Andhra Pradesh High Court - Amravati
Galiveeti Siva Rami Reddy vs Chandragiri Venkata Nagamma on 22 July, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
And
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Civil Miscellaneous Appeal No.233 of 2012
JUDGMENT
[Per Hon'ble Sri Justice M. Seetharama Murti] This civil miscellaneous appeal, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 ['the Code', for short] is filed by the unsuccessful petitioner - plaintiff assailing the order, dated 16.02.2012, of the learned V Additional District Judge, Rayachoty, passed in IA.no.480 of 2011 in OS.no.10 of 2010.
We have heard the submissions of the learned counsel for the appellant - petitioner - plaintiff ['plaintiff', for brevity]. There is no representation for the respondents - defendants ['defendants', for brevity]. We have perused the material record.
From the contentions advanced and the content of the material record, the following facts are perceptible.
Originally, the plaintiff instituted the suit against sole defendant for specific performance of an agreement of sale, dated 25.01.2010, in respect of two items of property, in two different survey numbers, in a total extent of Ac.2.00 cents, however, within common boundaries. Along with the suit, the plaintiff also filed an interlocutory application under Order XXXIX Rules 1 & 2 read with Section 151 of the Code requesting to grant a temporary injunction restraining the sole defendant - 1st respondent herein from alienating the plaint schedule property pending disposal of the suit. The trial Court granted ad interim ex parte injunction. Despite the said order being in force, the sole defendant - 1st respondent herein alienated the plaint schedule property to the 2nd defendant, who is no other than his son-in-law, under a registered sale 2 MSRM, J & CMR,J CMA_233_2012 deed, dated 28.09.2010. Thereafter, the plaintiff filed an application for impleading the said purchaser as 2nd defendant in the suit. On allowing the said application, the purchaser was brought on record as 2nd defendant. Thereafter, the plaintiff filed the present application to restrain the impleaded 2nd defendant from alienating the property pending disposal of the suit. The said application was contested by the 2nd defendant. On merits and by the order impugned in this appeal, the said application was dismissed. Therefore, the plaintiff is before this Court.
Learned counsel for the plaintiff would submit as follows:
In view of the conduct of the defendants 1 & 2 in the matter of the 1st defendant alienating the plaint schedule property in favour of the 2nd defendant, who is his son-in-law, despite ad interim injunction granted by the trial Court, the apprehension of the plaintiff that the impleaded 2nd defendant would further alienate the property is well founded and is based on a reasonable belief. Therefore, temporary injunction was sought against the impleaded 2nd defendant not to alienate the property pending disposal of the suit as such a course would meet the ends of justice and helps the parties in maintaining status quo during the pendency of the suit. However, the trial Court dismissed the said application on the erroneous assumption that the injunction is sought as regards the possession over the plaint schedule property. The said aspect is evident from the observations of the trial Court in paragraph 9 of the impugned order wherein the trial Court observed that under the registered sale deed executed by the 1st defendant in favour of the 2nd defendant, the property was delivered and, therefore, there is no prima facie case for the plaintiff. For the afore-stated reasons and the grounds urged in the appeal, the plaintiff is entitled to succeed in this appeal and the order impugned is liable to be set aside.
3 MSRM, J & CMR,J CMA_233_2012 As already noted, there is no representation for the defendants. We have given earnest consideration to the facts and submissions. In view of the chronology of events narrated supra, there is no need to reiterate the facts, which lead to the filing of this appeal.
Admittedly and undisputedly, during the pendency of ad interim injunction order, the sole defendant -1st respondent herein alienated the plaint schedule property in favour of the impleaded 2nd defendant under a registered sale deed. Therefore, after impleading the 2nd defendant, who is the purchaser of the property, pendente lite, the plaintiff sought a temporary injunction against the said defendant to restrain him from alienating the property pending disposal of the suit. It is also pertinent to note that when this appeal is entertained, this Court granted interim order which read as under:
'Interim injunction as prayed for'. The said order is in force till today.
As already pointed out, in view of the earlier conduct of the defendants in entering into a sale transaction under a regular registered sale deed in violation of ad interim injunction order, we are of the considered view that it is a fit case to restrain the 2nd defendant from further alienating the property and that the plaintiff has got not only a prima facie case but also balance of convenience in his favour. In view of the earlier conduct of the defendants, we are of the considered view that if the 2nd defendant indulges in further alienating the property, it would lead to creation of third party interests and complex situations resulting in multiplicity of proceedings and that in which case it would be difficult for the plaintiff to realize the fruits of the decree that may ultimately be passed in his favour, in the event of his ultimate success in the suit and that, therefore, the balance of convenience is also in favour of the plaintiff. Therefore, we find that granting a temporary injunction as sought for sub serves the ends of justice.
4 MSRM, J & CMR,J CMA_233_2012 Hence, we accordingly hold that the order impugned brooks interference and the appeal deserves to be allowed.
In the result, the Civil Miscellaneous Appeal is allowed and the order impugned is set aside. As a sequel, IA.no.480 of 2011 in OS.no.10 of 2010 on the file of the V Additional District Court, Rayachoty, is allowed as prayed for.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ M. SEETHARAMA MURTI, J ___________________________ CHEEKATI MANAVENDRANATH ROY, J 22.07.2019 Vjl 5 MSRM, J & CMR,J CMA_233_2012 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI And THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CMA.No.233 of 2012 [Per Hon'ble Sri Justice M. Seetharama Murti] 22.07.2019 Vjl