A. BALAIAH Vs. ARAVINDANAGAR COOPERATIVE HOUSING SOCIETY

JUDGEMENT

(1.) This C. M. A. is directed against the order of the IV Additional Judge, City Civil Court, Hyderabad in I. A. No. 685/79 in O. S. No. 615/79 on his file issuing an ad interim injunction ex parte restraining the defendant-appellants at the instance of the plaintiff respondent from interfering with the plaintiff - respondent's possession and enjoyment of plant schedule properties approximately measuring 5000 square yards forming part of survey No. 97 in Bagh Lingampally village near Ashoknagar, within the limits of Municipal Corporation of Hyderabad.

(2.) A few facts preceding the institution of the suit O.S. No. 615/79 may be briefly stated : The petitioners herein who are washermen by profession instituted a representative suit O.S. No. 101/77 on the file of the II Assistant Judge, City Civil Court, Hyderabad on 28-1-77 against the respondent therein and two others for a perpetual injunction in respect of a plot of land which forms the subject matter of O.S.No. 615/79 and also moved the Court for a temporary injunction in I.A. No. 83/77 to restrain the defendants therein from interfering with the plaintiffs washing clothes in the suit site, An interim injunction was granted ex parte on 29-1-77, The defendant-respondents therein filed I.A. No, 101/77 to vacate interim injunction in I.A. No. 83/77. By an order dated 22-2-77 the interim injunction order was made absolute and I.A. No. 101/77 was dismissed. As against the said order the defendants therein preferred a C.M.A. but the same was dismissed on 8-7-77. As against that order the defendants filed a Civil Revision Petition in this Court. The plaintiff-petitioners in whose favour the injunction was ordered also filed a Civil Revision petition questioning the finding of the appellate court. Both the C. R. Ps., were dismissed on 19-12-1978 by this court. While these matters were pending the plaintiffs filed I.A. No. 1481/78 to implead the Government of Andhra Pradesh and the Life Insurance Corporation of India as party defendants in the suit. They also filed I.A. No. 1021/78 for amendment of the plaint so as to include the relief of declaration of an easementary right valuing the said relief at Rs. 500/-. The learned Additional Judge however held that in view of the value of the relief claimed by way of amendment the court had no pecuniary jurisdiction to entertain the suit and accordingly by an order dated 19-7-79, directed the return of the plaint for presentation to proper court and granted fifteen days time for such presentation. Before the expiry of the said period of fifteen days the defendants in O.S. No. 101/77 on the file of the II Assistant Judge, City Civil Court, Hyderabad on filed the present suit O.S. No. 615 of 1979 in the court of the IV Additional Judge, City Civil Court, Hyderabad on 27-7-79 against the plaintiffs of the previous suit for a declaration that the plaintiffs are the absolute owners of the plaint schedule property and for consequential injunction restraining the defendants therein from interfering with the possession and enjoyment of the plaintiff over the plaint schedule property. Along with the plaint they also filed an application I.A. No. 685/79 seeking an ex-parte temporary injunction restraining the respondents in the said petition from interfering with the petitioner's possession and enjoyment of the plaint schedule property and further restraining them from doing any work of washing clothes in the plaint schedule property. By the order now under appeal, the learned IV Additional Judge City Civil Court, Hyderabad ordered temporary injunction exprate holding that "the petitioner has substantiated that the object of granting injunction would be defeated by delay." Having heard counsel for both the parties at length and in the view we are taking, we deem it unnecessary to notice the other facts and express any opinion thereon, lest it embarrass the lower court which has to finally dispose of the matters.

(3.) A preliminary objection was taken by Mr. Y. Sivarama Sastry, the learned counsel for the plaintiff - respondents that this appeal is not maintainable. According to him the ex parte temporary injunction issued by the lower court is one made under Or. 39 Rule 3 C.P.C. No appeal is provided against such an order by. Order 43 Rule 1(r) C.P.C. An appeal lies only against the order of temporary injunction made after hearing both the parties under Or. 39 Rule 1 or 2 C.P.C. and not against an ex parte Order made under Order 39 Rule 3 C.P.C. On their hand it is contended by Mr. Anjappa, the learned Counsel for the defendant - appellants that the party aggrieved by an ex parte ad interim injunction has a right to appear before the lower Court and file a counter and seek the vacation of the interim injunction or prefer an appeal under Or. 43 Rule 1(r) C.P.C.