SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Article Pause Article
judgment-img

2020 Supreme(Telangana) 565

IN THE HIGH COURT OF FOR THE STATE OF TELANGANA
M.S. Ramachandra Rao, T. Amarnath Goud, JJ.
M/s. Vasavi And Gp Infra - Appellant
Versus
D. Bhujalu And Others - Respondent
Civil Miscellaneous Appeal No. 236 of 2020, 237 of 2020
Decided On : 26-08-2020

Advocates:
Gorantla Sri Ranga Pujitha, Advocate, Manohar Reddy Nandyala, Advocate

Headnote:

Civil Procedure Code ,1908 - Order 39 Rules 1 – Land Issue - Decree for demarcation of land - Suit was filed by respondent Nos.1and 2 herein against the appellant and others for a preliminary decree for demarcation of the land admeasuring constituting 1/9th share of the 1st respondent by demarcating and partitioning the same by metes and bounds out of total extent, Along with the suit, respondent Nos.1 and 2 file for grant of ex parte interim injunction restraining the appellant and some of other respondents from creating any third party interest over the suit schedule property by way of sale/mortgage or transfer of the same till disposal of the suit, They also filed for grant of interim injunction restraining the appellant and some defendants therein from raising any constructions or alterations over the suit schedule property till disposal of the suit – Held, Compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known and Nazir Ahmed v. Emperor, This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case - It necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned - Appeals are allowed

JUDGMENT

M.S.Ramachandra Rao, J. - These two appeals arise out of the same suit O.S.No.428 of 2019 on the file of the XV Additional District and Sessions Judgecum-II Additional Family Judge, Kukatpally, Ranga Reddy District and so they are being disposed of by this common Judgment.

2. The appellant in both the appeals is defendant No.42 in the said suit.

3. The said suit was filed by respondent Nos.1and 2 herein against the appellant and others for a preliminary decree for demarcation of the land admeasuring Ac.0.35 gts constituting 1/9th share of the 1st respondent by demarcating and partitioning the same by metes and bounds out of total extent of Ac.11.11 gts in Sy.No.88 of Nanakramguda, Serilingampally Mandal, Ranga Reddy District.

4. Along with the suit, respondent Nos.1 and 2 filed I.A.No.2414 of 2019 under Order 39 Rules 1 and 2 C.P.C. for grant of ex parte interim injunction restraining the appellant and some of other respondents from creating any third party interest over the suit schedule property by way of sale/mortgage or transfer of the same till disposal of the suit.

5. They also filed I.A.No.2415 of 2019 under Order 39 Rules 1 and 2 C.P.C. for grant of interim injunction restraining the appellant and some defendants therein from raising any constructions or alterations over the suit schedule property till disposal of the suit.

6. The plaint schedule property which is mentioned is Ac.3.30 gts out of Ac.11.11 gts in Sy.No.88 of Nanakramguda, Serilingampally Mandal, Ranga Reddy District within the specified boundaries.

7. By separate orders dt.29-11-2019, ex parte ad interim injunction was granted in favour of respondent Nos.1 and 2.

8. Both the said orders are identical and are as under:

"Heard. Perused the record. The pleadings and the averments in the petition prima facie prove the rights of the petitioner/plaintiff over the petition schedule property and also their to share in it.

The averments in the petition further prima facie show the attempts of the respondent in taking steps to sell/mortgage or any transfer over the property to defeat the right o the petition.

As such the balance of convenience and irreparable loss are in favour of the petitioners and they are entitled for urgent orders dispending with notice.

Issue ad-interim injunction restraining the respondents from creating any third party interest over the petition schedule property by way of sale/mortgage or any transfer over the petition schedule property till 27.12.2019, subject to compliance of Order 39 Rule 3 C.P.C."

9. In these appeals, it is the contention of the appellant that the impugned orders passed by the Court below in I.A.No.2414 of 2019 and 2415 of 2019 in O.S.No.428 of 2019 are bereft of reasons, contrary to the mandatory requirement stipulated by Order 39 Rule 3 C.P.C. Reliance is placed on the judgment of the Supreme Court in Shiv Kumar Chadda Vs. Municipal Corporation of Delhi, (1993) 3 SCC 161 .

10. It is further contended that there is no compliance of Order 39 Rule 3 C.P.C. by respondent Nos.1 and 2 though the impugned orders direct them to comply with the same, and that the respondents 1 and 2 failed to deliver to the appellant and to others either in person or by registered post, immediately after order granting temporary injunction was passed, copies of applications for such injunction together with affidavit, plaint and documents; and to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies of affidavit have been so deliver or sent. Other contentions on merits of the claim of the appellant have also been raised.

11. Notice before admission order was issued by this Court on 28-07-2020 in both these matters and it was stated at that time by the learned counsel for appellant that respondent Nos.3 to 49 are not necessary parties.

12. Notices have been served in both the appeals on respondent Nos.1 and 2 and Sri N.Manohar Reddy, learned counsel ente

Click Here to Read the rest of this document
1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
whatsapp-icon Back to top