Special Civil Appeal against dismissal of interim injunction application under CPC Order 39 Rules 1, 2. Appeal dismissed as trial Court correctly held no injunction could be granted against true owner with unclean hands.
No order as to costs.
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HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE K.S.APPA RAO
C.M.A.No.1365 of 2011
JUDGMENT: (per the Hon’ble Sri Justice Ghulam Mohammed)
This appeal is directed against the order and decree, dated 16.09.2011, passed by the I Additional District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, dismissing the application in I.A.No.1495 of 2011 in O.S.No.446 of 2011, filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking interim injunction against the respondent/defendant restraining her, her husband, agents, etc., from interfering with the peaceful possession of the petition schedule property by dispossessing the tenants therein, during the pendency of the suit.
The petitioner is the plaintiff. He filed the suit for declaration and for cancellation of the gift settlement deed, dated 11.12.2008, in respect of the suit schedule property executed in favour of defendant.
For the sake of convenience, the parties will be referred to as the plaintiff and defendant.
The un-traversed facts of the case in brief are that the plaintiff is the real elder brother of the defendant; that their father P.Laxminarayana, during his life time acquired house at Kummariguda/Pranajyothi street, Secunderabad, through a registered sale deed and another house at
Kukatpally, Hyderabad; that in respect of these properties, the defendant filed suit-O.S.No.178 of 2010 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad, for partition; that both the plaintiff and the defendant are not disputing the fact that the tenants are in occupation of the petition schedule house consisting of house portions. Hence, the suit for declaration and cancellation of the gift deed filed by the plaintiff. Pending trial, the plaintiff filed the said interlocutory application praying that temporary injunction be granted in his favour since he has made out prima facie case and balance of convenience in his favour.
Learned counsel for the appellant-plaintiff contended that this Court has passed an order of status quo which has to be maintained. He contended that the impugned order is contrary to law; that the trial Court has failed to consider the prima facie case and balance of convenience for grant of injunction; that the trial Court has failed to appreciate the documents-Exs.P-1 to P-5 filed by the plaintiff in proper perspective and the conclusions arrived at are unsustainable. He further contended that the trial Court is not justified in saying that the defendant h a s prima facie title in respect of the suit schedule property even though the gift deed is void and does not confer any title on him.
Learned counsel for the respondent-defendant contended that the suit schedule property originally
belongs to the mother of the plaintiff which does not form part of the partition suit which was filed for declaration; that the suit for cancellation of the document has to be filed only by the person who made it and accordingly, the said suit itself is wrongfully framed and that the trial Court has not committed any error of jurisdiction in dismissing the application of the plaintiff.
Now the point that arises for consideration is as to whether the trial Court has committed an error in passing the impugned order or not?
Heard the learned counsel appearing on either side and perused the relevant material papers available on record.
The trial Court has observed that it is the for the plaintiff to establish that the property gifted under Ex.P-1, the cancellation of which is sought for in the suit, has been acquired by their father in the name of his wife Laxmibai. It also observed that admittedly, the said property is standing in the name of the mother and that the defendant has been collecting the rents from the tenants on behalf of her mother, which is not denied by the petitioner. Therefore, following the settled proposition of law that there cannot be injunction against the true owner and as the petitioner approached the Court with unclean hands, the trial Court dismissed the application.
The aforesaid observations of the trial Court are sound as it appreciated the facts of the case from a proper
perspective, which does not warrant interference by this Court. Hence, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. There shall be no order as to costs.
______________________________ JUSTICE GHULAM MOHAMMED
______________________ JUSTICE K.S.APPA RAO
22nd March 2012 DR
1 issue framed by the court
Whether the trial Court erred in dismissing the application for interim injunction against the defendant.
1 provisions across 1 enactments
Plaintiff
Defendant
Ghulam Mohammed
K.S. Appa Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
