Telangana High Court

Pandu Naik Devidas Naik vs Jeevla Naik on 5 March, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

             Civil Revision Petition No.281 OF 2024
ORDER:

Aggrieved by the order and decree dated 10.08.2023

(hereinafter will be referred to as 'impugned order') in CMA

No.33 of 2022 passed by the learned III Additional District and

Sessions Judge, Sangareddy District, the respondents/

defendants i.e., revision petitioners herein filed the present Civil

Revision Petition to set aside the impugned order.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the trial Court i.e., learned

Senior Civil Judge, Zaheerabad.

3. The brief facts of the case as can be seen from the record

available before the Court are that petitioner/plaintiff filed

O.S.No.24 of 2022 before the learned Senior Civil Judge at

Zaheerabad for the relief of perpetual injunction restraining the

respondents/defendants from interfering with his possession

and enjoyment in respect of the suit schedule property. Along

with the said suit, the petitioner/plaintiff has filed I.A.No.347 of

2022 in O.S.No.24 of 2022 seeking ad interim exparte

injunction restraining the respondents/defendants from

interfering with his possession and enjoyment in respect of the 2 MGP,J Crp_281_2024

suit schedule property. The contention of the

petitioner/plaintiff before the trial Court as can be seen from

the affidavit filed in support of the petition in I.A.No.347 of 2022

are as under:

a) Respondent No.1 is the husband of respondent No.7,

Respondent No.2 is the husband of respondent No.8.

Respondent Nos.4 to 6 are the sons of respondent No.1.

Respondent No.3 is the mother of respondent Nos.1 and 2.

Respondent No.3 is the second wife of petitioner/plaintiff.

b) The petitioner/plaintiff is the owner of the suit schedule

'A' to 'C' properties, which are his self acquired properties.

Earlier, the respondent Nos.1 to 3 filed a suit for partition vide

O.S.No.86 of 2009 on the file of Special Sessions Judge for Trial

of Offences under SC/ST (POA) Act - cum V Additional District,

Medak at Sangareddy against the petitioner/plaintiff and his

wife Sali Bai and their children, however, the same was

dismissed on the ground that the petitioner/plaintiff is the

owner of the suit schedule lands therein that are subject matter

in the present suit. The Court also declared that respondent

No.3 is the second wife of the petitioner/plaintiff.

3 MGP,J Crp_281_2024

c) There was no coparcenary property inherited by the

petitioner/plaintiff. The father of the petitioner/plaintiff late

Vasuram acquired some of the properties with his own self

exertion. During his life time, the father of the

petitioner/plaintiff partitioned his properties among his three

sons. The petitioner/plaintiff did petty civil contracts and he

was elected as Samithi President. The petitioner/plaintiff

acquired some suit schedule properties out his own source and

also gave Ac.6.00 guntas of land to respondent Nos.1 to 3 and

the said lands were not made subject matter of the suit.

d) The respondents/defendant have no right or interest in

the suit land. The respondents/defendant have developed

jealousy against the children of Sali Bai and as they are well

educated the suit schedule lands shall be given to them only

and thus, they are not allowing the petitioner/plaintiff to

cultivate his lands. The respondents/defendants obstructed the

petitioner from carrying out agricultural operations on

19.06.2022 and on that the petitioner/plaintiff filed complaint,

which was registered as a case in Crime No.42 of 2022 of

Nagaligidda Police Station. On 07.07.2022 also the

respondents/defendant caused obstruction to the

petitioner/plaintiff in sowing, as such, a case in Crime No.130 4 MGP,J Crp_281_2024

of 2022 of Narayankhed Police Station was registered. The

respondents/defendants have no manner of right to interfere

with the possession and enjoyment of the petitioner/plaintiff

over suit lands. The respondents/defendants are not class - I

heirs of father of the petitioner/plaintiff. The Court held that

the suit schedule properties are self acquired properties. As the

respondents/defendants have no right or interest over the suit

land, their interference with the petitioner/plaintiff over suit

schedule lands is illegal and unauthorized. The

petitioner/plaintiff has prima facie case, balance of convenience,

title and possession. Hence, the petitioner/plaintiff prayed to

grant interim injunction order restraining the

respondents/defendants, their men and agents from interfering

with his possession and enjoyment over the suit schedule lands

pending disposal of the suit.

4. The learned trial Court after hearing the submissions of

the learned counsel for the petitioner/plaintiff, granted

temporary injunction in favour of the petitioner/plaintiff

restraining the defendants/respondents, their men, agents from

interfering with his peaceful possession and enjoyment over the

suit schedule properties pending disposal of the suit. Aggrieved

by the same, the respondents/defendants preferred 5 MGP,J Crp_281_2024

CMA No. 33 of 2022 before the learned III Additional District

and Sessions Judge, Sangareddy District, however, the said

appeal was dismissed. Aggrieved by the same, the

respondents/defendants filed the present Civil Revision Petition

to set aside the impugned order.

5. Heard the learned counsel for the

respondents/defendants and perused the record. On

22.02.2024 Sri Y. Ashok Raj, learned counsel appeared on

behalf of petitioner/plaintiff (the respondent herein) and

submitted that he has filed caveat in the present petition,

however, on verification, it was found that caveat was filed but

the same was expired on 29.01.2024. Being the caveator, notice

was received and an opportunity was given to file vakalath on

behalf of petitioner/plaintiff, but there was no representation on

behalf of petitioner/plaintiff. Even on 01.03.2024 there on

representation on behalf of petitioner/plaintiff. Hence, the

arguments on behalf of petitioner/plaintiff are treated as heard.

6. The first and foremost contention of the learned counsel

for the respondents/defendants is that the learned III Additional

District and Sessions Judge, Sangareddy accepted the pendency

of the appeal in A.S.No.66 of 2022 against the judgment and

decree in O.S.No.86 of 2009 but observed that it cannot record 6 MGP,J Crp_281_2024

findings for or against the correctness or otherwise of the said

findings, however, erred in finding that the orders of the trial

Court were legal and correct without finding that there was

intentional suppression of a material fact. The other contention

of the learned counsel for the respondents/defendants is that

the trial Court erred in conforming the injunction order without

looking into the admissible evidence brought before it in the

form of several unchallengeable evidence in the form of written

statement by the defendants, their evidence as DWs 1, 3 and 4

in the partition suit. In support of the said contention, the

learned counsel relied upon a decision in Gautam Sarup v.

Leela Jetly 1 the Honourable Supreme Court observed that an

admission made by a party to the lis is admissible against him

proprio vigore. The learned counsel for the

respondents/defendants contended that the there is no proof to

show that the petitioner/plaintiff is in possession of the suit

schedule property and in such circumstances, the trial Court

ought not to have granted interim injunction and in support of

his contention relied upon a decision in Balkrishna Dattatraya

Galande v. Balkrishna Rambharose Gupta and another 2 the

Honourable Supreme Court observed that in a suit filed under

2008 Law Suit (SC) 2140

2019 Law Suit (SC) 140 7 MGP,J Crp_281_2024

Section 38 of the Specific Relief Act, possession on the date of

suit is a must for grant of permanent injunction and when the

party failed to prove that he was in actual possession of the

property on the date of the suit, he is not entitled for the decree

for permanent injunction. The learned counsel for the

respondents/defendants contended that both the Courts have

not considered the requisites for granting temporary injunction

and relied upon a decision in M. Chandrasekhar Reddy v. M.

Reddeppa Reddy 3 the High Court for the State of Andhra

Pradesh observed as under:

"29. The prime requisites for grant of temporary injunction is prima facie case, balance of convenience and irreparable loss. In the present case, though the respondent claiming that he is in exclusive possession and enjoyment of the property and whereas the petitioners before this Court are claiming that they are in joint possession and enjoyment of the property, at this stage, it is difficult to decide as to who is in actual possession and enjoyment of the property, in view of previous litigation. However, it is suffice to conclude that in view of the decree and judgment in O.S No.7 of 2011 marked as Exs.P5 and P6 coupled with Exs.P2 and P3, this Court can safely conclude that the petitioners are in possession and enjoyment of the property, thereby they establish their prima facie case, prima facie case is not defined anywhere, but in the judgment 21 MSM, J reported in Ms. Julien Eductional Trust Vs. Sourendra Kumar Roy and others15, the Hon'ble Apex Court held as follows:

"We are satisfied from the material on record that a prima facie case has been made out by the appellant Trust as to the agreement for sale, "which has to go to trial." Whether there was a concluded contract or not between the appellant Trust and the respondent Nos. 1 to 8 is a matter of evidence and can only be gone into during the trial of the suit. This brings us to the all important question as to whether the balance of convenience and inconvenience lay in favour of the grant of an interim order of injunction in favour of the appellant Trust and as to whether the appellant Trust would

2019 Law Suit (AP) 345

8 MGP,J Crp_281_2024

suffer irreparable loss and injury, if no such interim order was passed."

7. There is no dispute that the defendants herein have

preferred appeal vide A.S.No.66 of 2022 before the High Court

against the judgment in O.S.No.86 of 2009 and this Court was

pleased to direct the respondents therein not to alienate the suit

schedule properties and also not to create any charge over the

suit lands until further orders. But it is pertinent to note that

the injunction petition filed by the plaintiff herein is not to

interfere with his possession and enjoyment in respect of suit

schedule property. It is not even the case of the defendants

herein that the plaintiff is intending to create third party

interest over the suit schedule properties. In fact, it is the case

of the plaintiff that the defendants have not been allowing him

to carry on his agricultural operations over the suit schedule

properties. Thus, even if the appeal is pending before this High

Court, the interim orders granted by this Court in A.S.No.66 of

2022 are no way prohibiting the plaintiff herein to carry out his

agricultural operations over the suit schedule properties.

Moreover, it is to be seen that the trial Court or first appellate

Court has not granted/confirmed interim injunction orders

solely by relying on the dismissal of O.S.No.86 of 2009 filed by

the defendants seeking the relief of partition. In fact both the 9 MGP,J Crp_281_2024

courts have taken into consideration the other material relied

upon by the petitioner/plaintiff in the form of certified copies of

pahanies for various years, specimen copies of digital

passbooks, specimen copies of Form-1B, copies of the FIRs in

both the crimes etc while granting the injunction order in favour

of the petitioner/plaintiff. Furthermore, the injunction order

was granted only to the extent of interference of

respondents/defendants with the petitioner/plaintiff over the

suit schedule properties and those orders will no way come in

the line of interim directions issued by this Court in A.S.No.66

of 2022 directing the defendants in O.S.No.86 of 2009 not to

alienate the suit schedule properties therein.

8. In SP Chengalvaraya Naidu v. Jagannath 4 the

Honourable Supreme Court observed that a person, whose case

is based on falsehood, has no right to approach the Court. In

the case on hand, the limited question that is required to be

answered is whether the petitioner/plaintiff is in possession of

the suit schedule property or not. Admittedly, the

respondents/defendants are claiming rights over the property

through the petitioner/plaintiff and in pursuance of the same,

they have also filed a suit for partition, which was dismissed on

1993 Law Suit (SC) 908 10 MGP,J Crp_281_2024

merits. The petitioner/plaintiff also placed on record before the

first appellate Court about the dismissal of suit for partition.

Merely because the petitioner/plaintiff failed to put forth before

the Court about the pendency of the appeal before the High

Court, it cannot be said that the petitioner/plaintiff has

approached the Court with unclean hands. It is to be seen that

the respondents/defendants have filed appeal, which is not yet

decided and until and unless the appeal is decided on merits,

the respondents/defendants do not get any rights over the suit

schedule lands.

9. The learned counsel for the respondents/defendants

contended that the appropriate remedy to resolve the dispute

between the parties is suit for partition and not the suit for

injunction, more particularly when the rival parties are co-

sharers. In support of the said contention, the learned counsel

for the respondents/defendants relied upon a decision in

Krishan v. Ramesh 5 wherein the High Court for the State of

Punjab and Haryana observed as under:

"Even the learned 1st Appellate Court relying upon Krishan Singh v. Sucha Singh 2008 2 RCR (Civ) 394 has observed that injunction cannot be granted when the other efficacious remedy is available and where the dispute is between the co-sharers more efficacious remedy is by way of partition and not injunction."

2014 Law Suit (P & H) 5786 11 MGP,J Crp_281_2024

10. As observed supra, the respondents/defendants have filed

a suit for partition against the petitioner/plaintiff and his family

members but the said suit was dismissed. The grievance of the

petitioner/plaintiff is that the respondents/defendants are

creating hurdles to him in proceeding with agricultural

operations over the suit schedule properties and in this

connections two crimes were registered against the

respondents/defendants. In such circumstances, the

petitioner/plaintiff has no other option except to file a suit for

perpetual injunction and the trial Court has rightly passed

some interim relief to resolve the dispute between the parties.

11. In Sri T. Narayana Reddy and another v. Smt. Nirmala

and three others 6 the High Court for the State of Karnataka at

Bengalur observed as under:

"Law relating to blending of separate property with those of joint family is well settled, if a member of a joint hindu family voluntarily throws his self acquired property into a common stock with the intention of abandoning his separate claim over it and to render it to be of all other members as well, such a property becomes a joint family property. Such an intention can be inferred by the words and if there are no words, then from his conduct."

13. Whether suit schedule properties are self acquired

properties or separate properties is a question forming part

of O.S.No.86 of 2009 i.e., suit for partition but not in the

suit for permanent injunction. The respondents/

RFA No.491 of 2016 decided on 19.02.2024 12 MGP,J Crp_281_2024

defendants can raise these aspects before the High Court

in A.S.No.66 of 2022 but not in this Civil Revision Petition

challenging the judgment in an appeal based on the order

in an interlocutory application.

14. It is the contention of the learned counsel for the

respondents /defendants that the learned III Additional District

and Sessions Judge at Sangareddy did not decide the appeal in

proper perspective and it was a cryptic order. In support of this

contention, he relied upon a decision in Malluri Mallappa (D)

LRs v. Kuruvathappa and others 7 the Honourable Supreme

Court as under:

"20. Keeping in mind the above principles, let us examine the present case. As stated above, the issue relating to readiness and willingness of the plaintiff to perform his part of the contract and issue relating to limitation were held against the plaintiff and the suit was accordingly dismissed. The appeal before the High Court involved both disputed questions of law and fact. The High Court without examination of any of these aspects has dismissed the appeal by a cryptic order. The court below has neither reappreciated the evidence of the parties, nor it has passed a reasoned order. The High Court has failed to follow the provisions of Order XLI Rule 31 of the CPC while deciding the appeal. Mr. Bhat has argued that the suit was well within time under Article 54 of the Schedule to the Limitation Act. Even this question has not been examined in its proper perspective."

15. A perusal of the impugned judgment, it is evident that the

learned III Additional District and Sessions Judge at Sangareddy

has considered all the contentions arrived to a proper conclusion

2020 Law Suit (SC) 156 13 MGP,J Crp_281_2024

and it is not appearing to be a cryptic order. Thus, the above

said decision is not applicable to the facts of the case on hand.

16. It is the contention of the respondents/defendants that

the trial Court passed the impugned order in violation of the

provision under Order XXXIX Rule 3 A of the Code of Civil

Procedure and in support of his contentions, relied upon a

decision in M/s. Industries and Spirits Private Limited v.

M/s. allied Blenders and Distillers Private Limited 8 wherein

this High Court observed as under:

"23. As regards Order XXXIX Rule 3A CPC, the same was considered by the Supreme Court in Quantum Securities (P) Limited Vs. New Delhi Television Limited2 and the Supreme Court observed that when an ex parte ad interim injunction is granted, the Court which is seized of the main case, should make endeavour to dispose of the Notice of Motion on merits in the light of the mandate contained in Order XXXIX (2015) 10 SCC 602 Rule 3A CPC which provides that the Court shall make an endeavour to finally dispose of the Application within 30 days from the date on which the ex parte injunction was granted.

24. No doubt, because of the COVID-19 pandemic and the limited functioning of the Subordinate Courts pursuant to the decision of the High Court of Telangana, there might have been some difficulty for the Court below in the months of March, April and May, 2020 to decide the interim injunction Applications as per the mandate of Order XXXIX Rule 3A CPC.

25. However, it is shocking that the Court below did not bother to give any reasons for grant of ex parte ad interim injunctions to the respondent in spite of the statutory mandate contained in the proviso to Order XXXIX Rule 3 CPC."

17. There is absolutely no doubt that Rule 3 of Order XXXIX

of the Code of Civil Procedure mandates that the Court shall

record reasons before granting Injunction, while dispensing with

2020 Law Suit (TS) 399 14 MGP,J Crp_281_2024

notice in appropriate cases. As per Rule 3-A the Court shall

make every endeavour to dispose of the petition within 30 days.

It is to be seen that where an injunction has been granted

without giving notice to the opposite party, the Court shall make

an endeavour to finally dispose of the application within thirty

days from the date on which the injunction was granted; and

where it is unable so to do, it shall record its reasons for such

inability. In the case on hand, though the trial Court in its

impugned order dated 20.07.2022 has directed the

petitioner/plaintiff to comply order XXXIX Rule 3 A of the CPC,

the urgent notice was directed against the defendants and

posted the case to 31.01.2022 i.e., after three months from the

date of impugned order. But the trial Court ought to have

adjourned the case to a shorter date in order to facilitate the

respondents/defendants to put forth their contentions and

dispose of the application within 30 days as mandated by the

Code of Civil Procedure. It is to be seen that the

respondents/defendants filed the appeal on 18.08.2022 i.e.,

after the expiry of 30 days from the date of impugned order.

Thus, by the date the respondents/defendants preferred the

appeal, the statutory period of 30 days to dispose of the

interlocutory application lapsed and the purpose has become

infructuous and by now more than 20 months have been 15 MGP,J Crp_281_2024

lapsed. Furthermore, a perusal of the impugned order, it is

amply clear that after issuing urgent notice to the

respondents/defendants the said interlocutory application was

posted to 06.12.2022 for final hearing before the Senior Civil

Judge, Zaheerabad and on that the petitioner/plaintiff filed all

the documents and after going through the documents, the

Court granted the injunction. Therefore, the trial Court has

disposed of the said interlocutory application on merits much

prior to the filing of this Civil Revision Petition and the purpose

of filing this Civil Revision Petition has become infructuous.

Now, it is to be analyzed as to whether the trial Court can

restrict the period of injunction order to thirty days at first

instance and the consequences of not adhering to comply with

statutory Rule 3 of Order XXXIX of the Code of Civil Procedure.

In A. Venkatasubbiah Naidu v. S. Chellappan and others 9 the

Honourable Supreme Court observed as under:

"The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less."

Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule3-A. The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second

AIR 2000 Supreme Court (3032) 16 MGP,J Crp_281_2024

is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing.

What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

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 1,2,2A, 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 who 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 3A 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 3A. 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."

18. In view of the principle laid down above, it is clear that

the order does not ipso facto become illegal merely because it 17 MGP,J Crp_281_2024

was not restricted to a period of thirty days or less. Even

otherwise, now the question is whether this Court can set aside

the impugned order in a Civil Revision Petition filed under

Article 227 of the Constitution of India. In A. Venkatasubbiah

Naidu's case (supra), the Apex Court observed as under:

"Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition."

19. In view of the principle laid down in the above said

decision and considering the above facts and circumstances,

this Court is of the view that when the party had two other

alternative remedies the High Court should direct the party to

avail himself of such remedies one or the other before he resorts

to a constitutional remedy rather than entertaining a petition

filed under Article 227 of the Constitution. The respondents/

defendants ought to have resorted to one of the other remedies.

In M/s. Puri Investments v. M/s. Young Friends And

Company & others 10 the Apex Court observed as under:

10 Civil Appeal No. 1609 OF 2022 (arising out of SLP (C) No. 6516/2019)

decided on 23.02.2022 18 MGP,J Crp_281_2024

"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."

20. In view of the above facts and circumstances and

considering the principle laid down in the above said decision,

this Court is of the considered opinion that the trial Court has

exercised its discretionary power in passing the impugned order

and moreover, the revision petitioners/respondents/defendants

failed to establish that the impugned order passed by the trial

Court suffers from irregularity or infirmity. It is to be seen that

the trial Court has passed an exparte ad interim injunction

order and it was not decided on merits and in such

circumstances, the respondents/defendants ought to have filed

counter and contested the petition or at least they could have

filed a petition for vacating the temporary injunction. The