Smt. A. Sangeeta v. Ganapathi Rao

HON'BLE Dr. JUSTICE B. SIVA SANKARA RAO CIVIL MISCELLANEOUS APPEAL No.1249 of 2017 JUDGMENT :

The petitioner is a third party to the suit O.S.No.964 of 2017 pending on the file of the I Additional Senior Civil Judge at L.B.Nagar of Ranga Reddy District. The suit filed for the relief of declaration of title saying plaintiff is the absolute owner of plot No.215 of 267 sq. yards comprised in Survey Nos.588 to 591 of Jonnabanda, Alwal Village, Medchal Municipality of Ranga Reddy District, now Malkajgiri Revenue District, and also to declare part of the registered document of Sale No.35, dated 08.01.2002, executed by the 3rd defendant in favour of the 1st defendant as vitiated by fraud, null and void and inoperative and not binding on plaintiff to the said extent of 267 sq. yards and to direct the 1st defendant to deliver physical possession of the property and for such other just reliefs. The suit filed was against four defendants.

The appellant herein, who is a third party to the suit, saying he is the donee from the 1st defendant in respect of said 267 sq. yards along with three more donees referred in the registered gift deed, dated 21.06.2017, by names, A.Druva, A.Sri Moukthika and A.Tarunesh. The temporary injunction order passed by the trial Court in I.A.No.661 of 2017, dated 08.11.2017, restraining the defendants from making any constructions in relation to the plaint schedule property of 267 sq. yards in question supra, reads that the respondents 1 to 4 (defendants) of whom notice to respondent No.1/defendant No.1-A.

defendant Nos.2 to 4 served failed to attend, thereby they were set ex parte.

2.

Heard and perused the petition and documents filed in support of the suit.

3.

In ordering issue temporary injunction against the respondents/defendants till the disposal of the suit with no costs, the same is now impugnment, no doubt, even an ex parte order, the Court must assign reasons as to existence of prima facie case, balance of convenience and irreparable injury, which are the pre-requisites for grant of injunction, failing which no injunction under equitable relief can be granted by the court within the judicial discretion. The order simply speaks perused the petition, documents filed in support of suit and ordered temporary injunction. There is nothing indicating existence of the three pre-requisites for grant of injunction. No doubt, the injunction is not to make constructions.

The third party/appellant against that order says the constructions are in progress because he along with the three other donees are claiming through the 1st defendant. Undisputedly, for the 1st defendant there is sufficiency of service held by the Court below from the affixed as contemplated by Order V C.P.C. in setting ex parte for no representation. It is not even the case before the lower Court by the 1st defendant's appearance saying he already alienated or gifted the property in favour of the present appellant and other third parties to the suit and those are necessary parties.

even the 1st defendant remained ex parte, they are if not necessary parties atleast proper parties for the effective adjudication of the lis in the suit. Thereby to sub serve the ends of justice and within the power of the Court though otherwise plaintiff is dominus litis, it will not take away the power of the Court to implead by considering the appeal grounds and other material on record with reference to the gift deed contents from the claim of gift acted upon by their acceptance, all the four donees of the registered gift deed, dated 21.06.2017, are impleaded as defendant Nos.5 to 8 including the third party appellant herein as defendant No.5, so also as respondent Nos.5 to 8 in the injunction petition in I.A.No.661 of 2017 and to sub serve the ends of the justice by reopening that application in I.A.No.

661 of 2017, the order passed earlier is restricting only as an ad interim ex parte injunction as if they are claiming through defendants and the very right of the defendants is impugning by the plaintiff, allow to make any constructions further legal complications may creep in, because it is without considering the proposed contest of the defendants 5 to 8 in the suit since impleaded, the lower Court by treating the order earlier made, by virtue of this order, only as an interim order of injunction and the application in I.A.No.

newly impleaded defendants 5 to 8/respondents 5 to 8 or any of them to file their counters and documents, if any, and dispose of the injunction petition within four weeks from the date of receipt of a copy of this order. In the meantime, if the plaintiff is unwilling to carry the amendment before the trial Court, the office of the trial Court shall carry the amendment. Plaintiff if at all chooses within one week from the date of receipt of a copy of this order, seek for consequential amendment in the plaint, by virtue of this order, to avoid any rejoinder in the plaint wherever it occurred including in the relief portion and for the newly added defendants, the advocate for the appellant herein offers to file Vakalat before the trial Court, the said fact is recorded, otherwise the trial Court shall issue summons to the other defendants 6 to 8/respondents 6 to 8.

4.

With the above directions, the civil miscellaneous appeal is disposed of.

Miscellaneous petitions pending, if any, shall stand dismissed. No order as to costs.

____________________________ Dr. B. SIVA SANKARA RAO, J 18th December 2017.

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