CHINNAMMA Vs. N NAGARAJ

JUDGEMENT

(1.) M.F.A. No.49/1994 appeared on board before this Court for orders on 9-2-1995. Respondent-3 to the appeal had filed an I.A. for early hearing. It was his contention that the interim order passed by this Court was prejudicial to him. It was further contended that the other respondents had already applied to the High Court to vacate the interim order and that this Court rejected the application. The respondents filed I.A. III praying that this Court should reconsider the matter on merits and pass appropriate orders. It is relevant for me to point out that the dispute relates to certain properties and that the plaintiffs before the trial Court have contended that their shares of the joint family properties should be carved out and allotted of them. They allege that some of the respondents have been acting prejudicially to the Interest of the joint family and it was further averred in the plaint that there are admissions in the earlier litigations to the effect that the disputed properties constitute joint family property. The trial Court had originally passed an order restraining the defendants from alienating the properties pending disposal of the suit, but subsequently, that order came to be vacated and it is against the order of vacation that the present appeal has been preferred. This background of the case is of some significance because the appeal itself is directed against the interim order. The appeal was admitted and this Court on more than one occasion had taken the view that the original interim order was liable to be restored which was why the interim relief granted by this Court had not been vacated. Undoubtedly, the respondents were entitled to ask the Court to reconsider the matter.

(2.) I have set out this background of the case for a special reason because when the matter was listed on 9-2-1995 under these circumstances, this Court inevitably was required to ascertain from the applicant who had filed I.A. III and from the appellants as to what they desire to say about the merits of the matter. The hearing of I.A. III was no different from the hearing of the appeal in these circumstances. The R-3 was represented by an advocate and the appellants were also represented and after hearing the learned advocates on both sides, this Court confirmed the earlier interim order and directed the trial Court to proceed with the hearing of the suit. In paragraph-3 of that order, this Court had clarified that the passing of the interim order is only for the limited purpose of securing the interests of the plaintiffs and it will not be implied as being a finding on the merits of the matter nor shall it be constructed that the order is passed because the court has taken any prima facie view with regard to the merits. As far as the adjudication of the main dispute was concerned, therefore, the case was absolutely wide open before the trial Court.

(3.) After the matter was disposed of, learned advocates representing original repondents-2, 4,5 and 6 as also respondent-1 pointed out to this Court that they were not present when the order dated 9-2-1995 was passed. They submitted that prejudice is caused to them because of the fact that they were not heard and furthermore, that they desire to make certain submissions which this Court should take note of. It is true that the matter was listed and taken up in normal course and that, therefore, this Court, to my mind, was not obliged to reopen the case thereafter. Since however, I considered that it was only fair and just that the learned advocates should be heard,I directed that the matter should be listed for being spoken to. I have once again heard all the learned advocates representing all the parties today. The basic grievance that has been made and which is related to the ground on which I have reheard the matter is that if some of the learned Counsel were not present when the early hearing of application was made, that they represents several of the defendants and that in their submission, the interim order ought not to have been confirmed. It is true that some of the respondents are represented by other counsel and that they were not present on 9-2-1995 when the earlier order was passed. For that purpose, I have virtually reheard the matter. Mr. Hegde has submitted that the original application for interim relief itself is unjustified because,there was only bald averments in the plaint to the effect that the disputed properties particularly Sy. Nos.124/1 and 124/2 are classified as joint family properties. Mr. Hegde submits that as far as his clients are concerned, they have made out a case that these properties are self acquired properties and he further submits that in one of the earlier proceedings, there is an admission on the part of plaintiff-4 that a partition has taken place within the family. Under these circumstances, it is his case that the learned trial Judge was fully justified in having refused to pass any prohibitory orders in respect of these properties on the footing that they constitute joint family properties. The submissions of Mr. Hegde have been adopted by the other learned Advocates who represents respondents-1 and 3. In essence, Mr. Hegde has sought to rely on an earlier decision of this Court reported in ILR 1992 Kant 2905 in the case of R. Dilip Kumar v. S. Ramu, wherein, while dealing with a similar family dispute, this Court observed that before a temporary injunction is granted, a clear prima facie case should be made out. There is absolutely no dispute with regard to this proposition. Mr. Hegde has submitted that the trial Court has taken note of the contentions raised by both the parties that the trial Court has looked at the relevant revenue extracts and that the trial Court has come to the conclusion that no prima facie case has been made out. He submits that this is a discretionary order and that if he can demonstrate that the discretion is validly and correctly exercised, that again there is no ground for interference with that order. I do not dispute the correctness of this proposition either because it is well settled law particularly while dealing with appeals from interlocutory orders, that merely because some other view is possible, the appeal Court should not interfere with a discretionary order where the discretion is correctly, validly and judicially exercised.