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Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
Gaddipati Sambrajayam - Appellant
Versus
Panguluri Mahalakshmamma - Respondent
C.R.P. Nos. 1875 & 1976/93
Decided On : 12-02-94
Advocates Appeared :
Mr. K. Harinath,Mr. Mahmood Ali
CODE OF CIVIL PROCEDURE, Or.19, Rules 1 and 2 - Evidentary value of affidavits filed by parties in a suit for injunction - Stated.
HELD: The grant or refusal of a temporary injunction is covered by three principles viz., (1) if the plaintiff has made out a prima facie case, (2) if the balance of convenience is in his favour i.e. it would greater inconvenience to the plaintiff if the injunction is not granted than the inconvenience which, the defendant or persons claiming through him would be put to if the temporary injunction is granted and (3) if the plaintiff suffer irreparable-injury.
When the plaintiffs depended upon their possession of the suit properties based upon a will, the court was expected only to know whether there is a will and on the face of it, whether the plaintiffs would have come into possession of the suit properties. Because the defendants set up earlier will to base their possession, the court was to find out whether on their face value they could have been accepted. The other circumstances namely, payment of assessment or land revenue by the parties, report to the Village Officers about their respective wills, cultivation of the land or the occupation of the residential house, the voters list, the ration card etc., are all again prima facie circumstances to support such a prima facie case of possession based on will. The investigation into the execution of the will registration, coming into possession in law etc., are all matters touching the merits of the case. Even the suspicious circumstances in regard to the will like the writings, the mental state etc., of the testator and all the surrounding circumstances are to be examined prima facie and not in meticulous detail like a trial where the parties will have opportunities to examine witnesses, cross-examine them and rebut certain circumstances appearing from such materials. Notwithstanding any provision of C.P.C. or similar law contemplates for proof prima facie, affidavits may be permitted to be produced under Order 19, Rule 2 of C.P.C. provided the proof contemplated is only prima facie and not the proof on merits, in which case a party may desire the deponent of the affidavit to be produced before the court when the court may not use the affidavit by way of evidence or it can call such witness for cross-examination by the adversery. This supplements the absence of use of affidavits in any provision like order 39 Rule 2 of C.P.C. by virtue of Order 19, Rule 2 of C.P.C. and not otherwise.
( 1 ) THESE two revision petitions involve similar questions of law and fact and arise out of a common judgment dated 30-4-93 in C. M. A. Nos. 5/93 and 11/93 on the file of the Sub-Judge, Bapatla. They were preferred against the common order dated 25-ll-92ini. A. Nos. 1264/91 and 1265/91 in O. S. No. 147/91 on the file of the District Munsif, Bapatla.
( 2 ) THE learned Munsif Magistrate while allowing the applications afforded the relief of temporary injunction to the plaintiffs in the suit restraining the defendants from interfering with their possession of items 1 and 2 of the plaint schedule properties. Item No. l is an agricultural land with D. No. 389 /5 with an extent of Ac. 133 guntas whereas item No. 2 is a residential house. Aggrieved by such orders in favour of the present petitioners who are the plaintiffs in the suit, the respondents herein who are the defendants in the suit, took the matter in appeal which was allowed by the learned Sub-Judge thereby dismissing the application for temporary injuncting and setting aside the orders passed by the learned Munsif Magistrate. Therefore, the petitioners herein who are the plaintiffs in the suit have questioned the correctness and legality of the judgment of the learned Sub-Judge.
( 3 ) THE most perfunctory and aberrated orders and judgments of the two learned Judicial Officers of the Courts below, if deciphered with some strong strain bring out these facts:
( 4 ) PANGULURI Lakshmamma and Gaddipati Sambrajyam are the daughter and the grand-daughter respectively of one Panguluri Veeriah. They filed the suit - O. S. No. 147/91 against defendant No. l Panguluri (Maha) Lakshmamma (another) daughter-in-law of Veeriah and who is also the wife of Radhakrishna murty one of the sons of Veeriah. Defendants 2 to 5 are the dose relatives of defendant No. l and the plaintiffs in the suit. Panguluri Veeriah was the owner of the suit schedule properties. He executed Ex. B-1 the registered will dated 20-5-78 in favour of defendant No. l bequeathing the schedule properties. He resided in item No. 2 of the schedule properties. It appears that radhakrishnamurty stayed with defendant No. l and his children in one of the portions of the house of Veeriah. It was alleged that Veeriah bequeathed His properties under Ex. B-1 in favour of defendant No. l with the fond hope that he would be looked after well during his old age, but he was disappointed. It appears that the plaintiffs who are the daughter and grand daughter of Veeriah looked after him well till he died on 18-9-1989 as disclosed from Ex. A-2 death certificate. It is alleged that the plaintiffs looked after the deceased well whereas he was neglected by defendant No. l and others and therefore, the deceased executed another will Ex. A-1 dated 15-9-89 by cancelling the will Ex. B-1 and bequeathing the properties thereunder in favour of the plaintiffs. It was alleged that the plaintiffs paid the assessment to the suit properties and were in possession of the same after the death of Veeriah and the defendants who had no manner or right or possession over the same, started interfering with the possession of the plaintiffs and therefore, they filed the suit for permanent injunction and also I. As. 1264/91 and 1265/91 for temporary injunction. The defendants and in particular defendant No. l while denying the case of the plaintiffs contended that Veeriah was in a state of Coma when he died and since a long time he was not in a disposing state of mind and particularly at the time of his death and the plaintiffs managed to get up Ex. A-1 and that the deceased had no reason to cancel the will Ex. B-1 as defendant No. l and others looked after him quite well till he died. They also denied the possession of the plaintiffs in regard to the suit schedule properties and on the other hand, they contended that defendant No. l has been in possession of the suit schedule properties till the date of the suit. Both the sides filed docum
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