Andhra Pradesh High Court - Amravati

Mumdru Rama Rao vs Mundru Kresha on 14 September, 2023

Bench: D.V.S.S.Somayajulu, Duppala Venkata Ramana

                                   1



         * HIGH COURT OF ANDHRA PRADESH: AMARAVATI

               HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU

                                  AND
        HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                       + C.M.A. No.135 of 2022
% 14.09.2023
#Mundru Ramarao and 5 others
                                                          ... Appellants
         Vs.
$Mundru Kresha and another
                                                         ... Respondents

! Counsel for the petitioners: Sri M.Chalapathi Rao

! Counsel for the Respondents : Sri P.S.P.Suresh Kumar

< Gist:

> Head Note:

? Cases referred:

AIR 1957 Madras, 1986

AIR 1986 Delhi 121

AIR 2013 Madras 80

AIR 1975 AP 187

(1996) 3 ALD 477

(2012) 5 SCC 370

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU AND HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

CMA.No.135 of 2022

JUDGMENT: (per Hon'ble Sri Justice D.V.S.S.Somayajulu)

This appeal is filed questioning the order dated 24.03.2022

in I.A.No.519 of 2021 in O.S.No.112 of 2021.

2. The suit O.S.No.112 of 2021 is filed by a minor and his

mother for partition of the suit schedule properties which are

quite extensive and valuable. There are 13 items of properties and

the first plaintiff is claiming a 4/13th share and the 2nd plaintiff is

claiming a 1/13th share apart from other reliefs. The second

plaintiff is the daughter-in-law of the defendant Nos.1 and 5.

Defendant Nos.2 to 4 are the daughter of defendant Nos.1 and 2

and the siblings of the second plaintiffs husband. Second

plaintiff's husband died intestate on 18.05.2020. Due to

subsequent developments the second plaintiff claims that she is

compelled to file this suit for partition as the defendants refused to

allow her into the residence. She also filed an interim application

under Order 39 Rule 1 CPC to restrain the alienation. A counter

is filed, leading to the impugned order being passed after hearing.

3. This Court has heard Sri M.Chalapathi Rao, learned counsel

for the defendants/appellants, who questions the order and Sri

P.S.P.Suresh Kumar for the respondents.

4. Learned counsel for the appellants argued the matter at

length and raised issues in line with this counter that items 1 to

13 are not proven to be ancestral or joint family properties or that

there is joint family nucleus at all. He contends that the suit

schedule properties are the self acquired properties of the first

defendant and he relies upon the Hindu Gains of Learning Act,

1930 and the case law under the said Act namely, Ramakrishna

Mardi and others v. Vishnumoorthi Mardi and others 1, Major

Pran Nath Kaushak v. Rajinder Nath Kaushik2,

K.Govindarajan v. K.Subramanian3 etc. It is his contention

that this vital aspect was overlooked by the trial Court. It is also

submitted that the prima facie case, balance of convenience etc.,

are not examined in the proper perspective.

AIR 1957 Madras, 1986

AIR 1986 Delhi 121

AIR 2013 Madras 80

5. In reply to this, Sri P.S.P.Suresh Kumar, learned counsel,

points out that the trial Court took a right decision to protect the

interest of the minor and her mother as there is a danger of the

property being alienated. He points out that even in the written

statement without giving adequate/proper details, it is mentioned

that items 1, 2, 3, 4, 5 and 11 are no longer available and they

were sold out. He submits that the impugned order is correct in

the facts and circumstances of the case and by preserving the

status quo, no harm will be caused to the defendants.

COURT:

6. This Court after hearing their contentions notices that the

affidavit in question filed in I.A.No.519 of 2021 sets out the facts

of the case. In paras 2 to 8, the facts are described. In para 9,

prima facie case and balance of convenience are touched upon and

in para 10 an injunction is prayed for. The counter filed however

is detailed and it raises several pleas.

7. The law is well settled that an injunction cannot be granted

for the mere asking. The petitioner will have to plead and prove

that an order is necessary in the case to preserve the existing

state of things/injury etc. till a final hearing takes place. The

petitioner must prima facie prove that there is a threat and the

need to protect the property from being alienated. Some pleading

and averment to that effect is needed for the Court to come to a

conclusion that an interim order is to be granted for protection of

the property and to preserve the status quo.

8. The trial Court relied upon the fact that some items of the

property were sold out i.e. items 1 to 5 and 11 and granted the

interim order. In the judgment relied upon in para 12, it is

noticed that during the pendency of the suit, defendant No.1

transferred the properties 2 and 3 and in turn they had

transferred the property in favour of third parties. Therefore, the

theory of lis pendens was held to be not enough and an order of

temporary injunction was granted. In the case on hand, this

Court finds that such a fact situation is available. Such pleading

is also not there. As mentioned earlier, the affidavit is absolutely

bereft of details. The case law relied on was not discussed let

alone distinguished. The issue of 'gains of learning' etc., is also

not discussed. It is also settled law that merely because a case is

filed or is likely to be filed a person cannot be deprived of his right

to deal with his property. It is noticed in this case that even

without the petitioners specifying that attempts are being made to

alienate the property, with a view to cause loss etc., an injunction

was granted. What is stated in the affidavit is that the property

was leased out to third parties and rent is being enjoyed.

Similarly, lands are also being rented and income is being enjoyed.

Therefore, the petitioner states that she is entitled to seek an

injunction. In para 8 of the affidavit, it is stated that the

petitioners are entitled to some particular shares. Other than

this, there was no averment that the property is being alienated or

that encumbrances are being created. Yet an injunction was

granted by the trial Court.

9. While the argument of Sri Suresh Kumar that the interest of

the minor need to be protected appears at first blush to be

appealing, the fact remains on the ground of this emotional

appeal, this Court cannot ignore the settled law. The issues

raised in the counter by the respondent were not discussed before

the Court came to a conclusion that there was a need to grant an

injunction. Without expressing anything further, the impugned

order is set aside in the circumstances of this case.

10. Before parting with the case, this Court has to state with

anguish that time and again bland/brief affidavits are being filed

for various reliefs, matters are being argued and orders are being

passed by Judges without considering the essential legal

ingredients in each of these cases. The importance needed to be

attached to these matters is found to be sorely lacking in a large

number of cases.

11. Both the lawyers drafting the affidavits/applications and the

Courts passing orders are under a bounden duty to be very

careful and diligent in such matters, since interlocutory matters

are mostly decided on affidavits.

12. Learned counsels who draft the applications for an

injunction must notice the settled law on the subject and draft the

affidavit with sufficient clarity and details. The danger or the

threat apprehended; the right infringed/likely to be infringed etc.,

should be explained with clarity to enable the Court to grant an

order depending upon the facts that are pleaded.

13. Bland affidavits without details are not enough to grant

relief. If there is a threat to the

dispossession/demolition/alienation, the threat should be

described with reasonable clarity. If there is a right infringed, the

manner of infringement should be spelt out with reasonable

clarity. The perceived injury must also be explained. These are

examples and not an exhaustive list. If the respondents are acting

in a manner contrary to law, that should also be described with

some amount of certainty. This would also enable the Court to

test the veracity of the case and to form an opinion.

14. As far as the Courts are concerned, they also have a duty to

carefully analyze the affidavits that are filed to decide if there is an

infringement or a threat leading to a need for an order of

protection. The manner in which the said infringement, threat

etc., are described should be considered. The likely injury must

be capable of being ascertained. There should be clarity before an

order is granted. Prima facie case; balance of convenience and

irreparable loss are not empty phrases. They each have a definite

connotation. Courts have a bounden duty to analyze these

aspects carefully. The Judges must pose these questions to

themselves and then look into the materials/pleadings/affidavits.

15. The Hon'ble High Court of Andhra Pradesh held as follows in

two cases:

1) "Nawab Mir Barkat Ali Khan v. Nawab Zulfiquar Jah Bahadur4

"14. It is well-settled that the grant or refusal of a temporary injunction is covered by three well established principles viz., (1) whether the petitioners have made out a prima facie case (2) whether the balance of convenience is in their favour i.e., whether it would cause greater

AIR 1975 AP 187

inconvenience to them if the injunction is not granted than the inconvenience which the opposite party or persons claiming through the opposite party would be put to if the temporary injunction is granted and (3) whether the petitioners would suffer irreparable injury. With the first condition as sine qua non, at least two conditions should be satisfied by the petitioners conjunctively and a mere proof of one of the three conditions does not entitle the petitioners to obtain a temporary injunction in their favour."

2) Sheela Harry v. Capt. Mohd. Mirza5

"43. In the case of T.A. George v. D.D.A. (3) AIR 1995 Delhi 131, the Delhi High Court observed that injunctions were a form of equitable relief and had to be adjusted in aid of equity and justice to the facts of each particular case. No Court had ventured to lay down absolute propositions and thereby forged fetters. However, some principles were too well entrenched and they were (1) Whether the petitioner had made out a prima facie case; (2) whether the balance of convenience was in his favour i.e. whether it would cause greater inconvenience to him if the injunction was not granted than the inconvenience which the opposite party or persons claiming through the opposite party would be put to, if the temporary injunction was granted; and (3) whether the petitioner would suffer irreparable injury. It was further observed that the mere circumstance that the party had a prima facie case did not necessarily mean that the order of temporary injunction must follow. The Court had also to consider the question of irreparable or serious injury and the balance of convenience. With the first condition as sine qua non, the party must satisfy at least two conditions conjunctively. A mere proof of one of

(1996) 3 ALD 477

the three conditions would not take the party out of woods."

(Emphasis supplied)

16. In the case of Maria Margarida Sequeira Fernandes and

others v. Erasmo Jack De Sequeira (dead) through LRs.6 the

Hon'ble Supreme Court of India was dealing with an application

for temporary injunction based upon possession. In paras 83 and

84, the Hon'ble Supreme Court 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 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."