SYED ISMAIL AHMED Vs. MOHD MUSLINUDDIN

JUDGEMENT

(1.) These two Letters Patent Appeals have been filed against a common order passed in C.M.A.Ncs. 744 and 814 of 1993 by a learned single judge of this Court setting aside the order passed in I.A.No. 1176 of 1992 in O.S.No. 1109 of 1992 on the file of the Court of V Additional Judge, City Civil Court, Hyderabad.

(2.) The brief facts of the case are : The parties are mentioned as arrayed in the said suit and also the interlocutory application. The plaintiff represented by his own brother as a special power of attorney holder with the address 17-4-534, outside Yakutpura, Hyderabad, filed a suit for declaration that the plaintiff is the co-sharer of the suit schedule property bearing No. 17-4-536 and 537, situated at outside Yakutpura, Hyderabad, and sought for an injunction against defendants 1 and 2 from alienating the property in favour of defendants 3 to 6. Pending disposal of the suit, the plaintiff sought for a temporary injunction. After hearing the parties, the injunction as sought for, has been granted by the Court below restraining all the defendants from making any construction over the suit properties bearing H.No. 17-4-536 and 537 or alienating or transferring the same. Being aggrieved, defendants 1 and 2 filed C.M.A.NO. 814 of 1993, defendants 3 to 6 filed C.M.A.NO. 744 of 1993 and a learned single judge of this Court found that the view taken by the lower court was not correct, as there is no prima facie case in favour of the plaintiff, nor is there any balance of convenience and set aside the order granting injunction. It is against the order that the present two Letters Patent Appeals have been filed.

(3.) Sri Sehgal, learned Counsel for the appellant-plaintiff, contended that Court cannot be a silent spectator and it is the duty of the Court to consider the case and pass equitable orders. Even though Order 39, Rule 1 C.P.C. in principle does not apply to the facts of the case, the Court is competent to grant injunction under Section 151 C.P.C., if there is a prima facie case. For this proposition, he relied upon a decision of the Supreme Court other co-sharer. He further contended that as the plaintiff is not a consenting party, the sale cannot be made by the 1st defendant in favour of the defendants 3 to 6.