Telangana High Court
CMA/1084/2010 of E. Narsingh Rao, Vs A. Mahesh, on 30 December 2010
SRI JUSTICE N.V.RAMANA AND THE HONOURABLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1084 of 2010 JUDGMENT:(per Sri Justice N.V.Ramana) This civil miscellaneous appeal is directed against the order, dated 02.09.2010, passed by the Special Sessions Judge for trial of cases under SCs. & STs
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THE HONOURABLE SRI JUSTICE N.V.RAMANAANDTHE HONOURABLE SRI JUSTICE B.N.RAO NALLA
C.M.A.No.1084 of2010
JUDGMENT:(per Sri Justice N.V.Ramana)
This civil miscellaneous appeal is directed against theorder, dated 02.09.2010, passed by the Special Sessions Judgefor trial of cases under SCs. & STs (POA) Act-cum-AdditionalDistrict and Sessions Judge, Ranga Reddy District at L.B.Nagar,allowing the application in I.A. No.339 of 2010 in O.S.No.442 of2010, filed by the respondents-plaintiffs, under Order XXXIX Rules1 and 2 CPC, restraining the appellant from making anyconstruction in the suit schedule property and changing the natureof the property.
2. Respondent Nos.1 to 4 herein filed O.S.No.442 of 2010against the appellant and other respondents herein for partition andseparate possession of the suit schedule properties. They filed theabove said I.A. for injunction against the appellant herein. Theappellant herein remained ex parte before the Court below. TheCourt below, having considered the contentions, held that theplaintiffs have made out a prima facie case and that balance ofconvenience and irreparable loss was in their favour, andaccordingly allowed the application, restraining the appellant frommaking any constructions in the suit schedule property andchanging the nature of the property.
3. Before this Court, respondent Nos.1 to 4/plaintiffs filedcounter stating that the appellant filed application I.A. No. 867 of2010 before the Court below, seeking to set aside the ex parteorder passed against him, and also application in I.A. No. 868 of2010, praying to vacate the injunction order, and the same arepending. It is stated that the appellant without prosecuting the saidapplications filed this appeal, and as such, the appeal is notmaintainable and is liable to be dismissed.
4. Heard the learned counsel for the appellant and the learnedcounsel for the respondents and perused the order under appealand other material available on record.
5. As can be seen from the order under appeal, the appellantremained ex parte. Along with the appeal, the appellant filedmaterial papers. A perusal of the same would disclose thatrespondent No.13 herein, who is shown as not a necessary party,earlier filed suit in O.S. No. 58 of 2008 on the file of the DistrictJudge, Ranga Reddy District, seeking partition of the suit scheduleproperty, and filed interlocutory application in I.A. No. 151 of 2008,seeking injunction, stating that respondent No.12, appellant hereinhave expressed that they are only the owners of the plot and theyare going to alienate the suit schedule properties to third partiesafter completion of construction. If they succeed in their illegalattempts, the petitioners/plaintiffs will suffer irreparable loss andinjury and it may cause multiplicity of litigations. The petitioners/plaintiffs came to know that the respondents/defendants No.2 and
12 colluded with each other and trying to defeat the legitimate rightof the plaintiff over the suit schedule properties. The saidapplication is pending. However, praying for the very same reliefand with the very same averments, the respondents-plaintiffs filedthe present suit O.S. No. 442 of 2010 along with I.A. No. 339 of2010. It is the contention of the appellant that even though thereare no changed circumstances, the Court below, withoutconsidering the same, granted interim injunction. Even though therelief sought by the respondents-plaintiffs is only for injunctionrestraining the respondents from alienating the suit scheduleproperties in favour of third parties, but the Court below, whilegranting injunction order, went beyond the prayer and grantedinjunction restraining the appellant from making any constructionsin the suit schedule property and changing the nature of theproperty, which relief the respondents-plaintiff did not seek in thepresent application. Further, having regard to the fact that theapplications filed by the appellants herein namely I.A. No. 867 of2010 and 868 of 2010, seeking to set aside the ex parte order andinjunction order, and having regard to the fact that in the grant ofinterim injunction the Court below exceeded the scope of the reliefand granted excess relief, which was not prayed for by theplaintiffs, we are of the considered opinion that the impugned ordercannot be sustained and we accordingly the set aside the same.
6. Accordingly, the Civil Miscellaneous Appeal is allowed.However, the appellant is directed not to alienate the suit scheduleproperties, until disposal of the suit. At this stage, the learnedcounsel for respondent Nos.1 to 4-plaintiffs submitted that respondent Nos.1 to 4-plaintiffs would file application for grant ofinjunction along with necessary material. They are at liberty to doso, if law permits, and if any such application is filed, the sameshall be considered on its own merits and in accordance with law.No costs.
_________________N.V.RAMANA, J
Date:30.12.2010sj
________________ B.N.RAO NALLA, J