidavit. After dismissal of the

injunction application they have highhandedly trespassed into the

property and cut the mango and need trees, which show the

intention of the respondents to interfere with appellants' peaceful

possession and enjoyment of the petition schedule property. It is

further contended that the result of the suit is pending

consideration in the appeal and that it has no bearing on the

injunction application filed by the appellants and the first appellate

court linked up the issues and dismissed the application on

erroneous grounds. Therefore the C.M.A is liable to be allowed.

6. In support of the contention of the appellants, learned

counsel for the appellants placed on record the decision of Hon'ble

Apex Court in "Tayabbhai M. Bagasarwalla and another vs.

Hind Rubber Industrial Private Limited"1, wherein the Hon'ble

Apex Court following the decision of "Hadkinson v. Hadkinson2"

held as follows:

"a party who knows as order, whether it is null or valid, regular or irregular, cannot be permitted to disobey it".

It is also therein that "if a party wilfully flouts an order of the court then such party can expect no equitable relief from the court. Such a party must be made to bear the consequences of his action".

"The court found "the work earlier out....is after the injunction order and hence is in breach of it".

In "Esha Ekta Appartments CHS Ltd., and Others v. The

Municipal Corporation of Mumbai and Another"3 wherein the

Hon'ble Apex Court, held as follows:

"14. We have considered the respective submissions and carefully scrutinized the record. The scope of the appellate Court's power to interfere with an interim order passed by the Court of first instance has been considered by this Court in

19.02.1997

(1952) AII ER 567

S.L.P.No.33471 of 2011, dated 29.02.2012

several cases. In Wander Ltd. v. Antox India (P) Ltd 1990 Supp SCC 727, the Court was called upon to consider the correctness of an order of injunction passed by the Division Bench of the High Court which had reversed the order of the learned Single Judge declining the respondent's prayer for interim relief. This Court set aside the order of the Division Bench and made the following observations:

"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 that 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 justify interference with the trial court's exercise of discretion."

5. In Skyline Education Institute (India) Pvt. Ltd. v. S.L.

Vaswani (2010) 2 SCC 142, the 3-Judge Bench considered a somewhat similar question in the context of the refusal of the trial Court and the High Court to pass an order of temporary injunction, referred to the judgments in Wander Ltd. v. Antox India (P) Ltd (supra), N.R. Dongre v. Whirlpool Corpn. (1996) 5 SCC 714 and observed: "The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration

of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."

And also in the case of "Sri Shadakshari C.L and others v.

Sri Santhosha"4, wherein the High Court of Karnataka at

Bengaluru held as follows:

"9.......If the trial court has not given clear findings as regards possession, it is better to grant an order of temporary injunction if it was in operation till disposal of the suit".

In "Poona Ram v. Moti Ram (Dead) through L.Rs and

Others"5 wherein the Hon'ble Apex Court held as follows:

"13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (i) undisturbed, and (iii) to the knowledge of the

MFA No. 667 of 2022 (CPC) dated 05.09.2022

Civil Appeal No. 4527 of 2009, dated 29.01.2019

owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case".

7. Whereas, learned counsel for the respondents mainly

contended that the first appellate court rightly discussed and held

that the appellants have to show the threat of invasion by the

respondents into their lawful possession and enjoyment of the

schedule property. Upon perusal of the petition, the first appellate

court did not find any plausible reason to accept the possession of

the petitioners over the petition schedule property. Hence,

dismissed the application by the first appellate court and that the

C.M.A is not maintainable and same is liable to be dismissed.

8. In support of contention of the respondents, learned

counsel for the respondents placed on record the decision of the

Hon'ble Apex Court in "Bokaro and Ramgur Ltd., v. The State

Bank of Bihar and Another"6, wherein at Para 4, it was held as

follows:

"Before a party can complain of an infringement of his fundamental right to hold property he must establish that he has

AIR 1963 SC 516

title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted for examined, an enquire under S.4(h) of the Bihar Land Reforms Act (1 of 1950), he cannot put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his rights in or to that property have been improperly or illegally infringed could arise.

9. Further he relied on a case "Mundru Ramarao and 5

others v. Mundru Kresha and another"7, wherein the learned

Division Bench of this Court discussed catena of decisions of

various High Courts and also the Hon'ble Supreme Court. The

Hon'ble Division Bench of this Court at para 16 in the judgment,

categorically discussed the case of "Maria Margarida Sequeira

Fernandes and Others v. Erasmo Jack De Sequeira (dead)

through LRs"8 wherein, it was held as follows:

"83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. (emphasis supplied).

84. In order to grant or refuse injunction, the judicial officer or the Judge must carefully examine the entire pleadings and documents with utmost care and seriousness. The safe and

CMA No. 135 of 2022, dated 14.09.2023

(2012) 5 SCC 370

better course is to give a short notice on the injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex parte ad interim injunction."

17. These cases are being cited as an example since this Court is of the opinion that both the learned counsels who draft affidavits and the Judges who pass orders should be very conscious of the fact that clear averments are necessary in interlocutory applications to enable the Courts to pass interim orders based upon affidavits only. It is hoped that these observations are followed in letter and spirit. The anguish expressed by the Hon'ble Supreme Court that prima facie case; balance of convenience; and irreparable loss are not rhetorical phrases for incantation, should be kept in mind. These are the factors to be kept in mind while drafting affidavits and are the factors to be kept in mind by Judges while granting temporary injunctions. Neither the learned lawyers nor the learned Judges should ever lose sight of these vital ingredients. As held by the Hon'ble Supreme Court, the fate of a case is often decided by the grant or refusal of an interim order. Hence, the need for care and caution in these matters is being highlighted in this order; once again.

10. Perused the record.

11. As could be seen from the first appellate court held that

undoubtedly appeal is continuation of the suit but to get a

discretionary relief of temporary injunction the appellant must

establish the error apparent on the face of the judgment of the trial

court even though they could place sufficient evidence to prove

their title and possession over the petition schedule property.

Further the appellants have to show the threat of invasion by the

respondents in to their lawful possession and enjoyment of the

schedule property.

12. Both sides relied on catena of decisions cited supra in

support of their respective contentions. However, the first appellate

court dismissed the impugned application on 16.09.2022, since

then no injunction is in force and no hindrance caused to any of

the parties till date. Now the appellants are vehemently contended

that there is a threat of dispossession, which is unbelievable in

view of the reason stated supra. The issue involved in the

impugned application shall also be considered in the main appeal

itself, as there are rival contentions between each other and it

reflects on the main appeal itself. It is contended by the learned

counsel for the appellants, throughout the suit proceedings interim

injunction is in force, therefore the same order shall be continued

in Appeal also.

13. However, this court finds that it is quite reasonable to

decide the main Appeal on merits within six (06) months from the

date of receipt of a copy of this order and further both the parties

are directed to co-operate with the first appellate court for disposal

of the appeal at the earliest. In the meantime, both parties are

directed to maintain status quo as on date, till the disposal of the

appeal.

14. With the above direction, the Civil Miscellaneous Appeal

is disposed of, while setting aside the impugned order dated

16.09.2022. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

___________________________ DR.K. MANMADHA RAO, J

Date: 18.10.2023

KK

THE HON'BLE DR. JUSTICE K. MANMADHA RAO

C.M.A.No.400 OF 2022

Date: 18.10.2023

KK