Andhra Pradesh High Court - Amravati
Dhanekula Vara Prasad, vs Bobba Anitha, on 22 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1420 of 2022
Between:
Dhanekula Vara Prasad, S/o Paparao, Hindu,
aged about 66 years, Properties, D.No.6-3-
662/7/102, Jaffari Ali Bagh, Sudha Enclave,
Somajiguda, Hyderabad and 7 others.
... Petitioners.
Versus
Bobba Anitha, W/o Siva Prakash, Hindu, aged
about 50 years, Properties, R/o Plot No.14,
Road No.2, Bharathi Nagar, Vijayawada -
520008.
... Respondent.
Counsel for the petitioners : Sri Satyanarayana Dhara
Counsel for respondent No.1 : Sri K.V.Aditya Chowdary
ORDER
Plaintiffs in the suit filed the above revision against the order dated 07.04.2022 in C.M.A.No.10 of 2020 on the file of V Additional District Judge, Vijayawada reversing the order dated 17.03.2020 in I.A.No.683 of 2019 in O.S.No.2039 of 2019 on the file of III Additional Junior Civil Judge, Vijayawada.
2
2. Plaintiffs filed suit O.S.No.2039 of 2019 against the defendant seeking perpetual injunction.
3. The case of the plaintiffs, in brief, is that Dhanekula Sitaramaiah and Dhanekula Paparao are father and son; that said Sitaramaia and Paparao partitioned their ancestral properties on 18.01.1940 and the same was registered; that out of said partition, total extent of Ac.6.04 cents in R.S.No.368/3 fell to the share of Paparao; that said Paparao sold away Ac.1.56 cents to one Tullimilli Kotaiah and also sold away Ac.1.24 cents; that remaining extent of Ac.3.24 cents, vacant site, is in possession and enjoyment of said Paparao; that Paparao blessed with five sons and one daughter; that one son Dhanekula Bhaskararao died intestate on 04.03.2016 leaving behind him his wife, 3rd plaintiff and daughters, plaintiffs 4 and 5 as his legal heirs; that another son Dhanekula Ramalingeswara Rao also died intestate on 17.12.1995, leaving behind him his wife, 6th plaintiff and daughters, plaintiffs 7 and 8 as his legal heirs; that two more sons Dhanenuka Venkata Subbarao and Dhanekula Veera Raghavarao died issueless on 05.08.1987 and 03.10.1989 respectively; that Dhanekula Paparao died 3 intestate on 30.10.1989 leaving behind his wife Kutumbamma and the plaintiffs as his legal heirs; that defendant is the owner of East-South corner land of plaint schedule property; that defendant tried to encroach into the plaint schedule property about 300 square yards and hence, the suit was filed seeking perpetual injunction.
4. Pending the suit, I.A.No.683 of 2019 was filed seeking injunction restraining the defendant from making constructions. The averments in the plaint were reiterated in the affidavit filed along with petition and contended that defendant is making construction.
5. Counter was filed by the defendant denying the title of the plaintiffs over the schedule property. It was contended interalia that plaintiffs failed to prove prima facie case, balance of convenience and irreparable loss. Defendant pleaded purchase of plot in his possession and also contended that late Papa Rao himself laid plots and sold one to his vendor and prayed the Court to dismiss the petition.
6. Trial Court by order dated 17.03.2020 granted temporary injunction restraining the respondent and her men 4 not to raise any construction in south-east corner of plaint schedule property pending disposal of suit. Against the said order, C.M.A.No.10 of 2020 was filed. Lower appellate Court by order dated 07.04.2022 allowed the appeal and dismissed I.A.No.683 of 2019 in O.S.No.2039 of 2019. Aggrieved by the same, the above revision is filed.
7. Heard Sri Sri Satyanarayana Dhara, learned counsel for petitioners and Sri K.V.Aditya Chowdary, learned counsel for respondent.
8. Learned counsel for the petitioners would submit that petitioners being owners of property proved prima facie case, balance of convenience and irreparable loss sine qua non for grant of injunction. Counsel further submits that Appellate Court without considering the material on record, allowed the appeal and dismissed the I.A. Counsel further submits that Appellate Court failed to consider partition deed of 1940 and thus, prayed the Court to set aside the order in CMA.
9. Learned counsel for respondent, on the other hand, supported the order of the lower appellate Court. 5
10. Now, the points for consideration are:
1) Whether the order in C.M.A.No.10 of 2020 warrants interference of this Court?
2) Whether the plaintiffs proved prima facie case, balance of convenience and irreparable loss for grant of injunction?
11. Suit O.S.No.2039 of 2019 was filed for grant of perpetual injunction. Plaint schedule property is an extent of Ac.3.24 cents of vacant site in R.S.No.368/3, new R.S.No.368/3B in Gunadala, Vijayawada. Along with plaint, registered partition deed dated 18.01.1940 was filed. Before the Trial Court, during the enquiry of interlocutory application as per appendix of evidence, no documents were marked on either side. However, counsel for the respondent would contend that in spite of filing of documents, trial court did not mark those documents in I.A.
12. Learned counsel for respondent/defendant would contend that entire extent of land was divided into plots and the plaintiff came to the Court with unclean hands. In the written arguments filed by the respondents/appellants before in CMA, it was specifically contended that the documents 6 filed in the trial Court were neither considered nor marked as exhibits. In fact, notarized copy of sale deed, whereunder he purchased plot admeasuring 586 square yards in unapproved layout of plots laid by father i.e. D.Paparao was filed. Initially D.Papa Rao sold to A.Mohanarao under a registered sale deed dated 7-3-1981. From A.Mohan Rao respondent/defendant purchased the plot under registered sale deed. In the document Western and Northern boundaries are shown as 33 feet road. Though these documents were filed, for the reasons best known, they were not marked as exhibits in I.A.No 683 of 2019. In the miscellaneous appeal Seven documents were filed along with C.M.A.No.10 of 2020.
13. Whether marking of documents are necessary, at the stage of enquiry, in interlocutory applications?
14. In T. Bhoopal Reddy and Anr. Vs. K.R. Laxmi Bai and Ans.1, the Division Bench of the composite High Court of Andhra Pradesh held that despite the absence of any specific rule so far as marking of documents in an interlocutory stage is concerned, the Courts would not be justified in not giving 1 1998 (1) ALT 292 7 any marking at all to such of the documents on which both sides would rely.
15. The above judgment was followed by another Division Bench in R.Parijatham Vs M.Kameshwari2.
16. When the defendant filed certified copies of documents trial Court ought to have considered those documents by giving exhibit numbers. However, for the reasons best known the trial court did not mark the documents relied upon by either of the parties. This court is of the considered opinion that in view of the authoritative pronouncements by Division Benches of composite high court the trial court ought to have marked by the documents. Without marking the documents, trial Court considered I.A. and such a course should be avoided.
17. Trial Court recorded the following reasons to grant injunction.
1) Defendant having pleaded title did not give undertaking qua raising construction in the schedule property.2
2017 (5) ALD 348 8
2) To avoid multiplicity of litigation and to preserve property until disposal of suit, right of defendant shall no way be effected by a mere temporary injunction.
18. No finding was recorded by the trial court while granting injunction about prima facie case, balance of convenience and irreparable loss.
19. In Gujarat Bottling Company Limited and others Vs. Coca Cola Company Limited and others3, the Hon'ble Apex Court observed as follows:
"43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trail on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be 3 (1995) 5 SCC 545 9 adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an under taking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."
20. In Kashi Math Samsthan Vs. Shrimad Sudhindra Thirtha Swamy4, the Hon'ble Apex Court held thus:
16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court.4
(2010) 1 SCC 689 10
21. In Seema Arshad Zaheer Vs. Municipal Corporation of Greater Mumbai5 it was observed as follows:
"29. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the Plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the Plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the Plaintiff's rights is compared with or weighed against the need for protection of the Defendant's rights or likely infringement of the Defendant's rights, the balance of convenience titling in favour of the Plaintiff; and (iii) clear possibility of irreparable injury being caused to the Plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the Plaintiff's conduct is free from blame and he approaches the court with clean hands".
22. A conspectus of the above authorities would disclose that the plaintiff, seeking for interim relief of injunction, should satisfy the prima facie case, balance of convenience and irreparable loss.
23. In the case on hand as discussed supra, trial Court did not record findings about prima facie case, balance of convenience and irreparable loss sine qua non for grant injunction.
5 (2006) 5 SCC 282 11
24. Against the said order, defendant filed C.M.A.No.10 of 2020. Along with the appeal, as can be seen from the appeal grounds filed along with revision, seven documents were filed. Out of those seven documents, registered sale deed dated 07.03.1981 executed by D.Papa Rao in favour of A.Mohan Rao; registered sale deed dated 07.04.2003 executed by A.Mohan Rao in favour of Defendant; regularization of unapproved lay-out etc., are filed.
25. In Wander Ltd. v. Antox India (P) Ltd.6, the Apex Court held as follows:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not 6 1990 (Supp) SCC 727 12 justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : [1960] 3 SCR 713said :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle."
26. In Civil Miscellaneous Appeal, Appellant filed written arguments and, also documents which were filed in I.A. Those documents include sale deeds and layout approval etc., As discussed supra, trial Court neither discussed legal principles nor considered the documents filed. Trial Court, in the considered opinion of this Court, ignored settled legal principles and granted injunction. When the trial Court ignored settled legal principles, Appellate Court is duty bound to consider the available material on record independently.
27. In the case on hand, lower appellate Court after considering the material available on record, recorded findings and set aside the order of the trial Court granting injunction by order dated 07.04.2022. Lower appellate Court 13 did not substitute its opinion. In fact, lower appellate Court considered the documents set aside the order of injunction. Against, the said order, the present civil revision is filed under Article 227 of the Constitution of India.
28. In Jai Singh Vs. Municipal Corporation of Delhi7, the Hon'ble Apex Court held as follows:
42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in Estralla Rubber v. Dass Estate (P) Ltd.
[(2001) 8 SCC 97] wherein it was observed as follows:
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of 7 1990 (Supp) SCC 727 14 facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
29. A perusal of the material papers filed along with the revision and counter affidavit would disclose that plaintiffs without disclosing the alienation made by Dhanukula Papa Rao filed the above suit for inunction for entire extent of Ac. 3.24 cents in S.No.368/3B. However, as can be seen from the documents, D.Paparao himself laid the plots and sold the plots. One such plot was sold to vendor of plaintiff under registered sale deed 07.03.1981 who in turn sold the same to the defendant under a registered sale deed dated 07.04.2003. Thus, plaintiffs came to the Court by not disclosing the alienation of plot by Dhanekula Paparao. Plaintiffs also failed to prove prima facie case and balance of convenience sine qua non for grant of interim injunction. Nothing was pointed out during the course of arguments regarding the lower appellate Court's exceeding jurisdiction while allowing the CMA.
30. In view of the above discussion, this Court is of the opinion that there are no merits in this revision. The order of the lower appellate Court is neither perverse nor amounts to 15 exceeding the jurisdiction vested with it and hence, the same does not call for interference of this Court under Article 227 of the Constitution of India.
31. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No order as to costs.
It is made clear that the trial Court uninfluenced by the observations made by this Court, shall dispose of the suit.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 22nd November, 2022 PVD