Allowed

Pothini Venkatadri, v. Smt. Koduri Padma

Andhra Pradesh HC19 Mar 2021CRP/1253/2020

Case brief

AI extract

What is this about?

The High Court allowed the revision petition, holding that the trial court violated the principle of audi alteram partem by granting interim injunction against the 3rd defendant without hearing the defendants 1 and 2, who claimed ownership share in the property.

What did the court decide?

Interim injunction order in I.A.No.1071/2019 set aside; matter remanded for fresh disposal after notice to all parties; 3rd defendant restrained from construction pending new order.

Pothini Venkatadri, Vs Smt. Koduri Padma — Property and Title | Andhra Pradesh HC (2021)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

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Civil Revision Petition No.1253 of 2020

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ORDER :

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The petitioners in this C.R.P. are the defendants 1 & 2 in O.S.No.30/2019 on the file of the learned Senior Civil Judge, Chirala and they filed the instant C.R.P. aggrieved by the order dated 17.12.2019 in I.A.No.1071/2019, whereunder the trial Court granted temporary injunction in favour of the plaintiffs against 3^rd defendant from raising further construction in the plaint schedule site.

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2. The facts which lead to file the C.R.P. in narrow compass are thus:

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(a) The plaintiffs are the sisters. Their case is that their father Pothini Subba Rao and 1^st defendant jointly purchased the plaint schedule vacant site of 933.22 square yards under a registered Sale Deed dated 31.10.1973. Later, their father executed a registered Settlement Deed dated 29.07.2019 in favour of the plaintiffs and conveyed his undivided half share in the plaint schedule site in their favour. Subsequently the plaintiffs having failed in oral demand for partition, issued a legal notice dated 22.08.2019 to 1^st defendant seeking partition of the plaint schedule vacant site. He issued a reply notice falsely contending as if the plaint schedule property was already orally partitioned between him and the father of the plaintiffs and later 1^st defendant executed a registered Gift Deed dated 21.05.2008 in favour of his wife/2^nd defendant and both the defendants entered into agreements with 3^rd defendant, who is a

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builder for construction of apartments. It is further contended that the defendants 4 & 5 are alienees of a part of the plaint schedule property. Hence, the plaintiffs filed O.S.No.30/2019 on the file of the learned Senior Civil Judge, Chirala seeking partition of the plaint schedule property against the defendants 1 & 2. Apart from the defendants 1 to 5, the plaintiffs also added the Chirala Municipality as 6^th defendant on the ground that the 3^rd defendant was making construction without permission and 6^th defendant did not take any action.

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(b) In the above suit, the plaintiffs filed I.A.No.1071/2019 seeking interim injunction against the 3^rd defendant restraining him from making further constructions till disposal of the suit. The trial Court upon a full-fledged enquiry passed an order dated 17.12.2019 granting interim injunction restraining the 3^rd defendant from raising further construction in the plaint schedule site till disposal of the suit. It would appear the trial Court, having regard to the facts and documentary evidence placed before it, arrived at a prime facie opinion that there was no oral partition between the 1^st defendant and the father of plaintiffs as contended.

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Hence, the instant C.R.P.

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3. Heard the arguments of Sri Marri Venkata Ramana, learned counsel for petitioners, and Sri Namavarapu Chanti Babu, learned counsel for the respondents.

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4. The main plank of the argument of learned counsel for the petitioners is that the respondents/plaintiffs have mischievously

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claimed interim injunction against 3^rd defendant alone and the trial Court without considering the fact that granting of interim injunction against 3^rd defendant would in fact affect the rights of the defendants 1 & 2 as they are the owners of the plaint schedule property and they entered into agreements with 3^rd defendant to make constructions, issued notice against 3^rd defendant alone and after hearing him passed the interim injunction. Learned counsel lamented that the petitioners/defendants 1 & 2 are the affected parties in true sense and non-serving of notices against them amounts to violation of principles of natural justice.

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5. Learned counsel for the respondents/plaintiffs argued that since 3^rd defendant was making constructions, the Court rightly granted injunction against him alone after hearing him and there was no illegality in the order impugned.

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6. At the outset, this Court is not convinced with the approach of the trial Court. Having regard to the pleadings, the petitioners/defendants 1 & 2 are in fact claiming share in the plaint schedule property as owners. It is their case that there was an oral partition between the 1^st defendant and the plaintiffs’ father and later, 1^st defendant executed a Gift Deed dated 21.05.2008 in favour of 2^nd defendant in respect of his half share and subsequently they entered into agreements with 3^rd defendant, who is the builder, and after obtaining permission from the 6^th defendant, the 3^rd defendant has been making construction of the building.

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In this backdrop of facts, in my considered view, the presence of the petitioners/defendants 1 & 2 during the enquiry in I.A.No.1071/2019 was very much essential because, as rightly argued by the learned counsel for petitioners, the injunction order will affect their rights. Therefore, the trial Court ought to have ordered notice to the defendants 1 & 2 in I.A.No.1071/2019 and after affording them an opportunity of filing their counter and addressing their arguments, ought to have passed an order on merits. Since such exercise was not undertaken in spite of the fact that all the defendants in the suit including the petitioners/defendants 1 & 2 are shown as party respondents in I.A.No.1071/2019, the principle of audi alteram partem has been grossly infringed rendering the order unjust and illegal, and liable to be set aside. While setting aside the impugned order the matter needs to be remanded to the trial Court for fresh disposal after hearing all the parties concerned. At the same time, since admittedly the 3^rd defendant was proceeding with construction of the building till he was injuncted, he should be restrained till the trial Court passes the order afresh.

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7. Accordingly, this Civil Revision Petition is allowed setting aside the order in I.A.No.1071/2019 with a direction to the trial Court to issue notice to all the respondents in the said application and after permitting them to file their counter, hear the petitioners and respondents and pass an appropriate order on merits afresh expeditiously, but not later than six (6) weeks from the date of receipt of a copy of this order. Till such exercise is completed, no further

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constructions shall be undertaken in the plaint schedule property by anybody. No costs.

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As a sequel, interlocutory applications, if any pending, shall

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stand closed.

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U. DURGA PRASAD RAO, J

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19.03.2021 MVA

Pothini Venkatadri, v. Smt. Koduri Padma

Case brief

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Pothini Venkatadri, v. Smt. Koduri Padma

Case brief

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What did the court decide?

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