1. Since these two Civil Revision Petitions are between the same parties and arise out of common order in CMA Nos. 21 & 22 of 2019, dated 14.09.2020, they are heard together and disposed of by way of this common order.
2. Both these Civil Revision Petitions are filed against Common Order dated 14.09.2020 in C.M.A. Nos. 21 and 22 of 2019, wherein and whereby the appellate Court allowed both CMAs setting aside the common orders dated 18.02.2019 passed in I.A. Nos. 621 & 622 of 2018 in O.S. No. 1408 of 2018 by the Principal Senior Civil Judge, Ranga Reddy District at L.B. Nagar, thereby vacated the temporary injunctions granted therein.
3. The facts leading to the filing of these Revision Petitions are that I.A. No. 621 of 2018 in O.S. No. 1408 of 2018 is filed by the petitioner/plaintiff under Order XXXIX Rules 1 & 2 read with Section 151 CPC for an interim injunction restraining the respondent Nos. 1 & 2/defendant Nos. 1 & 2 from altering/changing the nature of the petition schedule land admeasuring Acs. 30.00 guntas out of Acs. 130-18 guntas situated in Sy. No. 45, Miyapur village, pending disposal of the main suit. I.A. No. 622 of 2018 in O.S. No. 1408 of 2018 is filed under Order XXXIX Rules 1 & 2 read with Section 151 CPC for the relief of temporary injunction restraining them from alienating the said land. For the sake of convenience the parties hereinafter will be referred to as arrayed in the Interlocutory Applications.
4. It is the case of the plaintiff that Abdul Rahman Khan, M.A. Basith Khan, Asifunnisa Begum, & Hafisunnisa Begum, filed a suit for partition and separate possession vide O.S. No. 38 of 1993 (old OS No. 866/1980) before the trial Court in respect of a land consisting of 16 items bearing Survey Nos. 18, 19, 44/1, 45, 77, 87, 88, 92, 93, 94, 95, 97, 98, 117/2, 56 & 69, admeasuring Acres 359.17 Guntas, situated at Miyapur Village, Serlingampally (M), R.R. District and a preliminary decree was passed on 29.12.2000 dividing the land into shares and allotted such shares to the contested parties, according to which the plaintiff's father, i.e., Mr. Baquer Khan is entitled to 16/28 share over the suit schedule properties. One M/s. Mathrusri Co-operative Housing Building Society, who is defendant No. 25 and M/s. The Commercial and industrial Finance Pvt. Ltd., who is defendant No. 2 in the suit preferred appeals before the High Court of Andhra Pradesh vide A.S. No. 1008 of 2001 and A.S. No. 1161 of 2001, the said appeals were contested and the Court was pleased to dismiss the appeals and confirmed the preliminary decree passed by the I Addl. District Judge, R.R. District at LB Nagar vide order dated 16.12.2011. In pursuance to the application filed by the plaintiffs therein in I.A. No. 1288 of 2012 for passing of final decree, an Advocate Commissioner was appointed by the Court, for allotment of shares by dividing the property as per the preliminary decree, who submitted his report to the I Addl. District Judge, R.R. District at LB Nagar and the same is pending for final adjudication. Having knowledge about the pendency of the final decree proceedings, though the 1st respondent is party to the suit OS No. 38 of 1993, tried to create third party rights in the land admeasuring Ac. 30.00 Guntas out of Ac. 130.16 Guntas in Survey No. 45 situated at Miyapur Village, Hyderabad (W), R.R. District. The 2nd respondent tried to change the physical features of the land by procuring JCB on 30.06.2018. In view of the illegal attempts of the respondent Nos. 1 and 2, the petitioner filed the present applications.
5. The 2nd respondent filed counter in both the applications denying the averments in the affidavit filed in support of the Application stating that the final decree is not yet engrossed and the said property was not allotted with metes and bounds in the said partition suit. That one Mr. Datla Seetarama Chandra Raju and Smt. Datla Mantena (Ramya) and 45 others entered into a joint development agreement cum General Power of Attorney dated 06-09-2013 irrespective of the pending of final decree proceedings. It is asserted that the respondent No. 2 purchased the property from the 1st respondent and subsequently sold the same to various purchasers including Mr. Datla Seetha Rama Chandra Raju and others through registered sale deeds. It is asserted that eldest son of Basith Khan, the father of the petitioner/plaintiff claiming himself as exclusive owner of 312.77 guntas in various survey numbers situated at Miyapur Village including the land in Sy. No. 45. As per the agreement of sale dated 04.05.1961 entered with the Commercial and Industrial Finance Pvt. Ltd., the land claimed by the Baquer Khan is transferred in favour of the said company, due to which, the same company filed OS No. 54 of 1972 on the file of the VI Additional City Civil Court, Hyderabad, which was subsequently renumbered as OS No. 168/1970. It is specifically asserted that the entire suit schedule property in OS No. 38/1993 is 359.17 guntas and the property sold by Mr. Baquar Khan in favour of M/s. Commercial and Industrial Finance Ltd., is Acs. 312.00 guntas. The land sold in favour of Mr. Nirmala Kistaiah and others is Acs. 27.22 guntas and the land sold in favour of Mr. Rajamallaiah Goud and others is Acs. 6.00 gunas, thus the total alienations made by Mr. Baquar Khan is Acs. 481.22 guntas. That by virtue of sale deed executed by the Court, the Commercial and Industrial Finance Pvt. Ltd. had alienated the land admeasuring Acs. 30.00 guntas in favour of Vignan Vidyalaya Pvt. Ltd., during the year 1995. The 1st respondent in turn sold the land in Sy. No. 45 to various purchasers and executed registered sale deeds in the year 1999, 2003, 2004, as such, there is no land available for partition with metes and bounds as claimed by the petitioner in the final decree proceedings. There is no prima facie case and balance of convenience is in favour of petitioner, as such, sought for dismissal of the applications.
6. The trial Court, after considering the documents filed on behalf the petitioner i.e., Exs. P1 to P11 and Exs. R1 to R34 filed on behalf of the respondents, allowed the applications directing the respondents 1 and 2 not to change the nature of the petition schedule property and also directed not to alienate the petition schedule property i.e., Acs. 30 guntas out of Acs. 130.16 guntas in Sy. No. 45, situated at Miyapur Village. Aggrieved thereby, the respondents in I.A. Nos. 621 ad 622 of 2018 preferred C.M.A. Nos. 21 and 22 of 2019, wherein and whereby the appellate Court allowed both CMAs setting aside the common orders dated 18.02.2019 passed in I.A. Nos. 621 & 622 of 2018 in O.S. No. 1408 of 2018 by the Principal Senior Civil Judge, Ranga Reddy District at L.B. Nagar, thereby vacated the temporary injunctions granted therein. Challenging the said Common Orders in CMAs, present Civil Revision Petitions are filed.
7. Heard Sri Anand Kumar Kapoor, leaned counsel and Sri M. Narender Reddy, learned Senior Counsel appearing for Sri D. Vijay Kumar, learned Counsel for the petitioner and Sri D. Prakash Reddy, learned Senior Counsel appearing for Sri Vikram Pooserla, learned counsel for the 1st respondent.
8. Learned counsels for the petitioner made following submissions; that the appellate Court had expressed doubt about the maintainability of the suit filed by the petitioner i.e., O.S No. 1408 of 2018, which is not warranted as filing of suit is not barred by any provision of law; that the maintainability of the suit cannot be gone into in the interlocutory application and that as per Section 9 of CPC all the suits are maintainable except barred by any provision of law; Appeal is creature of statute and the right of suit is inherent unless barred by law; that the burden always lies on the person who alleges that the suit is not maintainable and the respondents have not discharged said burden, but the Court below has unnecessarily gone into said issue. More so, the 2nd respondent/2nd defendant is not a party to OS No. 38 of 1993. Section 38(3)(d) of the Specific Relief Act, 1963 provides for grant of injunction for avoiding multiplicity of litigation, but without considering the said aspect, the appellate Court held otherwise. Section 41 of the Specific Relief Act is misconstrued by the appellate court and vacated injunction. The final decree proceedings are pending in OS No. 38 of 1993 which goes to show that the specific property is not allotted to any of the parties and the so called Advocate Commissioner's report on which reliance is placed does not confer any specific rights on the shareholders and same is yet to be accepted bypassing final decree and till then, all the shareholders have joint rights over the suit schedule property; that no sharer or joint holder is entitled to exclusive ownership or possession of the property to the exclusion of other co-sharers in the property till the division takes places by metes and bounds. When respondents 1 & 2 are claiming their title through the father of the plaintiff and final decree is yet to be passed for partition, they cannot claim exclusive right, title and interest, as their grantor themselves did not have an exclusive right, title and interest over the suit schedule property. In support of the said contention, he relied on the judgment reported in the case of M/s. Trinity Infraventures Limited v. The State of Telangana 2018 (6) ALD 160 and T. Lakshmipathi v. P. Nithyananda Reddy 2003 5 SCC 150; that as the respondents 1 & 2 are trying to alienate and make constructions in the suit schedule property, in order to protect and preserve the same, the present suit is filed by the petitioner; that the plaintiffs in OS No. 38 of 1993 are the subsequent purchasers and they have to take steps for impleading the 2nd defendant and without impleading the 2nd respondent/2nd defendant in the present suit, they cannot take advantage of their own fault; that the power of attorney with interest can sue and be sued independent of principal. In support of said contention he relied on the judgment of Hon'ble Supreme Court in the case of Tashi Delek Gaming Solutions Ltd., v. State of Karnataka (2006) 1 SCC 442; that the finding of the appellate court in holding that there is no identity of the subject property is totally misconceived when subject property in OS No. 38 of 1993 is not divided by metes and bounds; that as the property is not divided by metes and bounds by the Advocate Commissioner and there is no allotment of specific shares to parties and the partition suit is at the stage of passing of final decree, as such, even the plaintiffs in O.S No. 38 of 1993 does not have any exclusive ownership, therefore, the successors cannot also have specific rights; that the finding of the appellate Court that the father of the plaintiff herein who is defendant No. 1 is not having any share cannot also be decided in the suit and same has to be worked out in final decree proceedings in O.S No. 38 of 1993 by working out equities; that though the appellate court dealt with Exs. R1 and R2 which are decrees of M/s. CIF, but failed to appreciate the fact of dismissal of E.P under Ex. P12; that the possession was not delivered to M/s. CIF as the decree passed is barred by limitation, as such, they are not entitled to possession of the property; that the appellate Court failed to appreciate the fact that Ex. R9 Memorandum of Compromise dated 07.09.1998 is an unregistered document, as such, it has no value in the eye of law; that the appellate court wrongly concluded that the 1st defendant in the suit i.e., O.S. No. 1408 of 2018 is not interested to claim the property of the father of the plaintiff with reference to the present suit schedule property, which is not even the case of the 1st defendant and the same is not even borne out by record; that the powers of interference by the appellate court in respect of matters emanating out of discretionary orders are circumscribed and only in certain situations, the appellate Court can interfere with the discretionary orders passed, but not because second view is possible.
9. On the other hand, Sri D. Prakash Reddy, learned Senior Counsel submits that the powers of revision and the scope of interference under Article 227 of the Constitution of India is limited and can only be exercised in case where the Court below refused to exercise jurisdiction or where one exceeds or assumes jurisdiction where there is no jurisdiction or when it acts illegally or the order of the court below suffers from any material irregularity, as such, the impugned common order does not fall in any of the categories requiring interference by this Court, as the petitioner can workout his remedies in the final decree proceedings in a partition suit pending before the I Additional District Judge's Court, L.B. Nagar, as such, the suit filed by the petitioner is without jurisdiction. He also submits that the appellate Court rightly found that the trial Court should not have entertained the suit when partition suit is pending before the I Additional District Court. He also submits that the suit is also liable to be dismissed for non joinder of parties. He submits that no share is allotted to the father of the petitioner, as he sold away the property more than his entitlement, as such, the petitioner cannot seek for any relief. He also submits that the petitioner has suppressed the findings of the Advocate Commissioner's report. He also submits that the petitioner is not in possession of the property and the 1st respondent had already completed the construction in the suit schedule property. He submits that even though incorrect boundaries to the suit schedule property are shown in the plaint, the court below granted injunction in favour of the petitioner. He also submits that the petitioner has not come to the Court with clean hands, as he has suppressed material facts. He submits that though the petitioner has not made out prima facie case, balance of convenience and irreparable loss, but still the trial Court has granted injunction as such appellate Court has rightly vacated the same, which does not require interference.
10. It is well settled law that the Courts may grant relief of temporary injunctions in interlocutory applications, restraining the respondents, if the respondent commit or likely to commit any unlawful acts such as causing damage to the subject property, change of physical features, alienation of the same, to deprive the right to the property of the petitioners, or otherwise causing injury.
11. Prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the case were to be believed. While determining whether a prima face case had been made out or not the relevant consideration is whether on the evidence led in was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. (see Nirmala J. Jhala v. State of Gujarat (2013) 4 SCC 301).
12. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.[see Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719.
13. When prima facie case is made out and balance of convenience is in favour of the appellant, it may not be necessary to show more than loss of goodwill and reputation to fulfill the condition of irreparable injury. (see Ramdev Food Products (P) Ltd., v. Arvindbhai Rambhai Patel (2006) 8 SCC 726.
14. Keeping in view of the aforesaid settled principles of law, it is to be seen whether the petitioner is entitled for interim injunction or not. Admittedly, original suit i.e., O.S. No. 38 of 1993 (old O.S. No. 866 of 1980) on the file of I Additional District Court, Ranga Reddy District, is filed for partition of the suit schedule properties therein and the same is at the stage of passing of final decree proceedings, wherein the father of the plaintiff in OS No. 1408 of 2018 is arrayed as 1st defendant. After passing of preliminary decree, an Advocate Commissioner was appointed, who in turn submitted his report allocating tentative shares to the parties therein and the said report is coming up for consideration before the I Additional District Court, L.B. Nagar and the same is yet to be accepted and final decree proceedings are required to be passed by dividing the properties by metes and bounds. Some of the predecessors of respondents filed objections in the final decree proceedings and same are required to be considered.
15. It is pertinent to examine the documents filed by the parties before the trial Court. Ex. P1 is the Preliminary Decree passed in O.S. No. 38 of 1993 passed by the I Additional District Judge by allotting shares of the parties to the suit. In the decree, the total land admeasuring is Acs. 359.17 guntas and the present suit is filed only in respect of Acs. 30.00 out of Acs. 130.16 guntas in Sy. No. 45, which was allotted to the father of the petitioner, by the Advocate Commissioner with metes and bounds specifically shown in the sketch prepared by the Advocate Commissioner. Aggrieved by the said decree and judgment in OS No. 38 of 1993, the unsuccessful respondents preferred A.S. Nos. 1008 & 1161 of 2001, which were dismissed by this Court vide order dated 16.12.2011. A perusal of the Advocate Commissioner's report under Ex. P3 goes to show that he has effected the partition and separate possession of the subject land to the parties to the suit in O.S. No. 38 of 1993, which he submitted in I.A. Nos. 1288, 1289 and 1290 of 2012. The trial Court, having taken into account the report of the Advocate Commissioner, observed that so far as the land to an extent of Acs. 130.16 guntas, in Sy. No. 45 is concerned, the same was divided into 10 blocks and block Nos. 4 and 5 admeasuring Acs. 23.00 guntas and Ac. 8.00 guntas, were covered by structures in part of land and compound wall on eastern side. As per the claim of the petitioner, the father of petitioner, who was defendant No. 1 in OS No. 38/1993, was allotted with 16/28th share which became Acs. 30.00 guntas in Sy. No. 45 along with the land in other survey numbers, but it is argued on one hand by learned Senior Counsel for the petitioner that no share is allotted to the father of the petitioner and on the other hand, it is stated that petitioner has not shown boundaries to the suit land, as per boundaries of allotted land to the petitioner in the report of Advocate Commissioner, which is contradictory. The trial Court also observed that Exs. P4 to P8 are the sale deeds executed by the 2nd respondent in favour of third parties, after filing of the suit, knowing fully well about the fact of pendency of final decree proceedings in O.S. No. 38 of 1993, between the parties to the suit. Since the final decree proceedings are pending before the Court in OS No. 38 of 1993, it is for the respondents to raise the objections, if any, before the Court where the final decree proceedings are pending, with regard to the entitlement of the petitioner's share or his father's share, but not in the applications filed by the petitioner under Order 39 Rules 1 & 2 in a suit. That apart, it is also open for the respondents herein to submit objections to the Advocate Commissioner's report before the Court below in OS No. 38 of 1993.
16. Respondents herein along with the plaintiff herein are asserting their rights by virtue of preliminary decree, which goes to show that the suit schedule property in OS No. 38 of 1993 is not yet divided by metes and bounds. Even according to 1st respondent in counter, final decree is yet to be passed by dividing the property by metes and bounds, as such, there is no specific allocation of property to any of the parties in respect of their shares. The contention of the learned counsel for the respondents that the father of the plaintiff i.e., 1st defendant in OS No. 38 of 1993 has sold not only his share of property but also in excess, cannot be accepted, as that issue cannot be gone into in this interlocutory application, as that issue needs to be gone in final decree proceedings and equities are to be worked out in that suit. The 1st respondent being the developer, who claims right, title and interest under registered Development Agreement-cum-General Power of Attorney, started construction in the subject suit schedule property, which forms part of the suit schedule party in partition suit pending adjudication in OS No. 38 of 1993, and it is not known how the 1st respondent can claim exclusive title and possession over the suit schedule property when the shares of the respective parties are not specifically allocated by metes and bounds, as such, it is not known, how the respondents are entitled to make constructions and alienate the suit schedule property, when the substantial litigation by way of final decree proceedings are pending before the I Additional District Court, Ranga Reddy District. In order to protect and preserve the suit schedule property, which forms part of the suit schedule property in OS No. 38 of 1993, being the son of the 1st defendant therein, the petitioner filed suit OS 1408 of 2018 for temporary injunction, till final decree proceedings are completed. As such, the petitioner has prima facie case and balance of convenience in his favour. The trial Court, having considered the pendency of final decree proceedings in OS No. 38 of 1993, found that irreparable injury would be caused to the petitioner, if injunction is refused, as the respondents, admittedly made constructions in the suit schedule property and also trying to make physical changes. Therefore, the petitioner has made out all the three ingredients for grant of injunction in his favour.
17. That apart, it is needless to state that all the shareholders of the property held in joint, are entitled to each part and parcel of the property, till a division by metes and bounds is affected. No sharer or joint holder is entitled to exclusive ownership or possession of the property to the exclusion of other co-sharers in the property, till the division is made by metes and bounds. When the grantor itself cannot claim exclusive right, successors cannot claim exclusive rights and the successors cannot have more rights than the grantor. It is well settled law that when co-sharers and co-owners do not have exclusive right to any part or portion of the joint family property, each of them have right, title and interest on each part and parcel of joint family property, till it is divided by metes and bounds. (see T. Lakshmipathi v. P. Nithyananda Reddy (2003) 5 SCC 150.
18. It is also well settled law that a preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule property and liable to partition. On the basis of mere declaration of rights that take place in preliminary decree, the parties cannot trade in on specific items of properties or specific portions of suit schedule properties. There are three stages in partition suit namely (i) passing of preliminary decree in terms of Order XX Rule 18, (ii) appointment of a Commissioner and passing of final decree in terms of Order XXVI Rule 14(3) and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any particular property or any particular portion of a property by way of a compromise. (see M/s. Trinity Infraventures Limited vs. State of Telangana (2018) 6 ALD 160. When such is the legal position, how the 1st respondent can claim exclusive right and possession over the suit schedule property and that is not explained by the 1st respondent or the 2nd respondent. On the other hand, petitioner/plaintiff is claiming his right in partition under preliminary decree passed in a partition suit and wants to protect and preserve the property, pending adjudication of final decree proceedings and though the respondents have raised plea regarding maintainability of suit, the appellate court expressed doubt about the same, but no provision of law is brought to the notice of this Court stating that the present suit is not maintainable. Section 9 of CPC reads as follows:
"9. Courts to try all civil suits unless barred:
"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I:- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II:- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
Section 9 of CPC makes it very clear that as long as the suit is not barred by any provision of law, it cannot be said that the suit is not maintainable. The appellate court also went into that aspect and non suited the petitioner for granting injunction, erroneously though the appellate court should not have gone into in an appeal against interlocutory order, which aspect should have been left open to be decided in the suit.
19. Moreso, case of petitioner is that the 1st respondent is not a party to the partition suit in OS No. 38 of 1993, as such, present suit is filed, which aspect needs to be gone into in the suit.
20. The appellate Court observed that the judgment and preliminary decree in O.S. No. 38 of 1993 has been confirmed by this Court as per Ex. P2 dated 16.12.2011 and Appeals arising there from were dismissed. The parties to the partition suit which include the 1st respondent, who is defendant No. 18 in the suit, has to workout his remedies in the final decree proceedings, at the time of final disposal of the suit, but not in an interlocutory applications. The appellate Court observed that 2nd respondent purchased the shares of all the shareholders pertaining to 12/28th except from the father of the petitioner i.e., Baquer Khan, as such, it has already stepped into the shoes of the shareholders pertaining to 12/28 share. The appellate Court also observed that the NCHBS is lawfully authorised for working out equities at the time of passing of final decree, since it is prima facie established that, it has a right in the Sy. No. 45. Having observed so, the appellate held that the reliefs claimed by the petitioner in I.A. Nos. 621 & 622 of 2018 in OS No. 1408 of 2018, appears to be curtailing the rights of the parties to the partition suit proceedings itself, which is totally erroneous. It is pertinent to note here that it is always open for the 2nd respondent to workout its remedies in the final decree proceedings in O.S. No. 38 of 1993, which is also observed by the trial Court in the order dated 18.02.2019. Appellate Court made some observations regarding the merits of the matter in final decree proceedings pending in OS No. 38/1993 in the interlocutory applications which is unwarranted. However, it is observed by the appellate Court that the validity of the sale deeds to the extent of the share of the vendor of the respondent Nos. 1 & 2 have to be agitated in the final decree proceedings.
21. Be that as it may, the appellate Court seems to have considered the issues that arise under Order 39 Rules 1 & 2 CPC and decided the main suit itself, including the suit O.S. No. 38 of 1993, by taking into consideration the documents filed by both parties and went on to give a finding with regard to the maintainability of the suit i.e., O.S. No. 1408 of 2018, which is not permissible in an appeal arising out of an order under Order 39 Rules 1 & 2 CPC, where the Courts have to see whether there is a prima face case, balance of convenience and irreparable loss that would be caused, if injunction is not granted in favour of the petitioner. The appellate court also observed that the petitioner ought to have filed similar interlocutory applications as filed in I.A. Nos. 621 & 622 of 2018 in OS No. 1408 of 2018, in the partition suit in OS No. 38 of 1993 and ought not to have filed the suit OS No. 1408 of 2018 separately and observed that the aforesaid interlocutory applications are not maintainable. The appellate Court also observed that in para 20 of the Common Order as follows:
"20. Further, injunction cannot be granted under Section 41 of the Specific Relief Act, 1963 to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is a necessary to prevent a multiplicity of proceedings and further no injunction can be passed against any person from prosecuting any proceedings in court not subordinate to that from which the injunction is sought. The court which is dealing with the final decree proceedings is at the higher Cader level than the court which passes the impugned order herein. Therefore, in view of the above provision of law also, the rights of the parties to the present suit cannot be curtailed since a comprehensive proceedings case is at the stage of a higher-level court dealing with final decree proceedings, which is also under the obligation to workout equities to finalize the partition suit proceedings in respect of the properties referred to therein, which undoubtedly, cover the suit property in the present suit."
The appellate court under misconception of law held section 41 of Specific Relief Act, 1963 is applicable to facts of the case as trial court has not granted injunction restraining any party from prosecuting judicial proceedings. Admittedly, the final decree proceedings are pending before the I Additional District Judge, at L.B. Nagar, R.R. District. It is the specific observation of the trial Court that after filing of the suit i.e., O.S. No. 1408 of 2018, during pendency of the final decree proceedings in OS No. 38 of 1993, the respondent No. 1 is not only trying to alienate the petition schedule property but also trying to change its physical features. If he is not restrained by way of an injunction from alienating the petition schedule property and creating any third party rights, certainly it will amounts to multiplicity of proceedings and such a view cannot be faulted.
22. The appellate Court observed that the suit is bad for nonjoinder of necessary parties and the same is liable to be dismissed for suppression of material facts and that boundaries in the suit schedule property does not tally in the Advocate Commissioner's report with regard to the land to an extent of Acs. 30.00 in Sy. No. 45, are not given which is also erroneous as boundaries mentioned by Advocate Commissioner are not final as the same has not been accepted by the Court. It is not known which property will be allotted to which party in the suit. The appellate Court went on analysing the conduct of the father of the petitioner and other shareholders, who executed various sale deeds, in favour of third parties, which is impermissible in these interlocutory applications and that issue needs to be considered in partition suit.
23. It is next contended by the learned Senior Counsel for the respondents that the appellate court reversed the order of injunction granted in favour of petitioner as no specific boundaries are given by the petitioner in the suit. However, it is pertinent to note that by relying on the boundaries given by the Advocate Commissioner only, the same was found favour by the appellate Court, which is erroneous, because, as on today, no final decree is passed in OS No. 38 of 1993 by the I Additional District Court, by dividing the property by metes and bounds putting the parties in possession, as such, boundaries shown in the Advocate Commissioner's report has not become final.
24. Passing of preliminary decree in the partition suit and also the fact of the respondents are making construction and trying to alienate the property, are not specifically denied by the respondents, the respondents cannot be permitted to alienate the property, as neither their predecessors in title have been allotted specific shares as per preliminary decree nor any of the parties in the suit. By permitting alienations, third parties rights will come into play and there will be change in physical features of suit schedule property, if constructions are allowed. But as per the Advocate Commissioner's report, it is clear that major portion of constructions have come up and same is not seriously disputed by the petitioner.
25. Though it is contended that the suit is not maintainable against General Power of Attorney holder but, as per Section 202 of the Indian Contract Act, a power of attorney holder coupled with interest can sue and be sued independent of its principal. (see Tashidelek Gaming Solutions Ltd., v. State of Karnataka (supra).
26. In Purnima Manthena v. Renuka Datla (2016) 1 SCC 237, the Hon'ble Supreme Court while referring to a case in Wander Ltd., v. Antox India (P) Ltd., [ 1990 Supp SCC 727], which dealt with appeals against orders granting or refusing a prayer or interlocutory injunction, held that being in exercise of judicial discretion, the appellate court ought not to interfere therewith and substitute its own discretion except where such discretion is shown to have been exercised arbitrarily or capriciously or perversely or where the court whose order has been appealed from, had ignored the settled principles of law, regulating grant or refusal of interlocutory injunctions. It was enunciated that appeal against exercise of discretion is an appeal on principle and the appellate court would not reassess the materials and seek to reach a conclusion different from the one reached by the court below, if it was reasonably possible on the materials available. It was held as well that the appellate court in such a situation would normally justified in interfering with the exercise of discretion of the court below, if made reasonably and in a judicial manner, solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. It was proclaimed that an interlocutory remedy is intended to preserve in status quo, the rights of the parties which may appear on a prima facie examination of a case. It was held that the prayer for grant of interlocutory injunction, being at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence, it is required to act on certain well-settled principles of administration of such interlocutory remedy which is both temporary and discretionary. Referring to the fundamental object of interlocutory injunction, the Hon'ble Supreme Court held that the need for such protection of the plaintiff against injury by violation of his rights must be weighed against the correspondin
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g need of the defendant to be protected against any injury resulting from the restraint on the exercise of his rights, as sought for, which he could not be adequately compensated. But in the present case, the appellate court has travelled beyond the scope of interlocutory applications and by discussing merits of the matter in partition suit in OS No. 38 of 1993 pending before other Court and given finding on that issue and interfered with the orders of the trial court, which is not in accordance with law, which irregularity and illegality needs to be corrected by exercising power of revisional jurisdiction under Article 227 of the Constitution of India. 27. In view of the same, these Civil Revision Petition Nos. 1054 and 1056 of 2020 are allowed setting aside the impugned Common Orders in CMA Nos. 21 & 22 of 2019 by restoring the injunction order granted in Common Orders granted in I.A. Nos. 621 & 622 of 2018 in O.S. No. 1408 of 2018 passed by the trial Court. 28. The observations made herein are only for the purpose of pointing out that the appellate Court ought not to have gone into the merits of the suit at this stage and it ought to have left open the issues to be decided by the trial Court. It is made clear that any view expressed in this regard is only for the purpose of disposal of Revision Petitions arising out of interlocutory applications. 29. Since the parties are fighting the litigation from 1980 onwards i.e., almost more than forty years elapsed, still final decree proceedings in O.S. No. 38 of 1993 are pending and litigations are cropping up and it is in the best interest of parties and also to meet the ends of justice, since Advocate Commissioner has already filed report and it is also stated that the parties have already filed objections, the I Additional District Court, Ranga Reddy District, shall decide the final decree proceedings, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. 30. A perusal of the grounds of revision from para 1 to 7 goes to show that the learned counsels for the petitioner have used intemperate and opprobrious language against the judicial officers, which is unwarranted, contumelious and full of conjectures and surmises. The order passed by the learned judicial officer might not be legally sound and correct but this does not give license to the litigants to hurl invectives in the guise of pleadings at the judicial officer. I deplore this practice of casting aspersions on the integrity of judicial officers without an iota of proof. It is in vogue now; both amongst the litigants and members of the bar to raise baseless allegations against the judicial officers, just because the order went against them. The Courts in the country are not immune from the valid criticism and scrutiny but that must be done bonafide and in good faith. The imputation that the impugned order passed by the judicial officer, "is the manifestation of judicial dishonesty, biases, based on extraneous consideration" as alleged by the petitioner must be resisted and deprecated. Members of the bar, who are the equal stakeholders in this judicial system, are advised to refrain from including, any such statement, in their pleadings that questions the integrity of any judicial officer without having any evidence that could substantiate their claim. This practice, if not checked, will hamper the administration of justice. In the light of above observation and in order to curb such practices, the petitioner is liable to pay costs of Rs. 10,000/- (Rupees ten thousand only) to the Court Masters/Personal Secretaries Association to Hon'ble Judges and Registrars Association, High Court for the State of Telangana, Hyderabad, within a period of two weeks from the date of receipt of a copy of this order. As a sequel thereto, miscellaneous petitions, if any, pending in these Civil Revision Petitions shall stand closed.