Telangana High Court
Khaja Faizuddin vs Khaja Mujeebuddin 2 Others on 22 December, 2021
Bench: A.Venkateshwara Reddy
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CMA No.811 of 2013
JUDGMENT:
1. This Civil Miscellaneous Appeal is filed against the order dated
23.08.2013 in IA No.814 of 2013 in AS No.63 2010 on the file of
learned V Additional District Judge at Warangal.
2. The appellant herein is the plaintiff in OS No.2 of 2010 on the
file of learned II Additional Junior Civil Judge, Warangal. He filed
the said suit for permanent injunction restraining the respondents/
defendants from interfering with his peaceful possession and
enjoyment over the suit schedule property. After full length trial, the
suit in OS No.2 of 2001 was decreed on 03.04.2010. As per para-44
of the judgment, the trial Court gave a clear finding that the
appellant/plaintiff is in possession and enjoyment of the plaint
schedule property. Aggrieved thereby, an appeal was filed, vide AS
No.63 of 2010 by the respondents/defendants before the learned V
Additional District Judge, Warangal.
3. It is pertinent to note that in the said appeal, they did not seek
suspension of judgment of the trial Court in OS No.2 of 2001 and
instead, they have filed IA No.814 of 2013 under Order-XXXIX,
Rules-1 & 2 r/w Sec.151 CPC to restrain the plaintiff from causing
damage, changing the nature of property or changing the physical
features of the schedule house by taking up any construction till
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CMA No.811 of 2013
disposal of the appeal. By the order impugned dated 23.08.2013, the
lower appellate Court has allowed the said application. Aggrieved
thereby, the present appeal is preferred.
4. In the order impugned, the lower appellate Court has only
discussed whether the wife of plaintiff/appellant herein is a necessary
party to the suit and there is no discussion either on merits of the case
or on the issue whether the defendants/respondents herein have made
out a prima facie case in their favour, the existence of balance of
convenience or irreparable loss and injury. As per the records, this
Court has admitted this appeal on 23.09.2013 and further ordered,
"status quo" existing as on that day to be maintained. Later, after
hearing both sides, vide CMA MP No.1711 of 2013 that petition was
allowed and the order dated 23.09.2013 in CMA MP No.1711 of 2013
is modified and the order passed by the lower appellate Court on
23.08.2013 in IA No.814 of 2013 in AS No.63 of 2010 i.e., the order
impugned is stayed.
5. The learned counsel for the appellant/plaintiff seeks to submit
that when there is a clear finding by the trial Court about the
possession of the plaintiff over the suit schedule property, the lower
appellate Court erroneously passed the order impugned and it is not
sustainable. Unless and until the judgment and decree of the trial
Court is set aside, no such injunction under Order-XXXIX, Rules 1 &
2 CPC is maintainable against the plaintiff who is in peaceful
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CMA No.811 of 2013
possession of the suit schedule property and further submitted that the
lower appellate Court may be directed to dispose of the appeal suit
itself by fixing time line.
6. Having regard to the nature of dispute involved, as the appeal is
pending before the lower appellate Court since the year 2010 and this
Court has stayed the operation of the order impugned in IA No.814 of
2013 in AS No.63 of 2010 since on 14.11.2013 onwards, I deem it fit
to give such a direction to the lower appellate Court.
7. In the result, the Civil Miscellaneous Appeal is allowed and the
impugned order dated 23.08.2013 in IA No.814 of 2013 in AS No.63
of 2010 on the file of V Additional District Judge, Warangal, is set
aside. The lower appellate Court is hereby directed to dispose of the
appeal suit in AS No.63 of 2010 itself within three months from the
date of receipt of a copy of this order. However, there shall be no
order as to costs. Miscellaneous applications, if any pending in this
appeal shall stand closed.
_______________________________
A. VENKATESHWARA REDDY, J.
Date: 22.12.2021
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