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Thursday, October 9, 2014

Or.1, rule 10 and consequential amendment - injunction granted not to alienate - pending suit properties are alienated - petition to implead them as defendants - notice was order to the proposed respondents , they remain exparte - despite of it the trial court dismissed the application - their Lordships held that The manner, in which the lower Court has passed the impugned order, reflected that it is in a highly confused state of mind. Thus, the reasoning of the lower Court that addition of party after commencement of trial is barred reflects a complete non application of mind on its part as there is no such law and regarding boundaries the plaint schedule vis-a-vis the schedule contained in the sale deed would show that while the former has described the boundaries in terms of plot numbers, the latter has described the boundaries in terms of survey numbers.The fact, however, remains that the survey number remains common both in the plaint schedule and also in the schedule shown in the sale deed.the lower Court has committed a serious jurisdictional error in dismissing the application filed by the petitioners for impleadment of respondent Nos.2 and 3 in the suit.=Civil Revision Petition No.4410 of 2013 04-09-2014 K.Yogender Reddy and another.. Petitioners Smt.K.Usha Rani and 2 others. .. Respondents = 2014 - Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11971

Or.1, rule 10 and consequential amendment - injunction granted not to alienate - pending suit properties are alienated - petition to implead them as defendants - notice was order to the proposed respondents , they remain exparte - despite of it the trial court dismissed the application - their Lordships held that The manner, in which the lower Court has passed the impugned order, reflected that it is in a highly confused state of mind. Thus, the reasoning of the lower Court that addition of party after commencement of trial is barred reflects a complete non application of mind on its part as there is no  such law and regarding boundaries the plaint schedule vis-a-vis the schedule contained in the sale deed would show that while the former has described the boundaries in terms of plot numbers, the latter has described the boundaries in terms of survey
numbers.The fact, however, remains that the survey number remains common   both in the plaint schedule and also in the schedule shown in the sale deed.the lower Court has committed a serious jurisdictional error in dismissing the application filed by the petitioners for impleadment of respondent Nos.2 and 3 in the suit.=

 A perusal of the impugned order would show that the
lower Court has assigned the following reasons for dismissal of
IA.No.100 of 2013:
                (i) that the suit is part heard;
        (ii) that respondent No.1 was thoroughly
        examined;
        (iii) that as per the recent amendment, no
        Court can permit impleadment of a party
        under    Order I Rule 10 CPC, after
        commencement of the trial;
        (iv) that admittedly, the suit schedule property
        alleged to have been sold to the proposed
        parties and     the person having direct interest
        in subject matter of the suit and who would
        be affected     by the result of the suit should be
        allowed to come on record;
        (v) that there is variation in the names given by
        the petitioners in the affidavit filed in
        support of      the IA and the copy of the sale
        deed in that in Para 3 of the affidavit, the
      name of the purchaser was shown as
        Gutta Conventions Services Limited
        represented by  its Director    C.S.Neelkantha
        whereas in Paras       4 and 5, the     name was
        mentioned as Butta Conventions Services
        Limited         represented by its Director
        B.S.Neelkantha;
        (vi) that there is variation in the name of the
        Director in Paras 3, 4 and 5 and that the
        name of the Company is also shown       as Gutta
        Conventions in Para 3 whereas in Paras 3       and
        4, the Companys name is shown as Butta
        conventions.

        I have carefully tried to decipher the true purport of the
order of the lower Court, but, I must confess, I could not
succeed, in my effort, in this regard.  The manner, in which the
lower Court has passed the impugned order, reflected that it is
in a highly confused state of mind.  As noted above, one of the
reasons assigned by it is that, as per the recent amendment, no
third party can be impleaded after commencement of trial.
        A perusal of the Order I Rule 10 (2) CPC shows that it
does not support this reasoning.  The said provision envisages
that the Court may, at any stage of the proceedings, either upon
or without the application of either party, and on such terms, as
may appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person, who ought to have
been joined, whether as plaintiff or defendant, and whose
presence before the Court may be necessary in order to enable
the Court, effectually and completely, to adjudicate upon and
settle all the questions involved in the suit, be added.
        The aforesaid provision does not anywhere bar
impleadment of any party after the commencement of trial.  On
the contrary, sub-Rule (2) of Order X Rule 10 CPC empowers
the Court to strike out or add any party at any stage of the
proceedings, if it feels it just and that the presence of such party
is necessary to enable itself to effectually and completely
adjudicate upon and settle all the questions involved in the suit.
Thus, the reasoning of the lower Court that addition of party
after commencement of trial is barred reflects a complete non-
application of mind on its part.
        With regard to the reason pertaining to the variation in
the names, less this Court deals with it, it is better for the lower
Court.  No doubt, there are variations in the description of the
names of respondent Nos.2 and 3 in different Paras of the
affidavit filed in the support of the application filed for their
impledment in the suit.  The fact, however, remains that there
is no dispute relating to their identity.  In the prayer in the said
application, the petitioner has correctly described the names of
respondent Nos.2 and 3 and the same match with the names  
mentioned in sale deed, dated 25-10-2012, executed by
respondent No.1 in favour of respondent Nos.2 and 3.  This
being the admitted position, reliance on the purported variation
in the description of the names of respondent Nos.2 and 3 in
different paragraphs of the affidavit filed in support of the
implead application is wholly misplaced and the Court is not
expected to rely upon such inconsequential mistakes.  After all,
the intendment of law is to render substantial justice and not to
deny justice on inconsequential or inadvertent mistakes.

He has invited my attention to the
plaint schedule and also to the schedule in the sale deed and
submitted that while the plaint schedule has referred to
different plot numbers as boundaries, the suit schedule referred
only to survey numbers.  This submission of the learned
Counsel is liable to be rejected for more than one reason.      The
lower Court has not made this reason as a ground to dismiss
the application, though respondent No.1 has raised a vague
plea in this regard in Paragraph 4 of her counter-affidavit.
Even otherwise, a perusal of the plaint schedule vis-a-vis the
schedule contained in the sale deed would show that while the
former has described the boundaries in terms of plot numbers,
the latter has described the boundaries in terms of survey
numbers.  It will be a matter for evidence to be adduced by the
parties as to whether respondent No.1 has sold the suit
schedule property to respondent Nos.2 and 3 or not.  The fact,
however, remains that the survey number remains common   
both in the plaint schedule and also in the schedule shown in
the sale deed.

2014 - Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11971

The Honble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.4410 of 2013

04-09-2014

K.Yogender Reddy and another..  Petitioners      

Smt.K.Usha Rani and 2 others. .. Respondents

Counsel for the petitioners: Mr.R.Satyanarayana Reddy

Counsel for respondent No.1: Mr.Vivek Chandrasekhar.S
Counsel for respondent Nos.2 & 3:       Ms.N.Niyatha

<Gist

>Head Note:

Cases referred :

----

The Honble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.4410 of 2013

Dated 04.09.2014

The Court made the following:


Order:
        This Civil Revision Petition arises out of Order, dated
31.07.2013, in IA.No.100 of 2013 in OS.No.308 of 2006, on
the file of the Court of the learned IV Additional District
Judge, Ranga Reddy District (for short the lower Court),
whereby the application, filed by the petitioners for
impleadment of respondent Nos.2 and 3 herein as defendant
Nos.2 and 3 in the suit, was dismissed.
        The petitioners have filed the abovementioned suit
(i) for declaration of their title in respect of plot No.112
admeasuring 1111 square yards in Survey No.13 of Khanamet  
Village, Serilingampalli Municipality, Ranga Reddy District (for
short the suit schedule property); (ii) for ejection of
respondent No.1 from the suit schedule property; (iii) for
putting the petitioners in possession of the suit schedule
property; and (iv) for grant of perpetual injunction restraining
respondent No.1 from interfering with their possession of the
suit schedule property.  The petitioners also sought for a decree
for damages for illegal use and occupation of the suit schedule
property by respondent No.1.
        It is the case of the petitioners that pending the suit, the
lower Court has granted ad interim injunction restraining
respondent No.1 from alienating the suit schedule property.
The petitioners filed IA.No.100 of 2003 under Order I Rule 10
of the Code of Civil Procedure, 1908 (for short the CPC) with
the allegation that despite subsistence of the said order of
injunction, respondent No.1 has executed a registered sale deed
in favour of respondent No.2 represented by respondent No.3,
conveying certain extent of land in Survey No.13, which
includes the suit schedule property.  The petitioners have,
therefore, sought for impleadment of respondent Nos.2 and 3
in the suit.
        Respondent No.1 filed a counter-affidavit wherein she
has pleaded that an extent of Ac.1-10 guntas in Survey No.13
of Khanamet Village was purchased by her under valid
registered sale deed, dated 19-11-1997, from its previous owner;
that the said property was sold to respondent Nos.2 and 3; that
the said property is no way concerned with the suit schedule
property and that therefore, the question of impleading
respondent Nos.2 and 3 in the suit would not arise.
        Respondent Nos.2 and 3 did not appear to have either
entered their appearance or filed their counter-affidavits.
Regrettably, the lower Court has not even referred in its order
as to whether notices were ordered on respondent Nos.2 and 3
and if so, whether they have entered their appearance or not.
However, the learned Counsel for the petitioners pleaded that
as per the established convention, notices were sent to
respondent Nos.2 and 3 and despite the same, they have not
entered appearance and contested the application.  The lower
Court, in my opinion, has committed a serious lapse in not
adverting to this aspect at all.  Be that as it may,  IA.No.100 of
2013 filed by the petitioners for impleadment of respondent
Nos.2 and 3 in the suit remained uncontested by the latter.  By
its order, dated 31-07-2013, the lower Court has dismissed the
said application.
        A perusal of the impugned order would show that the
lower Court has assigned the following reasons for dismissal of
IA.No.100 of 2013:
                (i) that the suit is part heard;
        (ii) that respondent No.1 was thoroughly
        examined; 
        (iii) that as per the recent amendment, no
        Court can permit impleadment of a party
        under    Order I Rule 10 CPC, after
        commencement of the trial;
        (iv) that admittedly, the suit schedule property
        alleged to have been sold to the proposed
        parties and     the person having direct interest
        in subject matter of the suit and who would
        be affected     by the result of the suit should be
        allowed to come on record;
        (v) that there is variation in the names given by
        the petitioners in the affidavit filed in
        support of      the IA and the copy of the sale
        deed in that in Para 3 of the affidavit, the
      name of the purchaser was shown as
        Gutta Conventions Services Limited
        represented by  its Director    C.S.Neelkantha 
        whereas in Paras       4 and 5, the     name was  
        mentioned as Butta Conventions Services 
        Limited         represented by its Director
        B.S.Neelkantha;
        (vi) that there is variation in the name of the
        Director in Paras 3, 4 and 5 and that the
        name of the Company is also shown       as Gutta
        Conventions in Para 3 whereas in Paras 3       and 
        4, the Companys name is shown as Butta  
        conventions.

        I have carefully tried to decipher the true purport of the
order of the lower Court, but, I must confess, I could not
succeed, in my effort, in this regard.  The manner, in which the
lower Court has passed the impugned order, reflected that it is
in a highly confused state of mind.  As noted above, one of the
reasons assigned by it is that, as per the recent amendment, no
third party can be impleaded after commencement of trial.
        A perusal of the Order I Rule 10 (2) CPC shows that it
does not support this reasoning.  The said provision envisages
that the Court may, at any stage of the proceedings, either upon
or without the application of either party, and on such terms, as
may appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person, who ought to have
been joined, whether as plaintiff or defendant, and whose
presence before the Court may be necessary in order to enable
the Court, effectually and completely, to adjudicate upon and
settle all the questions involved in the suit, be added.
        The aforesaid provision does not anywhere bar
impleadment of any party after the commencement of trial.  On
the contrary, sub-Rule (2) of Order X Rule 10 CPC empowers
the Court to strike out or add any party at any stage of the
proceedings, if it feels it just and that the presence of such party
is necessary to enable itself to effectually and completely
adjudicate upon and settle all the questions involved in the suit.
Thus, the reasoning of the lower Court that addition of party
after commencement of trial is barred reflects a complete non-
application of mind on its part.
        With regard to the reason pertaining to the variation in
the names, less this Court deals with it, it is better for the lower
Court.  No doubt, there are variations in the description of the
names of respondent Nos.2 and 3 in different Paras of the
affidavit filed in the support of the application filed for their
impledment in the suit.  The fact, however, remains that there
is no dispute relating to their identity.  In the prayer in the said
application, the petitioner has correctly described the names of
respondent Nos.2 and 3 and the same match with the names   
mentioned in sale deed, dated 25-10-2012, executed by 
respondent No.1 in favour of respondent Nos.2 and 3.  This
being the admitted position, reliance on the purported variation
in the description of the names of respondent Nos.2 and 3 in
different paragraphs of the affidavit filed in support of the
implead application is wholly misplaced and the Court is not
expected to rely upon such inconsequential mistakes.  After all,
the intendment of law is to render substantial justice and not to
deny justice on inconsequential or inadvertent mistakes.
        The plea of the petitioners is that, in defiance of the order
of injunction suffered by respondent No.1, she has sold the suit
schedule property to respondent Nos.2 and 3.  Having regard
to the substantive reliefs claimed by the petitioners viz.,
declaration of title, recovery of possession and perpetual
injunction against respondent No.1, it cannot be said that
respondent Nos.2 and 3, who, allegedly, purchased the suit
schedule property pending the suit and during the subsistence
of the injunction order, are not necessary parties.  Respondent
Nos.2 and 3 are proper and necessary parties to the suit, for, if
they are not impleaded as the defendants, the petitioners may
be forced to institute another substantive proceedings for
invalidation of the sale deed executed by respondent No.1 and
recovery of possession from respondent Nos.2 and 3.  Such a
course would only result in multiplicity of proceedings.  The
lower Court, by dismissing the present application on jejune
grounds, has given room for multiplicity of proceedings.
        Mr.S.Vivek Chandrasekhar, learned Counsel for
respondent No.1, submitted that the property sold by his client
to respondent Nos.2 and 3, is different from the one in respect
of which the suit is filed.  He has invited my attention to the
plaint schedule and also to the schedule in the sale deed and
submitted that while the plaint schedule has referred to
different plot numbers as boundaries, the suit schedule referred
only to survey numbers.  This submission of the learned
Counsel is liable to be rejected for more than one reason.      The
lower Court has not made this reason as a ground to dismiss
the application, though respondent No.1 has raised a vague
plea in this regard in Paragraph 4 of her counter-affidavit.
Even otherwise, a perusal of the plaint schedule vis-a-vis the
schedule contained in the sale deed would show that while the
former has described the boundaries in terms of plot numbers,
the latter has described the boundaries in terms of survey
numbers.  It will be a matter for evidence to be adduced by the
parties as to whether respondent No.1 has sold the suit
schedule property to respondent Nos.2 and 3 or not.  The fact,
however, remains that the survey number remains common   
both in the plaint schedule and also in the schedule shown in
the sale deed.
        For the above-mentioned reasons, this Court is of the
opinion that the lower Court has committed a serious
jurisdictional error in dismissing the application filed by the
petitioners for impleadment of respondent Nos.2 and 3 in the
suit.
        Accordingly, the Order under revision is set aside.
IA.No.100 of 2013 in OS.No.308 of 2006, on the file of the
Court of the learned IV Additional District Judge, Ranga Reddy
District, is allowed.  The lower Court is directed to reopen the
entire case, allow all the parties to amend their pleadings and
adduce additional evidence, if necessary, and dispose of the suit
thereafter.
        As a sequel, CRPMP.Nos.3653 of 2014 in/&  
CRPMP.No.6020 of 2013 are disposed of.        
_____________________  
(C.V.Nagarjuna Reddy, J)
Dt: 4th September, 2014

Or.7, Rule 11 C.P.C. - for rejection of O.P. for Divorce and for Declaration that the decree given by Arizona is not binding on her and for return of gold , cash and for permanent alimony - husband filed application for rejection of main OP - Trial court dismissed - their lordships held that In the instant case, the petitioner is not able to demonstrate that any ground pleaded by him fits into Rule 11 of Order VII, CPC. Even if the facts pleaded by him are taken as true, he is entitled to rely upon the decree passed by the Court at Arizona as a defence. In other words, he can raise the plea of res judicata as one of the defences. It is fairly well established that the plea of res judicata is a mixed question of fact and law. It is only when the relevant facts, namely, that as between the same parties, a Court of competent jurisdiction has decided the issue which falls for consideration in the subsequent set of proceedings, that the Court can refuse to adjudicate the same issue once again. On such facts being proved, it operates as a bar in law. Even when there is no dispute regarding a judgment or decree in a different set of proceedings as operating res judicata, it cannot be a basis for rejection of the plaint. The trial Court has taken the correct view of the matter and this Court is not inclined to interfere with the same. = CIVIL REVISION PETITION No. 5336 OF 2013 02-09-2014 Hareesh Kakarla... PETITIONER E. Sweetha .. RESPONDENTS = 2014 - Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11940

 Or.7, Rule 11 C.P.C. - for rejection of O.P. for Divorce and for Declaration that the decree given by Arizona is not binding on her and for return of gold , cash and for permanent alimony - husband filed application for rejection of main OP - Trial court dismissed - their lordships held that In the instant case, the petitioner is not able to demonstrate that any ground pleaded by him fits into Rule 11 of Order VII, CPC.  Even if the facts pleaded by him are taken as true, he is
entitled to rely upon the decree passed by the Court at Arizona as a defence.  
In other words, he can raise the plea of res judicata as one of the defences.  It is fairly well established that the plea of res judicata is a mixed question of fact and law.  It is only when the relevant facts, namely, that as between the same parties, a Court of competent jurisdiction has decided the issue which falls for consideration in the subsequent set of proceedings, that the Court can refuse to adjudicate the same issue once again.  On such facts being proved, it operates as a bar in law.  Even when there is no dispute regarding a judgment or decree in a different set of proceedings as operating res judicata, it cannot be a basis for rejection of the plaint.  The trial Court has taken the correct view of the matter and this Court is not inclined to interfere with the same. =

The respondent filed O.P No. 1456 of 2012 in the
Additional Family Court, City Civil Court, Hyderabad, for
divorce under Section 13 of the Hindu Marriage Act, 1955 (for
short, the Act) against the petitioner.  Declaration was
sought to the effect that divorce obtained by the petitioner in
the Superior Court of the State of Arizona is not binding on
her.  Other ancillary reliefs in the form of a decree for return
of gold, cash etc., and permanent alimony were also claimed.-

The basis for the petitioner to file an application under
Order VII Rule 11 CPC for rejection of the O.P is a decree
stated to have been obtained from the Court at Arizona,
granting the decree for dissolution of marriage between him
and the respondent.  Even the respondent took note of the
same and claimed the relief by making a specific reference
thereto.

      It is only when the defendant in a suit or a respondent
in the O.P is able to establish the grounds enlisted in Rule 11
of Order VII CPC that the Court can consider the feasibility of
rejecting the plaint or the O.P., as the case may be.  In the
instant case, the petitioner is not able to demonstrate that
any ground pleaded by him fits into Rule 11 of Order VII,
CPC.
Even if the facts pleaded by him are taken as true, he is
entitled to rely upon the decree passed by the Court at
Arizona as a defence.
In other words, he can raise the plea of
res judicata as one of the defences.
It is fairly well established
that the plea of res judicata is a mixed question of fact and
law.
It is only when the relevant facts, namely, that as
between the same parties, a Court of competent jurisdiction
has decided the issue which falls for consideration in the
subsequent set of proceedings, that the Court can refuse to
adjudicate the same issue once again.
On such facts being
proved, it operates as a bar in law.  Even when there is no
dispute regarding a judgment or decree in a different set of
proceedings as operating res judicata, it cannot be a basis for
rejection of the plaint.
The trial Court has taken the correct
view of the matter and this Court is not inclined to interfere
with the same.
      The C.R.P is accordingly dismissed.

2014 - Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11940

HONBLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 5336 OF 2013    
       
02-09-2014

Hareesh Kakarla... PETITIONER

E. Sweetha .. RESPONDENTS    

Counsel for the Petitioner: Smt. K. Lalitha

Counsel for 1st Respondent: Smt. D. Pramada

<GIST:

>HEAD NOTE:  

? Cases referred

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 5336 OF 2013    
Dated:02-09-2014
       

ORDER:


      The petitioner is the husband of the respondent.  Their
marriage took place in the year 2003 at Hyderabad and both
of them started living in USA after marriage.  A child was
born in the year 2009.  Disputes appear to have arisen
between the parties.  According to the petitioner, proceedings
were initiated before the Superior Court in the State of
Arizona and a decree of divorce was granted.

      The respondent filed O.P No. 1456 of 2012 in the
Additional Family Court, City Civil Court, Hyderabad, for
divorce under Section 13 of the Hindu Marriage Act, 1955 (for
short, the Act) against the petitioner.  Declaration was
sought to the effect that divorce obtained by the petitioner in
the Superior Court of the State of Arizona is not binding on
her.  Other ancillary reliefs in the form of a decree for return
of gold, cash etc., and permanent alimony were also claimed.
After receipt of notice in the O.P., the petitioner filed I.A No.
355 of 2013 under Section 7of the Act read with Section 13
and Rule 11 of Order VII CPC, with a prayer to reject the O.P.
According to him, the O.P is not maintainable once the
marriage between the parties has been dissolved by a Court of
competent jurisdiction in USA and where there is no
subsistence of marriage at all, the question of granting
divorce does not arise.

      The respondent opposed the I.A by filing a counter
affidavit.  She pleaded that the decree from the Superior
Court at Arizona was obtained fraudulently and that it is not
binding upon her.  It was also pleaded that even if there
existed a decree, it would constitute the basis for the plea of
res judicata and the O.P cannot be rejected.

      The trial Court dismissed the I.A., through order dated
26-11-2003. Hence this revision.

      Heard Smt. K. Lalitha, learned counsel for the petitioner
and Smt.D. Pramada, learned counsel for the respondent.

      The basis for the petitioner to file an application under
Order VII Rule 11 CPC for rejection of the O.P is a decree
stated to have been obtained from the Court at Arizona,
granting the decree for dissolution of marriage between him
and the respondent.  Even the respondent took note of the
same and claimed the relief by making a specific reference
thereto.

      It is only when the defendant in a suit or a respondent
in the O.P is able to establish the grounds enlisted in Rule 11
of Order VII CPC that the Court can consider the feasibility of
rejecting the plaint or the O.P., as the case may be.  In the
instant case, the petitioner is not able to demonstrate that
any ground pleaded by him fits into Rule 11 of Order VII,
CPC.  Even if the facts pleaded by him are taken as true, he is
entitled to rely upon the decree passed by the Court at
Arizona as a defence.  In other words, he can raise the plea of
res judicata as one of the defences.  It is fairly well established
that the plea of res judicata is a mixed question of fact and
law.  It is only when the relevant facts, namely, that as
between the same parties, a Court of competent jurisdiction
has decided the issue which falls for consideration in the
subsequent set of proceedings, that the Court can refuse to
adjudicate the same issue once again.  On such facts being
proved, it operates as a bar in law.  Even when there is no
dispute regarding a judgment or decree in a different set of
proceedings as operating res judicata, it cannot be a basis for
rejection of the plaint.  The trial Court has taken the correct
view of the matter and this Court is not inclined to interfere
with the same.
      The C.R.P is accordingly dismissed.


      The miscellaneous petitions filed in this revision shall
also stand disposed of.  There shall be no order as to costs.

___________________________    
L. NARASIMHA REDDY, J    
02-09-2014

Order 39 Rule 1 CPC - suit for permanent injunction along with interim injunction filed on 23-6-2014 - I. A. was heard on 22-8-2014 urgent notice was order and adjourn the case for 23-9-2014 - their Lordships held that When a prima facie case is made out, the Courts must grant temporary injunction and see that the plaintiff is not dispossessed in the meanwhile. The urgency of passing of orders under Order 39 Rule 1 CPC should be kept in mind. Even where the Court is not inclined to grant temporary injunction or decides to issue urgent notice in that case also the Court should issue urgent notice and post the matter to a shortest date. When there is urgency in the matter the attitude of the Courts in posting the matter to a longer date, in fact defeat the purpose of Order 39 Rule 1 CPC.= C.R.P. No. 2950 of 2014 03-09-2014 Smt. K. Vijaya Lakshmi.. Petitioner G. Nageshwara Reddy and others .. Respondents = 2014 Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11898

Order 39 Rule 1 CPC - suit for permanent injunction along with interim injunction filed on 23-6-2014 - I. A. was heard on 22-8-2014 urgent notice was order and adjourn the case for 23-9-2014 - their Lordships held that When a prima facie case is made out, the Courts must grant temporary injunction and see that the plaintiff is not dispossessed in the meanwhile.  The urgency of passing of orders under Order 39 Rule 1 CPC should be kept in mind. Even where the Court is not inclined to grant temporary injunction or decides to issue urgent notice in that case also the Court should issue urgent notice and post the matter to a shortest date.   When there is urgency in the matter the attitude of the Courts in posting the matter to a longer date, in fact defeat the purpose of Order 39 Rule 1 CPC.=

Order 39 Rule 1 CPC is as follows.
       1.Cases in which temporary injunction may be
granted.-Where in any suit it is proved by affidavit or otherwise-
       (a) that any property in dispute in a suit is in danger of being
wasted, damaged or alienated by any party to the suit, or wrongfully
sold in execution of a decree, or
       (b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his creditors,
       (c) 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, the Court may by order grant a temporary
injunction to restrain such act, or make such other order for the
purpose of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the
plaintiff in relation to any property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until further orders.

When any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or where the defendant
threatens or intends to remove or dispose of his property with a view to
defrauding his creditors or where the defendant threatens to dispossess
the plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit, the Court may grant a temporary
injunction.  Of course, the plaintiff has to establish prima facie case.  It
becomes the duty of the Courts to examine whether there is any urgency
in the matter or not.  The Courts should go through the averments made
by the party in the supporting affidavit and also the pleadings and
documents filed in support of the case of the plaintiff.  When a prima facie
case is made out, the Courts must grant temporary injunction and see
that the plaintiff is not dispossessed in the meanwhile.  The urgency of
passing of orders under Order 39 Rule 1 CPC should be kept in mind.
Even where the Court is not inclined to grant temporary injunction or
decides to issue urgent notice in that case also the Court should issue
urgent notice and post the matter to a shortest date.  The Court should
examine what is the reasonable time required to serve the notice upon
the respondents.  Where the plaintiff undertakes to serve the notice within
two or three days, the matter need not be adjourned to a longer date.  It
can be posted within four days or a week.  When there is urgency in the
matter the attitude of the Courts in posting the matter to a longer date, in
fact defeat the purpose of Order 39 Rule 1 CPC.

2014 Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11898

THE HONBLE SRI JUSTICE B. CHANDRA KUMAR        

C.R.P. No. 2950 of 2014

03-09-2014

Smt. K. Vijaya Lakshmi.. Petitioner

 G. Nageshwara Reddy and others .. Respondents  

Counsel for Petitioner:  Sri C. Hanumantha Rayudu

Counsel for respondents:     ---

<GIST:

>HEAD NOTE:  


?CASES REFERRED :    

THE HONBLE SRI JUSTICE B. CHANDRA KUMAR        

C.R.P. No. 2950 of 2014

Order:

      This CRP is filed against the docket order dated 22.08.2014 passed
in IA No.1122 of 2014 in OS No.361 of 2014 on the file of the Principal
Junior Civil Judge, Kurnool.
       The petitioner in this revision is the plaintiff in the suit.  She filed
the suit against the respondents herein for permanent injunction in
respect of the suit schedule property i.e., the land admeasuring 561.11
sq. yards bearing plot No.2 in Survey No.920/1, situated at Kallur village
and Mandal, Kurnool District, within Kurnool Municipal Corporation limits,
69th Ward with specific boundaries.  As seen from the stamps of the Court
below the said suit was filed on 23.06.2014.  Along with that suit the
petitioner herein filed IA No.1122 of 2014 under Order 39 Rules 1 and 2
read with Section 151 CPC praying the Court to grant ad interim injunction
restraining the respondents, their men etc., from interfering with her
peaceful possession and enjoyment over the suit schedule property
pending disposal of the suit.  The petitioner in her affidavit specifically
alleged that the defendants without having any right tried to dispossess
her from the suit schedule property on 20.05.2014.  It is also her case
that when the Government officials tried to interfere with her possession
she filed WP No.15041 of 2014 and obtained interim direction in WPMP
No.18639 of 2014 on 03.06.2014.  It is submitted that the said writ
petition is still pending.  IA No.1122 of 2014 was heard on 22.08.2014 and
the learned Principal Junior Civil Judge, Kurnool, passed orders as follows.
       Heard.  Issue urgent notice to the respondents.  Call on
23.09.2014.
      When the suit was filed on 23.06.2014 it is not clear under what
circumstances the matter was heard on 22.08.2014.  Now this revision is
filed challenging the order dated 22.08.2014 in ordering urgent notice to
the respondents.
      Learned counsel for the petitioner submitted that the lower Court
ought to have considered the urgency in the matter and that there is
threat of dispossession of the petitioner from the suit schedule property.
      Order 39 Rule 1 CPC is as follows.
       1.Cases in which temporary injunction may be
granted.-Where in any suit it is proved by affidavit or otherwise-
       (a) that any property in dispute in a suit is in danger of being
wasted, damaged or alienated by any party to the suit, or wrongfully
sold in execution of a decree, or
       (b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his creditors,
       (c) 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, the Court may by order grant a temporary
injunction to restrain such act, or make such other order for the
purpose of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the
plaintiff in relation to any property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until further orders.

      The above referred provision enables the Court to grant temporary
injunction even without issuing notice to the respondents.  The above
provision has been made with an intention to preserve the property as it
is.  When any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or where the defendant
threatens or intends to remove or dispose of his property with a view to
defrauding his creditors or where the defendant threatens to dispossess
the plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit, the Court may grant a temporary
injunction.  Of course, the plaintiff has to establish prima facie case.  It
becomes the duty of the Courts to examine whether there is any urgency
in the matter or not.  The Courts should go through the averments made
by the party in the supporting affidavit and also the pleadings and
documents filed in support of the case of the plaintiff.  When a prima facie
case is made out, the Courts must grant temporary injunction and see
that the plaintiff is not dispossessed in the meanwhile.  The urgency of
passing of orders under Order 39 Rule 1 CPC should be kept in mind.
Even where the Court is not inclined to grant temporary injunction or
decides to issue urgent notice in that case also the Court should issue
urgent notice and post the matter to a shortest date.  The Court should
examine what is the reasonable time required to serve the notice upon
the respondents.  Where the plaintiff undertakes to serve the notice within
two or three days, the matter need not be adjourned to a longer date.  It
can be posted within four days or a week.  When there is urgency in the
matter the attitude of the Courts in posting the matter to a longer date, in
fact defeat the purpose of Order 39 Rule 1 CPC.  In the above
circumstances, I am of the view that there is no need to issue notice to
the respondents in this revision.  The revision can be disposed of at the
admission stage giving following directions to the lower Court.
      The learned Principal Junior Civil Judge is directed to issue notice to
the respondents or their counsel and advance the matter to any date
within a period of seven (7) days from the date of receipt of a copy of this
order and hear the matter within a period of seven (7) days thereafter
and pass appropriate orders in accordance with law.  However, in the
meanwhile, both the parties are directed to main status quo obtaining as
on today with regard to possession.
      Accordingly, the CRP is disposed of.  However, in the
circumstances, no costs.
      As a sequel, the miscellaneous petitions, if any, pending in this
revision shall stand closed.

______________________  
B. CHANDRA KUMAR, J.    
Date: 03.09.2014