Vasanthi and Udaya Pangannaya vs Usha and Others

Hon''ble Mrs. Justice B.V. Nagarathna

This appeal is filed by defendants 2 and 8 in O.S.No. 7/2011, assailing the order dated 29.9.2011, passed on I.A.No. II which is an application filed under Order XXXIX Rules 1 and 2 of C.P.C. By the said order, the appellants herein viz., defendants 2 and 8 were restrained by injunction from putting up any construction in the Darkasth property granted in favour of defendants 2 and 8, pending disposal of the suit.

The relevant facts for the disposal of this appeal are that the. 1st respondent-plaintiff has filed a suit seeking partition and possession in respect of ''B'' schedule properties. After service of notice and summons in the said suit, defendant No. 4 appeared and filed written statement. Defendant No. 4 also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. seeking injunction against plaintiff and defendant Nos. 1, 2, 3 and 8. The said application came to be allowed against only defendant Nos. 2 and 8, who have filed this appeal assailing the said order.

I have heard the learned counsel for the appellants and the learned counsel for the respondents/caveators. In this context, it is to be mentioned that, though notice is not ordered to respondents 1 and 2 in this appeal, the same would not prejudice them since no order of temporary injunction has been issued against the said parties, It is submitted on behalf of the appellants that respondent No. 1 -plaintiff has filed the suit seeking partition and separate possession in respect of ''B'' schedule properties. In the said suit, defendant No. 4 has filed an application seeking temporary injunction against plaintiff and other defendants in respect of certain other properties which are not the subject matter of the suit. He submitted that such an order of injunction could not have been granted in respect of the properties which are not arrayed as suit schedule properties. On the said ground, he prays for allowing the appeal by setting aside the impugned order.

3a. Per contra, learned counsel for the respondents/caveators tried to justify the said order by contending that in the written statement filed by defendant No. 4, it has been submitted that the plaintiff has left out certain properties while seeking a decree for partition and separate possession and that the said properties have been noted as schedule properties in the application filed under Order XXXIX Rules 1 & 2 of C.P.C. He further submits that the Court was justified in granting the said order of injunction against defendants 2 and 3 and that the said order would not call for any interference in this appeal.

Having heard the learned counsel for the petitioners and the learned counsel for the respondents/caveators, it is to be noticed that the 1st respondent-plaintiff has sought the relief of partition and separate possession in respect of her 1/5th share in so far as ''B'' schedule properties are concerned. The schedule properties mentioned in the application filed under Order XXXIX Rules 1 & 2 of C.P.C. are not arrayed as suit schedule items. Defendant No. 4 therefore could not have sought an injunction against the plaintiff and other defendants in so far as the properties mentioned in the said application are concerned when the same are not the subject matter of the suit. The trial Court was therefore not correct in granting an order of temporary injunction in respect of those properties which are not the subject matter of the suit, On that short ground alone the order has to be quashed.

As far as arraying of the said properties as part of the suit schedule properties are concerned, that is the matter left to the plaintiff who has "filed the suit seeking the relief of partition and separate possession. If defendant No. 4 is interested in seeking partition in respect of the properties mentioned in the application filed under Order XXXIX Rules 1 & 2 of C.P.C., then it is for the defendant No. 4 to seek such relief, if he is so advised, in an independent proceeding to be filed by him. In this view of the matter, the order impugned is liable to be quashed. In view of the same, the following order is made :

The impugned order dated 29.9.2011 passed on I.A.No. II in O.S.No. 7/2011, stands quashed. The appeal is disposed of accordingly.

In view of the disposal of the appeal, I.A.1/2011 for stay does not survive for consideration.