Andhra HC (Pre-Telangana)
Syed Mubasheruddin Ahmed And 3 Ors. vs Syeda Nuzhat Murtuza on 22 July, 2005
Equivalent citations: AIR2006AP45, 2005(5)ALD233, 2005(5)ALT493, AIR 2006 ANDHRA PRADESH 45, 2006 (2) AKAR (NOC) 183 (AP), 2006 A I H C 1103, (2005) 5 ANDHLD 233, (2005) 5 ANDH LT 493
Author: G. Rohini
Bench: G. Rohini
JUDGMENT G. Rohini, J.
1. This Civil Miscellaneous Appeal filed under Order 43 Rule 1 of C.P.C. is directed against the order dated 6-4-2005 in I.A. No. 2168 of 2004 in O.S. No. 319 of 2004 on the file of the Court of the III-Addl. Chief Judge, City Civil Court, Hyderabad granting temporary injunction restraining the appellants herein from making further demolition of the part of the suit schedule property and also from taking up any construction thereon pending disposal of the suit.
2. When the Miscellaneous Petition seeking suspension of the impugned order has come up for consideration, at the request of the learned Counsel for both the parties the main Appeal itself is heard and decided by this order.
3. The respondent herein is the plaintiff who filed O.S. No. 319 of 2004 seeking partition of the suit schedule properties claiming that the same belong to late Syeda Faqur Noorjahan, her paternal aunt, who died issueless. She claims 2/3rd share in the plaint schedule property. The appellants 1 and 2 herein (defendants 1 & 2 in the suit) are the son and husband respectively of one Syeda Aktar Jahan, younger sister of Syeda Faqur Noorjahan. The said Syeda Aktar Jahan pre-deceased Syeda Faqur Noorjahan. It was alleged by the plaintiff that the 2nd defendant denied her right for a share in the property of late Syeda Faqur Noorjahan claiming title under a Will, dated 15-7-1998 alleged to have been executed by Syeda Faqur Noorjahan in favour of the 1st defendant. The plaintiff disputes the said Will and claims that she is the only legal heir of late Noorjahan and though her father with his family members migrated to Pakistan, she came to India long back and she has been staying in India and Indian Citizenship was also issued to her on 5-7-2004. It was alleged that the 1st defendant entered into an Agreement of Sale-cum- General Power of Attorney with the third defendant for demolition of the house existing on the suit schedule property and to develop the same into a residential complex and on the said plea she sought for a temporary injunction restraining the defendants from proceeding with the said activities till the disposal of the suit. After hearing both the parties, the said application being I.A. No. 2168 of 2004 filed under Order 39 Rules 1 and 2 of C.P.C. was allowed by order dated 7-1-2005 and temporary injunction was granted restraining the defendants/appellants herein from making further demolition of the suit schedule property and taking up any construction thereon pending disposal of the suit. Aggrieved by the same, the appellants herein filed C.MA. No. 92 of 2005 in this Court.
4. The said Appeal was disposed of by this Court by Judgment dated 1-3-2005 with a direction to the Court below to render a decision on the plea of the defendants that the plaintiff having been migrated to Pakistan in the year 1947 is not entitled to any share in the suit schedule property in view of the extinguishment of her rights by virtue of Foreign Exchange Management Act, 1999. For the said purpose, while remitting the matter back to the Court below with a direction to dispose of the matter on the above point within a period of four weeks, this Court ordered that till such time the injunction granted in the impugned order dated 7-1-2005 shall remain in force.
5. In pursuance thereof, the Court below, having heard both the parties, by order dated 6-4-2005 held that the provisions of Foreign Exchange Management Act, 1999 and the Rules made thereunder would not prohibit the plaintiff from acquiring right in respect of immovable property in India either by inheritance or by transfer etc. By virtue of the said order, the temporary injunction granted on 7-1-2005 continues to be in operation till the disposal of the suit. Being aggrieved by the same, this Appeal is filed by the defendants/respondents in I.A. No. 2168 of 2004.
6. We have heard the learned Counsel for both the parties and perused the material on record.
7. The learned Counsel for the appellants vehemently contends that since the plaintiff failed to make out a prima facie case, the Court below committed a serious error in granting temporary injunction pending the suit. The learned Counsel contends that the claim of the plaintiff who acquired Indian Citizenship only on 5-7-2004 is wholly untenable and liable to be rejected in limini. It is also the contention of the learned Counsel that since the suit itself is frivolous, the Court below has grievously erred in granting the temporary injunction in exercise of the equitable jurisdiction.
8. On the other hand, the learned Counsel for the respondent submits that though the Citizenship Certificate was issued on 5-7-2004, the plaintiff came to India long back and having married an Indian Citizen, she has been staying in India for the past several years. The learned Counsel while pointing out that the Court below having considered the relevant provisions under the Foreign Exchange Management Act, 1999 and on appreciation of the rival claims of the parties and the other material on record, by a well-reasoned order held that the plaintiff is entitled to acquire rights in immovable property in India either by inheritance or by transfer, submits that the said order is unassailable and in the facts and circumstances of the case, the Court below has rightly granted the temporary injunction as prayed for.
9. Having regard to the submissions made by parties, the only question that arises for consideration is whether the plaintiff has made out a prima facie case to succeed in respect of the suit claim and whether the balance of convenience is in her favour so as to grant the temporary injunction as prayed for.
10. Whereas the suit is for partition in which the plaintiff claims 2/3rd share claiming to be the legal heir of late Syeda Faqur Noorjahan, the defendants 1 & 2 claim title under a Will alleged to have been executed by late Syeda Faqur Noorjahan. The plaintiff disputes the genuineness as well as the validity of the said will contending that such will is not permissible under Muslim Law. The fact that late Syeda Faqur Noorjahan was the owner of the suit schedule property is not in dispute. Similarly, the relationship of the parties is also not in dispute. The objection raised by the defendants 1 & 2 that the plaintiff being a Pakistani National, does not acquire any right in respect of the property in India and therefore the suit itself is not maintainable was also not accepted by the Court below and a finding was recorded in favour of the plaintiff. In the circumstances, as rightly held by the Court below, the plaintiff has clearly made out a prima facie case in respect of her claim in the suit.
11. Further, the specific allegation of the plaintiff is that the 1st defendant has entered into a development agreement with the third defendant who is a developer and under the said agreement the defendants are demolishing the existing structures so as to raise new structures and thereby altering the nature of the suit schedule property. The defendants 1 and 2 do not dispute the fact that they entered into an agreement with the 3rd defendant - developer, but contended that by allowing them to proceed with the constructions, no prejudice would be caused to the plaintiff. We are unable to agree. Since the plaintiff claims 2/3rd share in the suit schedule property, it is not desirable to alter the nature of the suit schedule property till the disposal of the suit and the property should be preserved status quo. Having regard to the facts and circumstances, undoubtedly the balance of convenience is in favour of the plaintiff. Hence, in our considered opinion, the findings recorded by the Court below are unassailable and therefore the impugned order does not warrant any interference.
12. However, the learned Counsel for the appellants/defendants across the bar submitted that in pursuance of the development agreement, the defendants have already started the constructions and therefore it would be appropriate to allow them to proceed with the further constructions. He submits that the defendants are willing to give an unconditional undertaking to remove the constructions made by them in case the suit being decreed in favour of the plaintiff. The learned Counsel vehemently contends that since the defendants are willing to give such an undertaking, by allowing the defendants to proceed with the constructions, no irreparable injury, much less monetary loss will cause to the plaintiff.
13. The learned Counsel while relying upon the decisions in M/s. Ultra Drytech Engineering (P) Ltd. v. M/s. Niraj Petrochemicals Ltd. and United Commercial Bank v. Bank of India submits that the Court below committed an error in granting the temporary injunction without recording a finding that the plaintiff would suffer irreparable injury if such injunction is not granted.
14. The law is well settled that for granting temporary injunction under Order 39 Rule 1 of C.P.C., it is sine qua non for the person seeking temporary injunction to make out a prima facie case as to the existence of the right claimed. That apart, it is also necessary for the Court to consider whether the balance of convenience is in his favour that is whether it could cause greater inconvenience to him if the injunction is not granted than the inconvenience which he otherwise would be put to if the injunction is granted. Though it is also necessary to consider whether the person seeking temporary injunction would suffer irreparable injury, it is a well settled principle that it is not necessary that all the three conditions must be satisfied. It is sufficient to satisfy at least two conditions, the first condition as to making out a prima facie case being sine qua non, to entitle a person to obtain temporary injunction (vide and ).
15. In the facts and circumstances of the case on hand, we are of the considered opinion that the Court below was justified in granting temporary injunction since by allowing the defendants to alter the nature of the suit schedule property by making constructions in pursuance of the development agreement with the third defendant, undoubtedly the interest of the third parties would be created thereby complicating the issues involved apart from resulting in multiplicity of proceedings.
16. For the aforesaid reasons, we do not find any infirmity in the order under Appeal and the same is accordingly confirmed. However, there shall be a direction to the Court below to dispose of the main suit expeditiously.
17. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.