This revision in firm civil revision applied for quashing interim stay order concerning joint family property, which was dismissed by the court.
The revision petition failed and was dismissed; the lower appellate court order stood affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION No.3383 of 2009
ORDER:
This revision is directed against the order dated 9.7.2009 passed in C.M.A. No. 1 of 2009 on the file of the II Additional District Judge, Nalgonda at Suryapet, whereby and whereunder the learned Additional District Judge allowed the Civil Miscellaneous Appeal filed assailing the order dated 23.12.2008 passed in I.A. No.185 of 2008 in O.S. No.120 of 2008 on the file of the Court of the Junior Civil Judge at Kodad.
The background facts of the case in nutshell leading to filing of this revision by the defendant in O.S. No.120 of 2008 are:
The petitioner and the respondent are wife and husband. The respondent-husband filed O.S. No.120 of 2008 on the file of the Court of the Junior Civil Judge, at Suryapet against the petitioner-wife for injunction in respect of a residential house bearing No. 4-107/4, constructed in an area of 195 sq. yards situated in Block No.4 and Plot No.12A, comprising of Survey No. 765/2 of Kodad Revenue Village, within the limits of Kodad Gram Panchayat, Kodad Mandal, Nalgonda District. It is the claim of the plaintiff that he purchased the open plot from Dongara Rama Laxmamma for a consideration of Rs.34,200/under a registered sale deed bearing No.4213 of 2000, dated 6.12.2000. Subsequently, he applied for permission and got the permission approved by the Panchayat Secretary of Gram Panchayat and constructed a house thereon with his own funds. He is in physical possession and enjoyment of the suit house. The petitioner herein is no other than his wife and their marriage was performed on 21.9.1984 before the Registrar of Hyderabad. Out of the wedlock, they are blessed with a male child, viz; Srikanth, who is presently aged about
22 years. The wife was working as a Village Assistant at that time. Subsequently, she got promoted and now she is working as Deputy Tahsildar. Their marital life ran into rough weather, which ultimately led to filing a complaint by the wife against the husband, which formed the basis for registering the case in Crime No. 86 of 2008. The husband filed Criminal Petition No.2720 of 2008 for quashing the criminal proceedings and obtained an interim stay on 7.5.2008. He also filed O.P. No.43 of 2008 on the file of the Senior Civil Judge, Suryapet against the wife for divorce. Apprehending repeated interference of the wife with regard to his possession over the suit schedule house, he filed the suit seeking for perpetual injunction. He also moved I.A. No. 185 of 2008 under Order 39 Rules 1 and 2 read with Section 151 of C.P.C., for grant of temporary injunction.
The wife resisted the application by filing a counter affidavit.
She took the plea that she invested her earnings for purchase of open plot and for construction of the house there in. It is further plea of her that the plaintiff maintained illicit relationship with one Mantripragada Vani, a resident of Srimannarayana Colony, Kodad.
The learned Junior Civil Judge, on a consideration of the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the husband-plaintiff is not entitled for temporary injunction and thereby dismissed the application by order dated 23.12.2008. Consequently, the ad-interim injunction granted on 22.7.2008 stood vacated. The husband field C.M.A. No. 1 of 2009 on the file of the II Additional District Judge, Nalgonda at Suryapet, assailing the order dated 23.12.2008 passed in I.A No. 185 of 2008 in O.S. No.125 of 2008. The learned Additional District Judge, on reappraisal of the material brought on record, formulated the following two points for consideration:
1) Whether the petitioner herein is entitled to seek temporary injunction as prayed for ?
2) Whether there are any grounds to interfere with the order of the trial Court ?
3) To what relief ?
The learned Additional District Judge, having taken into consideration the fact that the respondent-plaintiff is in occupation of the premises and the petitioner-wife is residing at Hyderabad and working as Deputy Tahsildar, Ranga Reddy District, proceeded to allow the appeal by order dated 9.7.2009. Hence, this revision by the wife.
Heard Sri C.B.Rama Mohana Reddy, learned counsel representing Mr. V. Praveen Kumar, learned counsel appearing for the petitioner and perused the order of the trial Court and the order of the appellate Court.
The learned counsel contends that the petitioner being the wife of the respondent-plaintiff is entitled as a matter of right to be in occupation of the premises, even if it stands in the name of the respondent-husband and therefore, no temporary injunction can be granted against the petitioner-wife restraining her from entering into the suit schedule house. In support of his submission, reliance has been placed on the judgment of the Supreme Court in KOMALAM AMMA vs. KUMARA PILLAI RAGHAVAN PILLAI and Others ([1] ) .
The contention of the counsel appearing for the petitioner appears to be impressive at the threshold, but, on a close scrutiny of the material brought on record, I do not detain myself to reject his contention for the following reasons.
Marital relationship between the petitioner and the respondent has gone into rough weather leading to initiation of various criminal cases. It is a matter of record that the petitioner-wife filed a Criminal complaint against the respondent-husband and thereupon the respondent-husband filed a petition before the High Court for quashing
the said criminal proceedings and obtained stay. It is also on record that the respondent-husband filed O.P. No. 43 of 2008 seeking divorce.
Indisputably, the property stands in the name of the respondenthusband. The respondent-husband purchased the house plot and thereafter, constructed a house and has been residing there; whereas the petitioner-wife has been residing at Hyderabad by virtue of her occupation.
In the decision cited by the learned counsel, the question involved was the right of maintenance of the wife, including residence. The suit, out of which the present revision arises is not a suit for maintenance. It is a suit for bare injunction. The primary requisite to obtain temporary injunction is that the plaintiff must be in possession of the property as on the date of suit.
Three essential ingredients for grant of temporary injunction are; prima facie case, balance of convenience and irreparable loss.
Since the respondent-plaintiff is the absolute owner of the property, it can be said that he has a prima facie case. Even coming to the balance of convenience also, the petitioner has been staying away from the respondent-husband for the last ten years by virtue of her employment. The plaintiff would be put to more inconvenience if the temporary injunction is not granted.
In view of the above discussion, I find that the respondentplaintiff has satisfied all the ingredients for grant of temporary injunction. I may make it clear that these observations are made for the disposal of this revision petition only.
The lower appellate Court has considered the material brought on record in right perspective and proceeded to allow the appeal by granting temporary injunction. I do not find any irregularity or illegality in the order passed by the lower appellate Court warranting
interference of this Court in exercise of powers under Article 227 of the Constitution of India.
In the result, the revision petition fails and is liable to be dismissed and it is accordingly dismissed.
However, the trial Court is directed to dispose of the suit, O.S No. 120 of 2008, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. No order as to costs.
_____________________ B.SESHASAYANA REDDY, J
Dt. 13th April, 2010
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[1] 2008-JT-12-157
Mr. V. Praveen Kumar
V. Sravan Kumar
B.Seshayasayana Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
