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1974 Supreme(AP) 178
Andhra Pradesh High Court
Judges : MADHUSUDHAN RAO, OBUL REDDI
Nawab Mir Barkat Ali Khan - Appellant
Versus
Nawab Zolfiquar Jah Bahadur - Respondent
Decided On : 11-28-74
The grant of a temporary injunction is a discretionary remedy and the court must consider all the relevant factors before granting or refusing an injunction.
Headnote:
INJUNCTION - SUIT FOR PARTITION - APPLICATION FOR INJUNCTION - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - PRINCIPLES GOVERNING GRANT OF TEMPORARY INJUNCTION - APPLICATION OF PRINCIPLES TO FACTS OF CASE - INJUNCTION GRANTED BY LOWER COURT SET ASIDE.
Fact of the Case:
The plaintiffs, Nawab Imdad Jah Bahadur, Nawab Nawazish Jah Bahadur, and Nawab Fazal Jah Bahadur, filed O. S. No. 8 of 1972 on 31st January 1972 against the 1st defendant and 34 others for partition of the Schedule B to D properties, for allotment of their shares (which would come to 42/376), and for mesne profits. It was alleged that the properties are the matruka of the late Nizam of Hyderabad and that the plaintiffs and defendants are entitled to specific shares in the properties as per Mohammadan Law. The 1st defendant filed a written statement raising various contentions and pleading that the suit is merely speculative and calculated to harass him. He also contended that the properties in question are not the matruka of the late Nizam and that he took possession of all the properties of the late Nizam not by inheritance but in his own right, in accordance with the law and custom governing succession in the Asif Jahi Dynasty.
Finding of the Court:
The court held that the plaintiffs have not made out a prima facie case in their favour and that the balance of convenience is not in their favour. The court also held that the plaintiffs would not suffer irreparable injury if the injunction is not granted.
Issues: 1. Whether the plaintiffs have made out a prima facie case in their favour? 2. Whether the balance of convenience is in favour of the plaintiffs? 3. Whether the plaintiffs would suffer irreparable injury if the injunction is not granted?
Ratio Decidendi: The court held that the plaintiffs have not made out a prima facie case in their favour because there is no evidence to show that they are the legitimate sons of the late Nizam. The court also held that the balance of convenience is not in favour of the plaintiffs because the 1st defendant has been in possession of the properties for over five years and has made substantial improvements to them. Finally, the court held that the plaintiffs would not suffer irreparable injury if the injunction is not granted because they can be compensated for any loss they suffer.
Final Decision: The court set aside the order of the lower court granting the injunction.
( 1 ) THIS is an appeal against an order of injunction peridente lite passed by the learned Additional chief Judge-cum-Special Judge for S. P. E. Cases, City Civil Court, Hyderabad in I. A. No. 41 of 1973 in O. S. 8 No. of 1972. The appellant is the first respondent in the interlocutory Application and the first defendant in the suit. The respondents 1, 2 and 3 are the petitioners before the lower Court and they are the defendants 5, 6 and 9 in the suit. The other respondents 4 to 6 are the three plaintiffs who instituted the suit O. S. No. 8 of 1972. For the purpose of convenience the parties will be referred to in this judgment by their positions in the suit.
( 2 ) THE facts which led up to this appea are as follows: the late Nizam of Hyderabad nominated his grandson, the 1st defendant, before his death as successor-Ruler of the State of Hyderabad and sought the necessary recognition of the Government of India. A Certificate of Recognition in favour of the 1st defendant as the Ruler of the State of Hyderabad was issued by the Government of India with effect from the 24th february, 1967-the date on which the nizam died. Soon after the death of the Nizam, the first defendant came into possession of all the movable and immovable properties of the Nizam.
( 3 ) SHORTLY after the death of the late nizam, his legitimate daughter Ahmedunnisa Begum, the 4th defendant filed W. P. No. 863 of 1967 in this Court challenging the Certificate of Recognition issued in favour of the 1st defendant. The writ petition was allowed under an order, dated 29th January, 1968. The 1st defendant preferred an appeal against the order before the Supreme Court of india. While the matter was pending in the Supreme Court, the parties entered into a compromise and the 1st defendant s appeal was allowed by the Supreme court in view of the compromise. In the year 1968 the 1st defendant s father mir Himayat Ali Khan Azam Jab bahadur, filed O. S. No. 105 of 1968 in the court of the Chief Judge, City Civil court, Hyderabad, for admin1stration of the estate of the late Nizam and for separate possession of 7/20 share. While the suit was pending, he filed W. P no. 966 of 1969 in the High Court challenging the Certificate of Recognition, issued in favour of the 1st defendant. . Later he filed LA. No. 1258 of 1969 withdrawing O. S. No. 105 of 1968. By its order, dated 22nd August, 1969 the court dismissed the suit as withdrawn. He had also filed a memo, before the high Court withdrawing W. P. No. 966 of 1969 and the High Court dismissed the writ petition by an order, dated 18th August, 1969 in view of the withdrawal memo.
( 4 ) AFTER the demise of the late Nizam, the 1st defendant filed Estate Duty returns disclosing all the assets of the late Nizam. On the basis of the Returns, a provisional demand of Rs. 1. 36 crores was made and the 1st defendant paid the duty after selling the personal jewellery of the late Nizam valued at about rs. 20 lakhs and other assets such as gold bonds, shares, securities etc. He has further disposed of many items of the estate in the years 1968, 1969, 1970 and 1971. While so, Nawab Imdad Jah bahadur, Nawab nawazish Jah Bahadur and Nawab Fazal Jah Bahadur (the three plaintiffs) instituted O. S. No. 8 of 1972 on 31st January, 1972 against the 1st defendant and 34 others for partition of the Schedule B to D properties, for allotment of their shares (which would come to 42/376) and for mesne profits. It is alleged that the properties are the matruka of the late Nizam of Hyderabad and that the plaintiffs and defendants are entitled to specific shares in the properties as per Mohammadan Law. It is further alleged that the 1st plaintiff is the son of the late Nizam through his wife Jani Begum and that the second and third plaintiffs are the sons of late Nizam through his wife Laila Begum. It is; also alleged that the properties of the late Nizam devolved on his heirs in accordance with the Muslim Law and that the Nizam was
