ARCHIDIOCESA OF HYD Vs. JASWANTHA RAO

JUDGEMENT

(1.) O.S. No. 689 of 1979 on the file of VI Additional Judge. City Civil Court, Hyderabad, is a suit filed for multiple reliefs ; (1) for cancellation of a deed of revocation executed on 30th March 1979 and registered on 9th May, 1979 by one Mrs. D. Souza (2) for cancellation of two registered sale deeds executed by the above Mrs D. Souza, one dated 7th May 1979 registered as Document No. 1124 of 1979 in respect of an open land admeasuring 940 Sq. yards bearing Municipal No.8.1.9 situate at Sarojinidevi Road, Secunderabad, and (3) for cancellation of another sale deed dated 10th May 1979 registered as Document No. 1135 of 1979 in respect of an open land admeasuring 535 sq yards bearing Municipal No 8.1.9 situate at Sarojinidevi Road and (4) for a permanent injunction restraining the first defendant purchaser from proceeding with any construction over the above propeities shown as 'B' Schedule properties to the plaint.

(2.) Antonio Lawrence D' Souza and his wife Amelia Veridiana D' Souza executed a joint will on 15-10-1972, under which an extent of 2100 sq. yards with the buildings thereon situate on Sarojinidevi Road, Secunderabad, was willed away in favour of The Arcbidiocese of Hyderabad, the first plaintiff in the above O.S. No. 689/79 on the file of the VI Additional Judge, City Civil Court, Hyderabad. Under that will two executors were appointed. Antonio Lawrence D' Souza died on 8-1-73. After his death, his wife Mrs. D' Souza revoked the will by the aforesaid registend deed dated 30-3-1979. On. 7-5-1979 and 10-5-1979, she sold the plaint'B' schedule property covered by the will to the first defendant. The legatee under the above will filed O.S. No. 689/79 to set aside the deed of revccoation executed on 30-3-79 by Mrs. D Souza and the two registered sale deeds dated 7-5-1979 and 10-5-1979 executed by her in favour of the first defendant. The suit was filed by the Archidiocese of Hyderabad in his own name and also in the name of Mrs. D' Souza describing her as mentally infirm and therefore as being represented by her next friend J. D' Souza one of her sons. In this revision we are merely concerned with the question whether or not the lower court was right in refusing to grant an order of temporary injunction in favour of the plaintiff and against the first defendant, the vendee, restraining the latter from constructing upon the site purchased by him under the above two sale deeds. I.A. No. 742/79 was filed by the plaintiffs asking the court to grant a temporary injunction restraining, the first defendant not to construct upon the plaint 'B' schedule property admittedly purchased and take possession of by the First defendant under the above two sale deeds pending disposal of the suit. To that application the first defendant filed a counter on 18-10-1979 opposirg the grant of an injunction and contending that there were no grounds for the grant of a temporary injunction and, therefore, praying that application may be dismissed. But even before filing that counter on 18-10-1979, the first defendant filed as a stop gap arrangement, an underttking on 23-8-79 undertaking not to construct on the 'B' schedule lands till the disposal of the aforesaid I.A. 742/79. That undertaking was recorded by the Court on 23-8-19"/9. But finding that I A. 742/79 had not been disposed of till 9th April 1981, the first defedent had filed on 9th April, 198!, I.A. No. 703/81 Praying that ths court might dismiss I.A. 742/79 and permit him to construct on 'B' schedule lands on the basis of his undertaking to demolish any constructions he might raise without consideration of equities in his favour. This I.A. 703/81 was heard along with I.A. 742 of 79 by then renumbered as I.A. 760/81. The court by its order dated 18-4-1981 dismissed the plaintiffs application I.A No 780/81 and allowed the first defendant's application I.A. 703/81. The effect of this order made by the court on 18lh April, 1981 was to substitute the second undertaking for the first and to refuse the grant of a temporary injunction to the plaintiffs and to permit the first defendant to construct subject to his undertaking to demolish the constructions in the event of the plaintiffs' success in the suit.

(3.) It may be mentioned that the second plaintiff Mrs. D" Souza died before the above order was made by the court. The First plaintiff brought this revision to this court against the order passed by the lower court in I.A. No. 703/81.