Telangana High Court
Ganesh Rajesh vs Mallipeddi Hanumantha Reddy on 27 January, 2022
Author: P. Naveen Rao
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
2
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 3 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 4 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.
1 1985 (2) A.L.T. 339 2 (1993) 3 S.C.C. 161 3 (2000) 7 S.C.C. 695 PNR,J & GRR,J CMA No.39 of 2022 5
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 6 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 Court in the interlocutory application after affording opportunity of hearing to appellant.
12. Civil Miscellaneous Appeal is dismissed granting liberty to the appellant to appear before the trial Court and to seek early hearing of interlocutory application and oppose extension of the interim orders already passed. It is made clear that there is no expression of opinion on merits. It is open to appellant to avail appropriate remedy as warranted by law, if any adverse orders are passed by the trial Court. If the appellant enters appearance, the trial Court shall expedite the hearing and after granting opportunity to both sides, pass appropriate orders on the interlocutory application, preferably within thirty days from the date of receipt of copy of this order. Pending miscellaneous petitions if any shall stand closed.
___________________________ JUSTICE P.NAVEEN RAO __________________________ JUSTICE G.RADHA RANI Date : 27.01.2022 Ndr/KKM PNR,J & GRR,J CMA No.39 of 2022 7 HONOURABLE SRI JUSTICE P.NAVEEN RAO AND HONOURABLE DR. JUSTICE G.RADHA RANI CIVIL MISCELLANEOUS APPEAL NO.39 of 2022 Date: 27.01.2022 Ndr/kkm