CMA/361/2012 of Mohd. Iqbal , Mohd. Khasim Vs Zeenat Arra on 31 December 2013

JUDGMENT:

C.M.A.No. 361 of 2012

Defendants 1, 3, 4 and 6 to 11 have preferred thisappeal against the order of injunction granted by the learnedI-Senior Civil Judge, City Civil Courts, Hyderabad in I.A.No.1561 of 2010 in O.S.No. 2575 of 2010, dated 14.3.2012. Thesaid order was suspended by order of this Court, dated18.9.2012 pending the appeal. The first respondent/plaintiffhas filed CMAMP No. 1979 of 2013 seeking vacation of thesaid order. With the consent of the learned counsel on eitherside, the appeal itself is heard and being disposed of. Theparties are referred to as they are arrayed before the trialCourt.

The plaintiff filed the suit for partition alleging that ‘A’and ‘B’ suit schedule properties are Matruka properties ofher father and seeking a share in both the said properties.The plaint averments, in brief, are that the father of theparties- Md. Ismail had two wives and through first wife-Rukhiya Begum, the plaintiff, defendants 1 to 4 and 15 wereborn and through second wife-Zaibun Begum (defendantNo.5), defendants 6 to 14 were born. The plaintiff and all thedefendants are thus legal heirs of late Md. Ismail. It is statedthat during the life time of Md. Ismail, he performed themarriages of all his children except defendant No.11. It isalleged that the plaint A and B schedule properties were leftby late Md. Ismail, from which the plaintiff allegedly wasgetting her share of income. However, she stated to haveissued a legal notice dated 6.4.2010 to the defendants oncoming to know that the efforts were being made to alienatethe plaint A and B schedule properties. She has thereuponfiled the present suit and sought temporary injunctionrestraining the defendants from alienating the plaint A and Bschedule properties by filing IA No. 1561 of 2010.

The defendants 1, 3 to 11 and 15 contested the saidinjunction application. The defendants 1 and 3 to 11 filedtheir common counter-affidavit and other defendantsremained exparte. The defendants 1 and 3 to 11 denied theplaint allegations and contended inter alia that the suit ‘A’schedule property which was alone Matruka property of theirfather was already partitioned among the parties under a compromise decree passed in O.S.No. 142 of 1991 on thefile of Senior Civil Judge, Nizamabad wherein the plaintiffalso figured as defendant No.11 and accepted the saidcompromise. It is, therefore, stated that the suit ‘A’ scheduledproperty was already partitioned and cannot form part of thepresent suit schedule property. So far as suit ‘B’ scheduleproperty i.e., Flat No. 303 at Red Hills, Nampally, Hyderabadis concerned, it is stated that it is the self-acquired propertyof first defendant purchased by him about three years agowith his own earnings and savings, as he was workingabroad in Doha, Qatar. The defendants further stronglydisputed the attempt of the plaintiff to disown the saidcompromise before the Court at Nizamabad and contendedthat she had appeared before the Court through a counsel,accepted the compromise, duly signed on the saidmemorandum of compromise and now she cannot beallowed to turn around and once again seek partition of thesuit ‘A’ schedule property. The present suit is, therefore,.claimed to be bared by principles of res judicata After considering the pleadings of the parties, the trialCourt came to the conclusion that the manner in which thecompromise was recorded in O.S.No. 142 of 1991 appearedsuspicious and by examining the certified copies of thedocuments relating to the said compromise which aremarked as Exs.R1 to R3, the trial Court made certainobservations doubting the genuineness of the saidcompromise so far as the plaintiff is concerned andproceeded to grant temporary injunction by holding that the

defendants have prima facie failed to make out a case thatthe plaintiff gave up her rights in the suit ‘A’ scheduleproperty. The said order is questioned in this appeal.

Mr. B. Vijayasen Reddy, learned counsel for theappellants placed reliance upon Exs.R1 to R3 showing thatthe memorandum of compromise was duly signed by all theparties including the plaintiff who figured as defendant No.11in the said suit. He points out that she had not only engageda counsel who appeared before the Court through specialvakalat, but also accepted the terms of compromise and thesaid memorandum of compromise categorically shows thatthe defendants 1 and 8 to 12 gave up all their rights in thesuit ‘A’ schedule property by stating that they weresufficiently provided with other properties by their late father.The said compromise decree having not been challengedeven in the present suit, there is no prima facie case andbalance of convenience in favour of the plaintiff.

Mr. B. Nalin Kumar, learned counsel for the firstrespondent/plaintiff, on the other hand, supports theimpugned order by pointing out that though thememorandum of compromise was filed on 10.1.2003, it wasrecorded only on 3.2.2003 and as per the endorsement ofthe Court at Nizamabad recording the compromise, thedefendant No.3 who was holding special vakalat fordefendants 1, 2 and 4 to 12 represented them in theproceedings including the plaintiff herein. The learnedcounsel points out that the suit was dismissed in so far as defendant No. 3 is concerned and as such it is surprisingthat the defendant No.3 appeared by special vakalat andadmitted the compromise. The learned counsel, therefore,submits that the trial Court has rightly appreciated thesefacts and finding the said compromise highly suspicious, ithas disbelieved the claim of the defendants that the plaintiffgave up her rights in the suit ‘A’ schedule property.

The points for consideration are,

1) Whether the plaintiff is entitled to

grant of temporary injunction as prayedfor?for?

2) Whether the order of the court belowis justified?is justified?

It is not in dispute and it is evident from the record thatthe suit in O.S.No. 142 of 1991 referred to above wasdisposed of in terms of the compromise in I.A.No. 82 of2003. The certified copy of the said document filed andmarked as Ex.R3 shows that it was signed by all the partiesincluding the plaintiff who figured as defendant No.11 in thesaid suit. Further the said compromise was recorded on3.2.2003 by which date the plaintiff was represented by acounsel holding special vakalat who was present before thecourt and admitted the compromise. Further the saidcompromise was recorded on 3.2.2003 and the present suitcame to be filed in 2010 i.e., seven years thereafter byshowing the self same property which was the subject matterof the said compromise. It is very significant that even in thepresent suit no relief is sought either for declaration or for

setting aside the said compromise decree. Perhaps, theplaintiff being aware that such a suit is barred in view ofOrder 23, Rule 3A of Code of Civil Procedure, this suitmerely seeks partition of plaint ‘A’ and ‘B’ scheduleproperties. The burden of showing that the said compromisedecree is not binding on the plaintiff, prima facie, remainedundischarged by her. However, the court below has placedthe burden on the defendants and granted injunction infavour of the plaintiff. Secondly the only Matruka property i.e.‘A’ schedule property having been disposed of by the saidcompromise decree way back in 2003, there was noquestion of acquiring suit ‘B’ schedule property by theplaintiff out of the income therefrom. The counter-affidavit offirst defendant before the court below specifically states thathe purchased the suit ‘B’ schedule property three years agoout of his own earnings and savings, remaineduncontroverted by the plaintiff. Prima facie, therefore, theplaintiff failed to substantiate as to how the suit ‘A’ and ‘B’schedule properties can be Matruka property of her latefather. The Court below has not kept that aspect in mindwhile granting temporary injunction against the defendants. As the plaintiff has failed to establish any prima facie caseand balance convenience, the impugned order of injunctiongranted by the trial Court cannot be sustained.

The appeal is accordingly allowed, the impugned orderis set aside and I.A.No. 1561 of 2010 in O.S.No. 2575 of2010 on the file of trial Court shall stand dismissed.Miscellaneous applications, if any, shall stand closed. Since the parties are related, there shall be no order as to costs.

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VILAS V. AFZULPURKAR, J

Dt. 31.12.2013KR