Andhra Pradesh High Court - Amravati
B Munirathnam vs P Subbarayulu Reddy on 22 January, 2024
THE HON'BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON'BLE SMT JUSTICE SUMATHI JAGADAM
CIVIL MISCELLANEOUS APPEAL.No.17 of 2024
JUDGMENT:
(per A.V. Sesha Sai, J)
Heard Sri G.Ramesh Babu, learned counsel for the
appellants and Sri O.Uday Kumar, learned counsel for the
respondents.
2. The present Civil Miscellaneous Appeal
preferred under Order XLIII Rule 1 of the Code of Civil
Procedure, 1908 (for short 'The CPC') is against the Order,
dated 07.12.2023, passed by the Court of the X Additional
District Judge, Tirupati in I.A.No.150 of 2023 in O.S.No.28
of 2022. Plaintiffs in the aforesaid suit who are the
appellants herein instituted the said suit seeking to direct
the 1st defendant therein to execute a regular registered
sale deed in favour of plaintiffs. In the said suit, the
defendants/respondents herein filed Interlocutory
application vide I.A.No.150 of 2023 under the provisions of
Order XXXIX Rules 1 and 2 r/w Section 151 of the CPC
praying the Court to grant temporary injunction,
restraining the plaintiffs, their men, agents, servants or
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anybody claiming through or under it from in any way
interfering with the peaceful possession and enjoyment of
the petition schedule properties. Resisting the said
application, the plaintiffs/appellants herein filed a counter.
The learned X Additional District Judge, Tirupati by way of
Order, dated 07.12.2023, granted temporary injunction as
prayed for. The present appeal filed by the
plaintiffs/appellants herein challenges the validity and
legal sustainability of the said order.
3. According to the learned counsel for the
plaintiffs/appellants, the order passed by the learned X
Additional District Judge, Tirupati which is impugned in
the present appeal is highly erroneous, contrary to law and
opposed to the very spirit and object of the provisions of
Order XXXIX Rules 1 and 2 of the CPC. It is also the
submission of the learned counsel that the very application
filed by the defendants/respondents herein would not be
maintainable under the provisions of Clauses (a), (b) and
(c) of Rule 1 of Order 39 of the CPC. It is also the
submission of the learned counsel that the learned X
Additional District Judge, Tirupati ought to have seen that
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the respondents/defendants did not file any documentary
proof to demonstrate their possession and enjoyment over
the subject property.
4. On the contrary, the learned counsel for the
defendants/respondents, strongly resisting the appeal
submits that the application filed by the
defendants/respondents herein is certainly maintainable
under the provisions of Rule 1(a) of Order XXXIX of the
CPC and the learned Judge is perfectly justified in passing
the impugned orders having regard to the facts and
circumstances of the case. To support his contention,
learned counsel for the defendants/respondents places
reliance of the Judgment of the Hon'ble Apex Court in the
case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja
Seth Hiralal1.
5. In the above background, now the issue that
emerges for consideration of this Court under the
provisions of Order XLIII Rule 1 of the CPC in the present
appeal is :-
"Whether the order passed by the learned X Additional
District Judge, Tirupati which is impugned in the present
AIR 1962 SC 527
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appeal is sustainable and tenable and whether the said
order warrants any interference of this Court?"
6. Admittedly, the suit instituted by the appellants
herein is one for specific performance of contract of sale.
Resisting the present application filed under Order XXXIX
Rules 1 and 2 r/w Section 151 of the CPC, a counter came
to be filed by the appellants herein taking serious objection
as to the very maintainability of the application under the
provisions of Order XXXIX Rules 1 and 2 of the CPC.
7. In this context it may be appropriate and
relevant to refer to the provisions of Order XXXIX Rules 1
of the CPC. Order XXXIX Rule 1 of the CPC deals with the
cases in which temporary injunction may be granted.
Order 39 Rule 1 of the CPC reads as follows:-
Order-XXXIX, Rule-1 of the CPC. Cases in
which temporary injunction may be granted.-
Where in any Suit it is proved by affidavit or
otherwise:-
(a) that any property in dispute in a suit is in
danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in
execution of a decree, or
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(b) that the defendant threatens, or intends, to
remove or dispose of his property with a view to
defrauding his creditors,
(c) that the defendant threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit,
the court may by Order grant a temporary
injunction to restrain such act, or make such
other Order for the purpose of staying and
preventing the wasting, damaging, alienation,
sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing
injury to the plaintiff in relation to any property in
dispute in the suit as the court thinks fit, until
the disposal of the suit or until further orders.
8. A reading of Clauses (b) and (c) of Rule 1 of
Order XXXIX of the CPC makes it very much clear that the
said clauses are intended only for the purpose of
maintaining the application filed by the plaintiffs and not
by the defendants. Clause (a) of Rule 1 of Order XXXIX of
the CPC enables both the plaintiffs and the defendants to
make an application for injunction under the contingencies
mentioned therein namely when the property is in danger
or when there is threat of alienation by any party to the
suit.
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9. Learned counsel for the appellants takes
serious objection as to the maintainability of the very
application under the provisions of Order XXXIX Clause (a)
of Rule 1 of the CPC by contending that in the entire
affidavit filed in support of the application, the
contingences mentioned in Clause (a) of Rule 1 of Order
XXXIX of the CPC do not exist. The learned counsel for the
defendants/respondents on the contrary submits that the
present application is certainly maintainable under
Clause (a) of Rule 1 of Order XXXIX of the CPC.
10. A perusal of the order passed by the learned X
Additional District Judge, Tirupathi shows that this aspect
of maintainability of the application, taken by the
plaintiffs/appellants herein in the counter, missed the
attention of the learned Additional District Judge.
Therefore, this Court deems it appropriate to remand the
matter to the Court of X Additional District Judge, Tirupati
for consideration of the issue of maintainability
afresh after taking into consideration the provisions
of Order XXXIX Rule 1 of the CPC. It is open
for the appellants/plaintiffs as well as the
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defendants/ respondents to submit all the material for
consideration by the learned X Additional District Judge,
Tirupati.
11. For the aforesaid reasons, the Civil
Miscellaneous Appeal is allowed, setting aside the order,
dated 07.12.2023, passed by the Court of X Additional
District Judge, Tirupati in I.A.No.150 of 2023 in O.S.No.28
of 2022 and consequently, the said I.A.No.150 of 2023 in
O.S.No.28 of 2022 stands restored to file for consideration
of the same afresh and for passing appropriate orders
strictly in accordance with law, taking into consideration
the observations made supra, after giving opportunity to all
the stake holders. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this case,
shall stand closed.
__________________
A.V. SESHA SAI, J
_______________________
SUMATHI JAGADAM, J
Dated: 22.01.2024
TM
AVSS,J & JS,J
THE HON'BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON'BLE SMT JUSTICE SUMATHI JAGADAM
(per A.V. Sesha Sai, J)
Date:22.01.2024
TM
