Andhra HC (Pre-Telangana)
Mokkapati Harihara Prasad vs Nalakuditi Nageswara Rao And Anr. on 20 August, 1993
Equivalent citations: 1993(3)ALT76
JUDGMENT S. Dasaradha Rama Reddy, J.
1. The appellant, who is the defendant in O.S.No. 293 of 1992 on the file of Principal Subordinate Judge, Guntur, preferred this appeal against order of injunction in I.A.No. 1457 of 1992 dated 15th September, 1992, restraining him from making further construction in the plaint 'A' schedule property till the disposal of the suit. The suit was filed by N. Nageswara Rao and V. Umamaheswara Rao, residents of Medikonduru in a representative capacity under Section 92 of Civil Procedure Code against the appellant, Akkaiah Choultry and two others for declaration that A- Schedule property consisting of Choultry situated on 250 Square yards of site at Medikonduru village is a charitable trust bearing the name of Akkaiah Choultry and also for direction to the appellant, who is the de facto trustee, to render account of the income of the trust from B-Schedule property consisting of 10 acres 75 cents situated in Medikonduru village and to remove the appellant from the management and appoint proper persons by framing a scheme. According to the plaint, the said Choultry was constructed by one Akkaiah for the purpose of providing shelter to the travellers and also to serve water in summer to the travellers (Chalivendram) and residents of the village. Akkaiah collected donations from the public, and after obtaining permission from the Government, started construction of the Choultry and also Chalivendram in the year 1924. Akkaiah, who had no children, fostered a daughter and endowed B-Schedule property by registered will dated 23-3-1937 wherein he directed that the eldest male member of his family must manage the B-Schedule property for the upkeep and maintenance of the Choultry. On Akkaiah's death in 1939, his foster daughter's son, Bhagawanrao, was managing the properties and after his death, the appellant, who is his son, was managing the properties. But the appellant entertained the idea of grabbing the properties and started demolishing the Choultry building alleging that it has become dilapidated. The representations of the villagers to the Endowment authorities to take the Choultry within the fold of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as 'Endowment Act') met with no response and taking advantage of this, according to the plaint, the appellant took away the material of the Choultry and started constructing shopping complex adverse to the interests of the trust. Along with the suit, the plaintiffs have filed separate application, I.A.No. 1455 of 1992, under Section 92 of Civil Procedure Code for the leave of the Court. The plaintiffs have also filed petition under Order 39 Rules 1 and 2 in I.A.No. 1457 of 1992 for injunction restraining the appellant, his men and followers from proceeding further with the construction on the plaint A-Schedule property.
2. The trial Court granted leave ex parte to file suit and also granted interim injunction. The appellant opposed the petition contending that the building and site was mutated in the name of Bhagawanrao, his father long back and that there was no Choultry and Chalivendram for the past 40 years, and that there is no public trust, much less public endowment. It was also contended that granting leave by the trial Court under Section 92 of Civil Procedure Code without notice to the defendant is illegal, that he has already constructed shopping complex by spending an amount of 1,50,000 up to the ceiling leyel and only slab has to be put up and that he is 'willing to complete the laying of slab to aviod waste of material subject to the result of the suit." The trial Court after hearing both the sides made interim injunction absolute on 15th September, 1992. Against this order, the appellant-second defendant has come up with this appeal contending:
1. that though the Court is not bound to give notice to him under Section 92 Civil Procedure Code, as a rule of caution, it should have given such notice;
2. no interim injunction can be granted since in the main suit, no relief of permanent injunction was prayed for;
3. that the property belongs exclusively to him and there is no trust; and that the balance of convenience lies in not granting injunction especially when he has undertaken to complete the laying of slab subject to the result of the suit.
3. It may be noticed that the second contention regarding granting of temporary injunction in the declaratory suit is raised for the first time of the appeal. However, as it is a question of law, we have permitted the counsel to raise it.
1st Contention regarding Section 92 Civil Procedure Code:
4. In view of the Supreme Court decision in R.M. Narayana Chettiar v. Lakshmanan Chettiar, holding that the Court is not bound to give notice to the defendant before granting leave under Section 92 Civil Procedure Code as amended in 1976, the learned counsel for the appellant has not pressed this contention.
2nd Contention:
5. The learned counsel for the appellant contends that as there is no prayer for permanent injunction in the main suit, no temporary injuntion can be granted under Order XXXIX Rule 1. He relies on the following decisions:
1. K.P.M. Aboobucker v. Kunhamoo, AIR 1958 Madras 287.
2. Mohd. Ibrahim Khan v. Pateshwari Prasad, .
3. K. Babudhom Singh v. H. Rononyaima Singh, AIR 1962 Manipur 18.
4. Amma Shah v. Ismail Shah, AIR 1972 J & K 79.
5. J.R. Sirsat v. B.M. Karekar, AIR 1973 Goa 1.
6. Raman Hosiery Factory v. J.K. Synthetics, .
6. The learned counsel for the respondents contended that the relief prayed for in the suit is not only for declaration of the plaint 'A' Schedule property as belonging to 1st defendant - Charitable Trust, but also for relief of removal of the appellant from the management of the trust and to direct him to render account of the income from the properties and in view of this comprehensive relief, the relief of temporary injunction, which is within the scope of the main relief, can be sought for. He has also contended that de hors Order XXXIX Rule 1, temporary injunction can be granted under Section 151 of Civil Procedure Code to meet the ends of justice. We agree with the contention of the respondents for the following reasons:
7. In K.P.M. Aboobucker v. Kunhamoo, AIR 1958 Madras 287 the Madras High Court held that the interim relief granted during the pendency of the suit must not be of greater scope than what could be granted in the suit itself, after the party has established his right in the suit to that relief. It was also held that no interim injunction can be granted under Order XXXIX Rule 1 (a) against a person, who is not a party to the suit. There the suit was for partition and the injunction asked for was for restraining the respondents from bringing one of the properties for sale pursuant to a decree obtained by him in another suit as mortgagee.
8. It can be seen easily that in that case, the main relief of partition had nothing to do with the sale of an item of property, which incidentally was also subject matter of partition suit, in execution of a decree in another suit obtained by a person, who was not party to the partition suit in which the injunction was asked. We fail to see has this decision is of any help to the appellant.
9. Mohd. Ibrahim Khan v. Pateshwari Prasad, the plaintiff filed a suit for declaration that he was proprietor of certain plots and asked for an injunction restraining the defendant from alienating the property in dispute, even though according to the plaint, he was in possession. The Allahabad High Court held that as the plaintiff was in possession of the property, he should have also asked for relief of mandatory injunction in the suit restraining defendant from interfering with his possession and in the absence of such prayer, relief of injunction pending suit cannot be asked. Except the decision in K. P.M. Aboobucker v. Kunhamoo, AIR 1958 Madras 287 no authority or reasoning is given in support of this broad proposition. As already noticed, the Madras High Court did not lay down any such broad proposition. Further, examination of this decision is academic in view of Order XXXIX Rule 1 (c) introduced in 1976 reading as follows:
"(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."
10. Thus, this decision is also not of any assistance to the appellant.
11. In K. Babudhom Singh v. H. Rononyaima Singh (4 supra), the Manipur High Court following Nagpur High Court ruling in Fakira Mahadji v. Rumsukhibai, AIR 1946 Nagpur 428 held that in a suit for mere declaration of title to a property, "there is no property in dispute" within the meaning of Order XXXIX Rule 1, and hence, the temporary relief of injunction restraining defendant from interfering with the possession goes beyond the main relief of declaration. With due respect, we cannot agree with this broad proposition. In a suit for declaration of title to the property, that property is naturally in dispute and we fail to appreciate the reasoning of the Nagpur High Court and Manipur High Court that in such a suit, there is no property in dispute, but there is only dispute with regard to incorporeal right in the property.
12. In Amma Shah v. Ismail Shah (5 supra), the Jammu and Kashmir High Court followed the Allahabad High Court and Manipur High Court decisions. In that case, the plaintiff was in possession of the suit property and apprehending interference from the defendant, sought interim injunction. But the Court held that interim injunction cannot be granted under Order XXXIX Rule 1 since in the main suit, he had not asked for permanent mandatory injunction. One of the Judges, Mufti Baha-Ud-Din Farooqi,}., in his separate judgment held that in a suit for declaration simpliciter with regard to the title of land in the plaintiff's possession, the plaintiff may, under Order XXXIX Rule 1, ask for temporary injunction restraining the defendant from digging or removing the earth therefrom or otherwise damaging it or even from entering into negotiations for the sale thereof and that where the act sought to be prevented is interference with his possession, he can ask for injunction under Order XXXIX Rule 2. Thus, the relief of injunction was held as not maintainable on technical ground that it was asked under Rule 1 and not Rule 2 of Order XXXIX. Further, this is also a case arising under Order XXXIX as it stood before 1976 amendment. Thus, this case instead of helping the appellant, helps the respondents, since the injunction in the present case is sought for both under Rules 1 and 2.
I.R. Sirsat v. B.M. Karekar (6 supra):
13. In that suit, the main relief was for a declaration that the resolution passed expressing no-confidence in the President of Municipal Council is illegal and void and that the plaintiff continues to be the President of the Municipality. He also asked for injunction under Order XXXIX Rule 2 (1) read with Rule 3 restraining the defendants from doing any act in furtherance of the resolution passed by the Municipal Council. The Court held that as in the main suit, he had not asked for injunction restraining the defendants from doing any act pursuant to the resolution expressing no-confidence, temporary injunction cannot be asked for the same relief. Though the Court noticed Manoharlal v. Seth Hiralal, wherein it was held that the Civil Court can grant injunction not only under Order XXXIX but also under Section 151 of Civil Procedure Code where the ends of justice so require, on the facts of that case, the Court was not inclined to exercise its jurisdiction under Section 151 of Civil Procedure Code . This decision also is of no aid to the appellant.
14. In Raman Hosiery Factory v. J.K. Synthetics (7 supra), the Delhi High Court applying the well settled principle of which there can be no dispute, namely, no relief of interim injunction can be granted which is larger than main relief in the suit, and following the Madras High Court decision in K.P.M. Aboobucker v. Kunhamoo (2 supra) declined to grant injunction to the party therein. In fact, there was no necessity for the Court to go into these aspects since from para 2 of the judgment it can be seen that in the suit itself the plaintiff claimed relief of perpetual injunction restraining the defendants from directly or indirectly distributing nylon yarn under the suit agreement, which was challenged. Even otherwise what the Court held was that interim relief of injunction cannot be granted if it goes beyond the main relief in the suit. About this fundamental principle, there can be no dispute.
15. As seen from the plaint, in the present case the relief sought for is for declaration of the suit property as property of Charitable Trust and for directing the second defendant-appellant to render accounts for the income from the property of the trust and for direction to remove him from the management of the trust. It is not a suit simpliciter for declaration as contended by the learned counsel for appellant. The plaint read as a whole refers to apprehension of the plaintiffs that the second defendant with the idea of grabbing the suit property has started demolishing the Choultry building and began constructing the commercial complex as if it is his own property. Read in the context of these allegations, the relief asked for in the suit is larger and includes the limited relief prayed for in the injunction, namely, restraining the defendant from proceeding with the further construction,
16. Apart from this, as held by the Supreme Court is Manoharlal v. Seth Hiralal (9 supra) de hors Order XXXIX Rules 1 and 2, the Court can always issue injunction under Section 151 of Civil Procedure Code exercising its inherent powers where ends of justice so require. Thus, we reject this contention of the appellant.
3rd Contention:
17. In the counter filed to the injunction petition, the appellant admits that the property was originally meant for the benefit of the travellers. But he says that the Panchayat to which it was leased out was paying rents and also collecting taxes for the building and site for which receipts were given in the name of his father and hence, there is no Chalivendram or Choultry for the past 40 years and that even if there was a Trust, it became extinct. The lower Court, after going through the Ex.A-6 - copy of the Will by late Akkaiah, Ex.A-8 sale deed executed in favour of Akkaiah, which shows the southern boundary as Choultry wall and Ex.A-14 - which is the representation of the villagers of Medikonduru in the representative capacity to the District Collector, has come to the prima facie conclusion that the plaint schedule property belongs to Akkaiah Choultry which is a Trust. It is also significant that the appellant has not filed any document to prove that the property is his own. Merely because the tax receipts are in the name of Bhagawanrao, it does not follow that the property belongs to him individually. However, it is not necessary for this Court to go into this question, since the matter has to be gone into in the trial. For the purpose of injunction, the limited question is whether there is prima facie case for the plaintiffs. We have no difficulty in coming to the conclusion that the plaintiffs have established a prima facie case in their favour.
18. While granting or refusing the injunction, the following guidelines have to be kept in view as laid down by the Supreme Court in Dalpat Kumar and Anr. v. Prahlad Singh and Ors., 1991 (6) Judgments Today 502.
"......It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant;
(2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue, before the legal right would be established at the trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
......The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility or repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequate compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The court while granting or, refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief of injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."
19. The plaintiffs have satisfied all the above tests. They have established prima facie case and cannot be adequately compensated by way of damages if the trust property is demolished and new commercial complex comes up for the proprietary benefit of the appellant. The injury that may be caused to the plaintiffs if the injunction is refused, is more compared to the injury that is likely to be caused to the defendant if the injunction is granted. Thus, the Court below rightly granted injunction.
20. Another contention urged by the learned counsel is that in view of undertaking given by him in the lower Court, temporary injunction ought not to have been granted. He relied upon the decision in The Archidiocess of Hyderabad v. Jaswantha Rao, 1981 (2) ALT 475 and K. Satyam v. Ramisetty Prakasa Rao, 1990 (1) An.W.R. 622. In the first case, the Court below declined to give injunction accepting the unconditional undertaking given by the defendant that he will demolish the building built on the vacant land at his expense without insisting upon the equity in his favour in case the plaintiff succeeds in the suit and this Court upheld the order of the lower Court. In fact, this Court while relying on S. Rama Lingaiah v. The Kurnool Dist. Gorakshana Maha Sangam, 1970 (1) APLJ 205 explained that Rama Lingaiah's case, 1970 (1) APLJ 205 does not say that if the defendant undertakes to demolish the building, the injunction petition should invariably be dismissed and that what it held was that it was a relevant factor in favour of defendant while considering the balance of convenience. The Court also held that still the first question relating to the prima facie case remains for consideration of the Court. Thus, this case does not help the appellant.
21. In Kollada Satyam v. Ramisetty Prakasa Rao, 1990 (1) An.W.R. 622 also the Court below refused injunction in view of the unconditional undertaking given by the defendant to demolish the building without insisting on any equity in case the plaintiff succeeds in the suit. This Court, after noticing Rama Lingaiah's case, 1970 (1) APLJ 205 upheld the order of the lower Court refusing the injunction. Apart from the legal position, in this case, there is no such undertaking much less unconditional. What all the appellant has stated in his counter is that he will complete the construction to avoid waste of the material, subject to the result of the suit. It is unimaginable how this can be construed as unconditional undertaking to demolish the building in the event of success of the plaintiff. Even without such averment in the counter, any construction made will always be subject to the result of the suit. So, we have no hesitation in rejecting this contention as without substance.
22. In the result, the Civil Miscellaneous Appeal is dismissed with costs. Though no suspension of injunction was asked for or granted in this Civil Miscellaneous Appeal, the appellant obtained suspension of the order of injunction in Civil Miscellaneous Petition No. 16473 of 1992 in Civil Revision Petition No. 3213 of 1992, which was granted by the learned single Judge at the time of admitting the Civil Revision Petition on 12-10-1992.
23. It may be noticed that the Civil Revision Petition was filed against the I.A.No. 1455 of 1992 in the same suit granting leave of the Court under Section 92 of Civil Procedure Code and the appellant obtained suspension of the order not only in I.A.No. 1455 of 1992 but also in I.A.No. 1457 of 1992 against which he had already preferred Civil Miscellaneous Appeal together with C.M.P.No. 15770 of 1992 for suspension of the injunction by the time of filing the Civil Revision Petition. Evidently, in order to circumvent the caveat lodged by the respondent on 28th September, 1992, against the order in I.A.No. 1457 of 1992, the appellant has moved the stay petition in the Civil Revision Petition, which is beyond the scope of the Civil Revision Petition and which has to be heard by the Bench.
24. In the affidavit filed in support of the suspension petition, the appellant has stated that he has filed Civil Miscellaneous Appeal, but is silent about the suspension petition. Whatever it may be, the appellant has enjoyed the suspension of the injunction during the pendency of the Civil Miscellaneous Appeal, which is heard along with the Civil Revision Petition. In view of the dismissal of the Civil Miscellaneous Appeal, we are vacating the suspension granted on 12-10-1992 by this Court and affirming the injunction granted by the trial Court. The lower Court shall give suitable directions at the time of disposal of the suit regarding the construction if any made by the appellant during the period of suspension of injunction.