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2019 Supreme(Telangana) 405
IN THE HIGH COURT FOR THE STATE OF TELANGANA
M.S. RAMACHANDRA RAO, K. LAKSHMAN, JJ.
Rubina Syed Faizuddin and Others – Appellants
Versus
Syed Hamza (Died as per LRs.) and Others – Respondents
Interlocutory Application Nos. 3, 4, 5 of 2019, City Civil Court Appeal No. 18 of 2013
Decided On : 03-12-2019
Advocate Appeared:
For the Appellant : Manjari S. Ghanu.
For the Respondents: Rakesh Sanghi, Anjana Taggarse.
Point of Law :
clearly shows that the Court can treat affidavits as proof of the facts contained therein, the prerequisite, of course, being there. As held above, the language of Clause (1) of Order XXXIX itself permits temporary injunction to be granted in a suit if in the suit, it is proved by affidavit or otherwise that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit
Headnote:
Indian Evidence Act - Sections 145, 18, 1 and 3 - Code of Civil Procedure,1908- Order XXXIX Rule 1 and 2 - Section 30 - Indian Penal Code,1860 - Section 447, 427 read with Section 34 - Mandatory injunction - Seeking police aid for removing personnel/henchmen - Applicants in applications are appellants in the CCCA No. and are also defendant Nos. in O.S. No. 123 of on file of IX Additional Chief Judge - .A. No. is filed by them invoking Order XXXIX Rule 1 and 2 CPC for a mandatory injunction in their favor and against respondents directing the latter to forthwith remove their henchmen from items 2 and 3 of decree schedule properties - A. No. is filed by the applicants seeking police aid for removing personnel/henchmen from these two items of property - A. No.is filed by applicants invoking Order XXXIX Rule 1 and 2 CPC for an injunction restraining the respondents 34 to 38 and other respondents also from interfering with peaceful possession of the applicants in relation to all the items mentioned in decree schedule attached to the preliminary decree -
Finding of the Court:
Applicants in I.A. Nos. /appellants in CCCA No. have a strong case of a higher standard a prima-facie case; they cannot be compensated in terms of money and irreparable loss has been caused to them; balance of convenience is in their favour because disposal of the appeal will take considerable time in this Court and withholding relief in these applications to applicants would prick the conscience of the Court and do violence to it’s sense of justice, resulting in injustice being perpetuated throughout pendency of the appeal and at the end fell - Court would not be able to vindicate cause of justice - It would also amount to illegal conduct of the respondents - Quoted in counter-affidavit/additional counter-affidavits and written arguments by respondent nos. 34 to 37 - . No. 3 of 2019 is allowed - A. No. 5 of 2019 is allowed -
Result: I.A. is allowed -
JUDGMENT :
M.S. RAMACHANDRA RAO, J.
1. The applicants in these applications are appellants in the CCCA No. 18 of 2013 and are also defendant Nos. 26 to 30 in O.S. No. 123 of 1997 on the file of IX Additional Chief Judge, City Civil Court at Hyderabad, out of which the said appeal arises.
2. I.A. No. 3 of 2019 is filed by them invoking Order XXXIX Rule 1 and 2 CPC for a mandatory injunction in their favor and against the respondents 27, 35, 37 and 38 directing the latter to forthwith remove their henchmen from items 2 and 3 of the decree schedule properties.
3. I.A. No. 5 of 2019 is filed by the applicants seeking police aid for removing the personnel/henchmen from these two items of property.
4. I.A. No. 4 of 2019 is filed by applicants invoking Order XXXIX Rule 1 and 2 CPC for an injunction restraining the respondents 34 to 38 and other respondents also from interfering with the peaceful possession of the applicants in relation to all the items mentioned in the decree schedule attached to the preliminary decree dated 24.09.2012 in O.S. No. 123 of 1997 pending the appeal.
5. Interim orders had been passed allowing these applications earlier by this Court on 16.10.2019, but the same were challenged in the Supreme Court of India by the respondents 34 to 37 in these applications in Civil Appeal Nos. 8447-8449 of 2019.
6. The Supreme Court had allowed the said Civil Appeals on 04-11-2019 and set aside the said orders on the ground that interim orders were granted by this Court without giving opportunity to the respondents 34 to 37 to file counter-affidavits in the applications and grant of such interim orders had left the interlocutory applications lifeless, though they were technically pending. It directed this Court to decide the interlocutory applications on merits after allowing the respondents 34 to 38 to file counter affidavits.
7. After remand, respondents 34 to 37 not only filed counter affidavits but also filed additional counter affidavits apart from written arguments through Sri. Rakesh Sanghi, Advocate.
8. The counsel for the applicants filed a reply affidavit to the counter affidavit filed by respondents 34 to 37 and also filed an additional affidavit on 11.11.2019. The matter was heard on 20.11.2019 and orders were reserved.
9. No counter affidavit was filed by respondent no. 27 in these applications, nor were any arguments advanced on his behalf by his counsel Ms. Anjana Taggarse.
10. Other respondents did not file any counter affidavit to these I.As nor appeared through Counsel to contest these I.As.
The Suit:
11. The suit O.S. No. 123 of 1997 had been filed in 1991 as O.S. No. 861 of 1991 in the Court of IV Additional Judge, City Civil Court, Hyderabad for (a) Administration of the estate of one Syed Aziz, who had died in 1960, (b) for ascertaining and determining the share of Syed Hamza, the original plaintiff, (c) for division and allotment of the same to him in the plaint schedule properties and (d) for a direction to pay the amounts due to him from out of the estate of the deceased together with interest, if any, to him and to put him in separate possession of his lawful share in the estate of the deceased.
12. The 1st plaintiff Syed Hamza and defendants 5 to 8 are brothers, and sons of Late Syed Aziz, defendant No. 1 is the wife and defendant Nos. 2 to 4 are the daughters of late Syed Aziz.
13. The 2nd plaintiff is Dr. Syed Afzal, and 5th defendant is Syed Azam. Syed Azam was the eldest among all the children of late Syed Aziz.
14. The applicants in these applications are legal heirs of Syed Azam, the 5th defendant in the suit, who had died pending suit, and they had been impleaded as defendant Nos. 26 to 30 in the suit.
15. Respondents 34 to 38 in these applications are the legal representatives of Syed Afzal (2nd plaintiff) who had died pending the appeal and they were impleaded as parties/respondents 34 to 38. They are the contesting respondents in these I.As.
16. Before we deal with the applications, briefly we shall adver
