Telangana High Court

Ganesh Rajesh vs Mallipeddi Hanumantha Reddy on 27 January, 2022

Bench: P Naveen Rao, G.Radha Rani

           HONOURABLE SRI JUSTICE P.NAVEEN RAO
                           AND
           HONOURABLE DR. JUSTICE G.RADHA RANI



         CIVIL MISCELLANEOUS APPEAL NO.39 of 2022

                          Date: 27.01.2022


Between:

Ganesh Rajesh, S/o Ganesh Subbaiah,
aged about 32 years, Occu: Business,
R/o.11-3-366/A/2, Srinivas Nagar,
Parsigutta, Secunderabad.
                                                       .... Appellant/
                                                    Respondent no.1/

Defendant no.1 And

1. Mallipeddi Hanumantha Reddy, S/o Mallipeddi Venkata Narasimha Reddy, Aged about 79 years, Occ: Agriculture, R/o.7-71/1 and 2, Street No.8, Maheshwari Nagar, Habsiguda, Hyderabad.

2. Mallipeddi Jayapradha, w/o.M.Hanumantha Reddy, Aged about 74 years, occu: Housewife, r/o.7-71/1 & 2, Street No.8, Maheshwari Nagar, Habsiguda, Hyderabad.

.... Respondents/ Petitioners/Plaintiffs

3. A.Varalakshmi, w/o. late E.K.Shajahan, Aged abou5 50 years, occu: Agriculture, r/o.4-8-64, APHB Family Quarters, Puthlibowli, Gowliguda, Hyderabad.

.... Respondent/ Respondent no.2/ Defendant no.2.

This Court made the following:

PNR,J & GRR,J CMA No.39 of 2022

HONOURABLE SRI JUSTICE P.NAVEEN RAO AND HONOURABLE DR. JUSTICE G.RADHA RANI

CIVIL MISCELLANEOUS APPEAL NO.39 of 2022

JUDGMENT: (per Hon'ble Sri Justice P. Naveen Rao)

This appeal is preferred aggrieved by the ad-interim ex parte

injunction granted by the Court of the II Additional District and

Sessions Judge, Ranga Reddy District, at L.B.Nagar on 05.01.2022

in Interlocutory Application No.16 of 2022 in O.S.No.11 of 2022.

2. Heard Sri Vedula Venkata Ramana, learned Senior Counsel

appearing on behalf of Sri D.B.Chaitanya, counsel for appellant,

and the learned counsel for respondents.

3. Respondent Nos.1 and 2 instituted O.S.No.11 of 2022

praying, (a) to grant decree for specific performance directing

defendant no.1 to execute and register sale deed in respect of suit

schedule 'A' and 'B' properties in favour of plaintiff nos.1 and 2

respectively, pursuant to a Declaration-cum-Undertaking dated

20.12.2021 conveying a clear and marketable title, and in default,

the court may be pleased to execute and register the sale deed in

favour of plaintiff nos.1 and 2; and (b) to direct the respondents to

confirm and ratify the physical and peaceful possession of plaintiff

nos.1 and 2 over the suit schedule properties, respectively.

4. Plaintiff Nos.1 and 2 filed Interlocutory Application No.16 of

2022 under Order XXXIX Rules 1 and 2 of Civil Procedure Code,

1908, praying to grant ad-interim injunction restraining defendant

no.1 or persons claiming through him from alienating or otherwise PNR,J & GRR,J CMA No.39 of 2022

encumbering the petition schedule properties by relying on Sale

Deed bearing Document No.515/2021 dated 01.11.2021, pending

disposal of the above suit.

5. Trial Court, while issuing notice to defendant no.1

returnable by 27.01.2022, restrained the defendant no.1 from

alienating or encumbering the petition schedule properties.

6.1. Learned Senior Counsel sought to contend that the Trial

Court erred in granting ad-interim ex parte injunction.

6.2. Learned senior counsel disputes appellant giving

Declaration-cum-Undertaking. The sale deeds disclose that

plaintiffs have executed the sale deeds after receiving full sale

consideration from vendor of the appellant. Further, the appellant

in turn paid full sale consideration to its vendors before

purchasing the said land. Therefore, their claim that additional

amount was due from their purchaser, and that appellant

undertook to pay the said amount and to that extent the disputed

Declaration-cum-Undertaking was executed, is wholly erroneous

and contrary to law.

6.3. He submits that by placing reliance on a false document, the

suit was instituted and the Trial Court erred in granting injunction

without affording opportunity to explain the stand of the appellant.

6.4. He further contends that the appellant is a bona fide

purchaser having purchased the suit schedule land from its

vendor, who in turn purchased the same from the original

landlord.

PNR,J & GRR,J CMA No.39 of 2022

6.5. Learned Senior Counsel contends that grave prejudice would

be caused to the respondents if such injunction order is not

vacated.

6.6. In support of his contention, learned Senior Counsel placed

reliance on the following decisions, viz., Kasuganti Anantarao and

another vs. Kasuganti Aruna and another1; Shiv Kumar Chadha

vs. Municipal Corporation of Delhi and others2; and

A.Venkatasubbiah Naidu vs. S.Chellappan and others3 and

referred to the grounds filed in support of the appeal.

7. What is under challenge is an ex parte ad-interim injunction

while issuing notice returnable by 27.01.2022. The trial Court

assigned reasons in support of the order granted on 05.01.2022.

Prima facie, we are satisfied that the Trial Court has complied with

the requirements of Order XXXIX Rule 3 of Civil Procedure Code,

1908, before granting ad-interim injunction order.

8. As directed by the trial Court, notice was served to the

appellant herein, and the case was ordered to be listed on

27.01.2022, i.e., to-day. But even before entering appearance and

filing counter-affidavit opposing further continuation of the

injunction order and even before the next date of hearing indicated

in the notice, this appeal is preferred. It is not known whether

appellant entered appearance before the Trial Court on

27.01.2022. The defendant ought to have contested the prayer to

grant injunction and oppose extension, without rushing to this

Court.

1985 (2) A.L.T. 339

(1993) 3 S.C.C. 161

(2000) 7 S.C.C. 695 PNR,J & GRR,J CMA No.39 of 2022

9. Ordinarily, remedy of appeal is not available against ex parte

ad-interim injunction. The defendant has to enter appearance and

contest the application. Only if a decision is made continuing the

injunction order or vacating the same, remedy of appeal is

available to an aggrieved party.

10. In A.Venkatasubbiah Naidu (supra), the Hon'ble Supreme

Court carved out exception to entertain an appeal even when

ordinary remedy available to an aggrieved person is to file counter-

affidavit and oppose extension of the ex parte interim orders

granted by the Trial Court or seek vacation of the interim orders

and then only can come to this Court. Para no.21 reads as under :

"21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2-A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3-A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."

11. In the case on hand, whether the Declaration-cum-

Undertaking relied upon by the plaintiffs in support of their claim

in the suit as well as the interlocutory application was executed by

the appellant or a false document is brought before the Trial Court

to make a false claim, is a matter for the Trial Court to consider.

This Court cannot express any opinion at this stage. Suffice it to

note that the trial court having looked into the contents of the said PNR,J & GRR,J CMA No.39 of 2022

document and having found that prima facie case was made out by

the plaintiffs, granted ex parte injunction while ordering notice.

Thus, it is not a fit case of an extraordinary circumstance

necessitating this Court to entertain the appeal even before the

issue is considered and appropriate orders are passed by the trial