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ANDHRA PRADESH HIGH COURT
B.S. Bhanumathi, J.
The District Co-operative
Marketing Society (DCMS) – Petitioner
versus
Varam Soujanya – Respondent
Civil Revision Petition No.578 of 2024
Decided on 28.3.2024
(A) Civil Procedure Code, 1908 – Order XXXIX Rules 1 and 2 – Interim Injunction – Grant of – Parameters – Relief of interim injunction is an equitable relief for grant of which petitioner must be able to establish prima facie case, balance of convenience and irreparable loss – No injunction can be granted against true owner, only when person seeking relief is in lawful possession and enjoyment of property and also legally entitled to be in possession, not to dispossess him except according to procedure of law – First of all petitioner must be able to establish prima facie case and must also
approach Court with clean hands to
acquire equitable relief of injunction – Out of three principles, prima facie case is sine qua non and not all three are not required to grant relief of injunction – Since temporary injunction is discretionary relief and once trial Court grants or refuses order exercising discretion, same will not be normally interfered, unless it is found that such discretion was exercised arbitrarily, capriciously or perversely or where Court ignored settled principles of law. (Paras 11, 12, 14 and 15)
(B) Civil Procedure Code, 1908 – Order XXXIX Rules 1 and 2 – Interim Injunction – Grant of – Basis for claiming title and possession by plaintiff is gift-deed in which there is no reference to source of title of husband of petitioner – Admission by respondent that petitioner encroached into property of respondent cannot be treated as admission of possession by petitioner – Petitioner must be able to establish legally sustainable possession and not mere possession – When petitioner could not establish prima facie case merely on the ground of balance of convenience, equitable relief of interim injunction cannot be granted, leaving it to fate of respondent to fight throughout trial – An encroacher cannot seek equitable relief of injunction so as to prevent real owner from protecting property – Order of appellate Court is against principles of law to grant interim injunction and accordingly set aside – Order passed by Trial Court restored. (Paras 16 and 17)
Result: Civil Revision Petition allowed.
IMPORTANT POINTS
(1) Interim Injunction—Relief of interim injunction is an equitable relief for grant of which petitioner must be able to establish prima facie case, balance of convenience and irreparable loss.
(2) An encroacher cannot seek equitable relief of injunction so as to prevent real owner from protecting property.
ORDER
B.S. Bhanumathi, J.—This civil revision petition is filed under Article 227 of the Constitution of India against the order dated 05.01.2024, allowing the petition in CMA.No.06 of 2023 on the file of Court of VI Additional District Judge, Kadapa filed against the Order dated 04.04.2023, dismissing the petition in I.A.No.878 of 2022 in O.S.No.908 of 2022 on the file of Court of the III Additional Junior Civil Judge, Kadapa filed under Order XXXIX Rules 1 and 2 of CPC by the plaintiff seeking interim injunction restraining the defendant and its men/agents from interfering with the peaceful possession and enjoyment of the following suit Schedule property:
Kadapa District, Kadapa Rural Sub-District, Kadapa Municipal Corporation Area, Chemmumiahpet area, Chemmumiahpet, D.No.45/102-1 of R.C.C. Slab Medde House, Vacant Site fall in S.No.573-1/B to an extent of Ac.0.02 cents 09 square links or 0.008 hectares, R.C.C.slab house, vacant site, etc bounded by:
“East: Houses of V.Subbanna, V.Venkatesulu
West: Rastha,
North: Rastha,
South: House of V.Sreenivasulu
Within these boundaries running, East-West: 19 feet or 5.79 meters, North-South: 48 feet or 14.64 meters, land to an extent of Ac.0.02 cents 9 square links or 101.33 square yards, the measurements of the ground floor medde R.C.C. slab house, East-West: 19 feet or 5.79 meters, North-South: 46.5 feet or 14.18 meters, an extent of 883.5 square yards of R.C.C. Slab Medde House, the measurements of first floor is East-West: 19 feet or 5.79 meters, North-South: 46.5 feet or 14.18 meters, an extent of 883.5 square feet of R.C.C. Slab house, the measurements of Second floor is East-West: 19 feet or 5.79 meters, North-South: 15 feet or 4.57 meters, an extent of Ac.285.5 square feet of R.C.C. slab, house in Second floor, with all right in one foot site, vacant site, roofs with its attachments, doors, windows, with all constructions, etc., electric fittings. H.S.C.No.2112701063053 meter, etc.”
2. The plaintiff filed the suit for permanent injunction restraining defendant, its men/agents etc., from interfering with the peaceful possession and enjoyment of the plaintiff in respect of the plaint schedule property. The case of the plaintiff is briefly as follows:-
The plaintiff is the absolute owner of the suit schedule property having acquired the same by her under a registered gift deed bearing document No.4200 of 2022 dated 11.05.2024 from her husband followed by the delivery of possession. Her husband acquired the said property from his ancestors, who had been in enjoyment of the same for more than 50 years. The house constructed by her husband is being renovated by her, but the defendant and its men are obstructing the activities of construction though the defendant has no title or possession. On 05.09.2022, the defendant, with its hired men, tried to interfere with the activities of the plaintiff, however the plaintiff could prevent them with the aid of the neighbours and thereby, the defendant and the men left the place saying that they would come again with sufficient men and material, including the police, to dispossess the plaintiff from the suit schedule property.
3. With such averments, the interlocutory application in I.A.No.878 of 2022 was filed. The petition was opposed by filing counter of the respondent/defendant denying the averments made in the petition and further stating briefly as follows:
The respondent got its site in the year 1965, from one Rama Krishna Reddy and ever since then, it has been in possession of the same without any hindrance from anyone, much less the petitioner or her husband. The petitioner started making constructions by enc
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