Back
Andhra Pradesh High Court
Judges : S.DASARADHA RAMA REDDY, V.SIVARAMAN NAIR
Mokkapati Harihara Prasad - Appellant
Versus
Nalakuditi Nageswara Rao - Respondent
Decided On : 08-20-93
CHARITABLE TRUST - INJUNCTION - TEMPORARY INJUNCTION - PUBLIC TRUST - PUBLIC ENDOWMENT - SECTION 92 CIVIL PROCEDURE CODE - ORDER XXXIX RULES 1 AND 2 - SECTION 151 CIVIL PROCEDURE CODE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - PRIMA FACIE CASE - UNDERTAKING BY DEFENDANT - LEAVE TO FILE SUIT - REPRESENTATIVE CAPACITY - CHALIVENDRAM - CHOWLTRIE - AKKAIAH CHOWLTRIE - MEDIKONDURU VILLAGE - AP CHARITABLE AND HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS ACT, 1987 - LEAVE TO FILE SUIT UNDER SECTION 92 CIVIL PROCEDURE CODE - INJUNCTION UNDER ORDER XXXIX RULES 1 AND 2 - INHERENT POWERS OF COURT UNDER SECTION 151 CIVIL PROCEDURE CODE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - PRIMA FACIE CASE - UNDERTAKING BY DEFENDANT.
Fact of the Case:
Plaintiffs filed a suit under Section 92 of Civil Procedure Code for a declaration that the suit property, a choultry, is a charitable trust and for directions to the defendant, the de facto trustee, to render accounts of the income from the trust property and to remove him from the management and appoint proper persons by framing a scheme. The plaintiffs also filed an application for injunction restraining the defendant from making further construction on the suit property till the disposal of the suit. The trial court granted leave to file the suit and also granted an interim injunction. The defendant appealed against the order of injunction.
Finding of the Court:
The court held that the plaintiffs had established a prima facie case and that the balance of convenience lay in granting the injunction. The court also held that the defendant's undertaking to complete the construction to avoid waste of material, subject to the result of the suit, was not an unconditional undertaking to demolish the building in the event of the success of the plaintiff.
Issues: 1. Whether the plaintiffs had established a prima facie case for the grant of injunction? 2. Whether the balance of convenience lay in granting the injunction? 3. Whether the defendant's undertaking to complete the construction to avoid waste of material, subject to the result of the suit, was an unconditional undertaking to demolish the building in the event of the success of the plaintiff?
Ratio Decidendi: 1. The court held that the plaintiffs had established a prima facie case for the grant of injunction based on the following factors: (a) The plaintiffs had produced evidence to show that the suit property was originally meant for the benefit of the travellers and that it was a charitable trust. (b) The defendant had not filed any document to prove that the property was his own. (c) The defendant had started demolishing the choultry building and constructing a commercial complex, which would cause irreparable injury to the plaintiffs. 2. The court held that the balance of convenience lay in granting the injunction because the injury that may be caused to the plaintiffs if the injunction was refused was more compared to the injury that is likely to be caused to the defendant if the injunction was granted. 3. The court held that the defendant's undertaking to complete the construction to avoid waste of material, subject to the result of the suit, was not an unconditional undertaking to demolish the building in the event of the success of the plaintiff.
Final Decision: The court dismissed the appeal and affirmed the injunction granted by the trial court.
( 1 ) THE appellant, who is the defendant in O. S. No. 293 of 1992 on the file of principal Subordinate Judge, Guntur, preferred this appeal against order of injunction in I. A. No. 1457 of 1992 dated 15th September, 1992, restraining him from making further construction in the plaint a schedule property till the disposal of the suit. The suit was filed by N. Nageswara Rao and V. Umamaheswara Rao, residents of Medikonduru in a representative capacity under Section 92 of Civil Procedure Code against the appellant, Akkaiah choultry and two others for declaration that A- Schedule property consisting of Choultry situated on 250 Square yards of site at Medikonduru village is a charitable trust bearing the name of Akkaiah Choultry and also for direction to the appellant, who is the de facto trustee, to render account of the income of the trust from B-Schedule property consisting of 10 acres 75 cents situated in medikonduru village and to remove the appellant from the management and appoint proper persons by framing a scheme. According to the plaint, the said choultry was constructed by one Akkaiah for the purpose of providing shelter to the travellers and also to serve water in summer to the travellers (Chalivendram) and residents of the village. Akkaiah collected donations from the public, and after obtaining permission from the Government, started construction of the Choultry and also Chalivendram in the year 1924. Akkaiah, who had no children, fostered a daughter and endowed B-Schedule property by registered will dated 23-3-1937 wherein he directed that the eldest male member of his family must manage the B-Schedule property for the upkeep and maintenance of the Choultry. On Akkaiah s death in 1939, his foster daughter s son, Bhagawanrao, was managing the properties and after his death, the appellant, who is his son, was managing the properties. But the appellant entertained the idea of grabbing the properties and started demolishing the choultry building alleging that it has become dilapidated. The representations of the villagers to the Endowment authorities to take the Choultry within the fold of the A. P. Charitable and Hindu Religious Institutions and Endowments act, 1987 (hereinafter referred to as endowment Act ) met with no response and taking advantage of this, according to the plaint, the appellant took away the material of the Choultry and started constructing shopping complex adverse to the interests of the trust. Along with the suit, the plaintiffs have filed separate application, I. A. No. 1455 of 1992, under Section 92 of Civil Procedure code for the leave of the Court. The plaintiffs have also filed petition under order 39 Rules 1 and 2 in I. A. No. 1457 of 1992 for injunction restraining the appellant, his men and followers from proceeding further with the construction on the plaint A-Schedule property.
( 2 ) THE trial Court granted leave ex parte to file suit and also granted interim injunction. The appellant opposed the petition contending that the building and site was mutated in the name of Bhagawanrao, his father long back and that there was no Choultry and Chalivendram for the past 40 years, and that there is no public trust, much less public endowment. It was also contended that granting leave by the trial Court under Section 92 of Civil Procedure Code without notice to the, defendant is illegal, that he has already constructed shopping complex by spending an amount of 1,50,000 upto the ceiling level and only slab has to be put up and that he is willing to complete the laying of slab to aviod waste of material subject to the result of the suit. " The trial Court after hearing both the sides made interim injunction absolute on 15th September, 1992. Against this order, the appellant-second defendant has come up with this appeal contending:1. that though the Court is hot bound to give notice to him under Sec. 92 civil Procedure Code, as a rule of caution, it should have given s
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
