Vemula Damayanthi and Another v. Cheepu Krishna Veni and 8 Others

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guntas of land. When the first respondent was interfering with their possession, the petitioners filed O.S.No.138 of 2019 before the Special Assistant Agent, Mobile Court, Bhadrachalam along with I.A.No.117 of 2019 and the same is pending. Meanwhile, the first respondent herein filed O.S.No.442 of 2020 against respondent Nos. 2 to 9, without adding the petitioners as parties, along with I.A.No.454 of 2020 under order 39 Rule 1 of the Code of Civil Procedure read with Section 42 (c)of A.P.Agency Rules, 1924 seeking to grant temporary injunction along with police protection in her favour. The Sub-Divisional Magistrate, Bhadrachalam granted temporary injunction order vide order, dated 03.11.2020, which is extracted hereunder:

" The petitioner filed a petition under Rule 42 (c) of A.P.Agency Rules, 1924 for seeking interim injunction order and Police Protection and to restrain the Respondents/Defendants not to interfere with the peaceful possession of the petition schedule property. This case coming before me for hearing in the presence of Sri Godaparthi Nagaraju M.A.B.L., Advocate, Bhadrachalam for Petitioner/Plaintiff and upon perusing the affidavit filed in support of the petition and upon perusing the documents filed along with plaint, including the plaint and upon hearing of the advocate for petitioner/plaintiff this court doth order that

"Temporary injunction Order" be issued restraining the respondents/Defendants their henchmen or anybody on their behalf from interfering with the peaceful possession and enjoyment of the petitioner/plaintiff in the scheduled mentioned

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property. The Temporary Order has granted to until further orders."

Aggrieved by the same, the petitioners herein filed this revision by obtaining leave of the Court.

4. The petitioners have filed O.S.No.138 of 2019 in respect of plaint schedule i.e. vacant land admeasuring Ac.0-04 guntas in sy.No.309/30/A of Penuballi Village and Mandal, Khammam District. Whereas, the first respondent filed O.S.No.442 of 2020 in respect of the plaint schedule property i.e. house bearing No. 8-19 to an extent of Ac.0-04 guntas situated at V.M.Banjara/Penuballi Village and Mandal, Khammam District. Undisputedly, when the boundaries are compared, they do not look like one and the same except the extent. The petitioners contended that the schedule property in both the suits is one and the same and by virtue of injunction order, the first respondent is trying to interfere with their possession. But, the learned counsel for the first respondent vehemently opposed the said contention and stated that the Court below granted impugned order on being satisfied with the

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principles for granting temporary injunction in the case of the first respondent.

5. The sole question that falls for consideration is; whether the order of Court below granting ex parte ad interim order of injunction along with police protection without assigning proper reasons is sustainable in law?

6. Undisputedly, under the impugned order, the police protection order was granted by the Court below along with ex parte ad interim order of injunction.

7. In Dalapat Kumar v. Prahlad Singh¹, the Hon'ble Apex Court observed that three essentials that need to be fulfilled while granting injunction viz., prima facie case, balance of convenience and irreparable loss. At para No.4, the Apex Court held as under:

Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing … or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the

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court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

8. It is to be seen whether the assistance of police can be granted to enforce an ex parte ad interim injunction order. In the instant case, the Court below passed a very cryptic order without assigning any reasons to satisfy himself whether the petitioner has satisfied petitioner about essential principles stated supra before granting ex parte ad interim injunction order. Equally, there are no specific reasons assigned for granting police protection simultaneously with injunction order. The Court below committed error in granting the

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impugned order. That apart, it would be premature to enforce such ex parte ad interim injunction order without appearance of opposite party and without there being any averments and proper reasons about the interference in the plaint and affidavit. Usually, on appearance of opposite party only, after hearing both sides, true picture would emerge as to whether order of temporary injunction can be granted and ex parte order of injunction granted earlier can be continued. Usually, a final order under Order 39 Rules 1 and 2 can be enforced with the assistance of the police, if the party establishes necessary circumstances required for enforcement of the said orders.

9. It is needless to state that the Courts have got the inherent powers to execute or direct the police to render such assistance or aid to enforce its orders of injunction. But in the instant case, the Court below has not addressed the above aspects before passing the impugned order. The said aspect of the matter has to be gone into and decided by the Court below and sitting in revision, this Court will not be justified in going into these aspects of the matter. While disposing the application for grant of police aid, the Court

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below has to consider (i) Whether the order of injunction passed is not being obeyed? (ii) Whether the plaintiffs who had secured the order of injunction are not in a position to enjoy the benefits of the order? (iii) what is the conduct of the defendant? And (iv) whether a direction to the police for interference or aid the plaintiffs is absolutely necessary? The Court has to record a finding on the above aspects and thereafter, it should order police aid or protection to enforce the order of injunction.

10. For the foregoing reasons, I am of the view that as the Court below has neither addressed itself nor given a finding as already pointed out to three aspects indicated for grant of order of injunction and so also grant of police aid and committed jurisdictional error in passing such an impugned order. As such, the order of the Court below is wholly unsustainable and the same is liable to be set aside.

11. In the result, the civil revision petition is allowed. The impugned order is set aside. The Court below is directed to dispose of I.A.No.454 of 2020 in O.S.No.442 of 2020 after hearing both the parties within a period of two months from the date of

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receipt of a copy of this order. Miscellaneous petitions, if any, pending in this petition, shall stand closed.

______________________________

JUSTICE A.SANTHOSH REDDY

30.11.2022

Nvl

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HON'BLE SRI JUSTICE A.SANTHOSH REDDY S.A.NOS. 996 and 997 of 2016

COMMON JUDGMENT

S.A.No.996 of 2016 is directed under Section 100 of the Civil Procedure Code, 1908 (for short 'CPC') by the unsuccessful defendant Nos.5,6 and 7 assailing the concurrent findings of the trial Court in O.S.No.4 of 2008 and the first appellate Court in A.S.No.236 of 2010.

S.A.No.997 of 2016 is directed under Section 100 of the Civil Procedure Code, 1908 (for short 'CPC') by the unsuccessful defendant Nos.1 to 4 assailing the concurrent findings of the trial Court in O.S.No.4 of 2008 and the first appellate Court in A.S.No.138 of 2013.

Heard learned counsel for the appellants/defendants and learned counsel for the respondent/plaintiff. Perused the record. I propose to dispose of both the appeals by common judgment as they filed against the same appeal. The parties as they are arrayed in O.S. No. 4 of 2008 will be referred to as such in the course of this judgment.

2. Necessary facts for the disposal of these appeals are as follows:

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3. The respondent The plaintiff-chit fund company has filed the original suit in O.S.No.2371 of 2007 on the file of the learned VIII Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar against the defendants 1 to 6 for recovery of suit claim. The trial Court on receipt of the written statement filed by the first defendant as defendants 2 to 6 remained absent, settled the issues, recorded the evidence of PW.1, marked Exs.A.1 to A.21 and no evidence was adduced on behalf of the first defendant. Accordingly, after closing the evidence on both sides, having heard the learned counsel for the plaintiff and the first defendant decreed the suit of plaintiff for a sum of Rs.2,93,670/- with interest at 12% per annum from the date of filing of the suit till the date of decree 2 AVR,J SA_779_2015 and further interest at 6% per annum from the date of judgment till the date of realization.

3. The first defendant/appellant feeling aggrieved by the judgment and decree dated 14.06.2010 in OS No.2371 of 2007 has filed AS No.236 of 2010 on the file of the IV Additional District Judge, Ranga Reddy District at L.B. Nagar. The learned First Appellate Judge having heard the learned counsel on both sides, formulated the points as contemplated under Order-41 Rule-31 of CPC and answered both the points in favour of the plaintiff and against the first defendant holding that there is no necessity to alter or modify or set aside the judgment and decree in OS No.2371 of 2007 on the file of the VIII Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar and that there are no factual or legal omissions, accordingly, the appeal was dismissed.

4. Feeling aggrieved by the concurrent findings recorded by the trial Court and the first appellate Court, the first defendant has preferred this second appeal. As per the Memorandum of Second Appeal, the following substantial questions of law are formulated:

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i) Whether a decree can be passed in a suit for recovery of money by the court without

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adverting to the strength, weakness or pleading of the defendant?

ii) Whether a decree can be passed in a suit for recovery of money without considering the maintainability of the suit on the ground that the suit is barred by limitation?

iii) Whether a suit has to be decreed basing on the pleadings as well as the evidence on behalf of the plaintiff as well as well as on behalf of the defendant or on the failure of the defendant to prove his defence?

iv) Whether the trial court as well as the appellate court is bound to verify the maintainability of the suit irrespective of the objection raised by the defendant?

v) Whether the trial court as well as the appellate court are bound to give proper finding as to the maintainability of the suit when the defendant has specifically taken a stand in the written statement that the there is a delay in filing the suit and not having any right to file the suit?

5. Heard the learned counsel for the appellant/first defendant. There was no representation on behalf of the respondent/plaintiff and other defendants. The submissions made by the learned counsel for the appellant have received due consideration of this Court. Perused the material available on record.

6. I have carefully perused the judgments of the trial Court and the first appellate Court. Though the appellant/first defendant has filed the written statement denying the suit claim alleging that the suit is barred by limitation and that the allegations that the first defendant has not paid the chit fund instalment amount is not correct, the statement of account is fabricated document, he did not venture to enter into the witness box to speak the contents of the written statement filed by him on oath, thereby avoided cross-examination by the other side. Accordingly after giving ample opportunity, the trial Court has closed the evidence of PW.1. In fact, in such factual situation an adverse inference under Section 114 (g) of Evidence Act may be drawn against the defendant No.1 to the effect that the

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case set up by him is not correct and it is false (Vidhyadar v. Manikrao1). However, having heard on both sides and on appreciation of the available oral and documentary evidence (1999)

3 SCC 573 5 AVR,J SA_779_2015 adduced on behalf of the plaintiff-chit fund company, decreed the suit of plaintiff against the appellant /first defendant and other defendants.

7. The trial Court has clearly observed in para-9 of the judgment that nothing is elicited in the cross-examination of PW.1 and that the bye-laws of the company as Ex.A.17 was served on the first defendant and that there is no other circumstances or material to disbelieve the oral evidence of PW.1 and the contents of Exs.A.1 to A.21, accordingly decreed the suit of the plaintiff.

8. The learned first appellate Judge, after hearing both the parties, formulated the points as contemplated under Order-41 Rule-31 of CPC, re-appreciated the evidence available on record and held that the evidence is sufficient to establish that the first defendant has joined as member in the chit fund scheme of the plaintiff and he was declared as highest bidder, received an amount of Rs.2,75,000/- under the cover of Ex.A.7; Though the first defendant has raised objection that he has not paid Rs.6,000/- under Exs.A.20 and A.21, the oral evidence of PW.1 and recitals of Exs.A.20 and A.21 are sufficient to hold that the 6 AVR,J SA_779_2015 first defendant has paid the said amount to the chit fund company. The learned first appellate Judge has clearly recorded the findings on factual basis holding that Exs.A.20 and A.21 are the receipts in proof that part payment was made by the first defendant and the defendants 2 to 6 were set ex parte, as per the suit documents including Ex.A.6, the liability of defendants is joint and several and that the available oral and documentary evidence is sufficient to establish the liability of the defendants since the first defendant as member of the chief fund scheme and defendants 2 to 6 as his guarantors executed requisite documents liable to repay the suit claim. I do not find any perversity or irregularity in the findings recorded either by the trial Court or by the first appellate Court.

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9. I have given my thoughtful consideration to the substantial questions of law that are proposed by the appellant in the Memorandum of Second Appeal, as extracted above. The first point is whether the plaintiff is entitled for decree only based on the weakness of the case of first defendant. As discussed above, the suit was not decreed merely on the basis of weakness of the first defendant or on the ground that the first defendant failed to 7 AVR,J SA_779_2015 adduce any evidence. Both the Courts below having appreciated the evidence of PW.1 and contents of Ex.A.1 to A.21 concluded that the suit is well within the limitation. The first defendant has joined in the chit fund scheme, he was declared as successful bidder and availed the bid amount on furnishing the guarantors/defendants 2 to 6, I do not find any substantial question of law involved in point No.(i).

10. Point Nos.(ii) to (iv) deals with appreciation of evidence by the trial Court on the relevant aspect and also on the liability of the defendants. As per Exs.A.20 and A.21 and the oral evidence of PW.1 both the Courts below have recorded the clear finding that under Ex.A.20 the first defendant has repaid an amount of Rs.6,000/ and the suit is well within the limitation. The suit of plaintiff is not decreed mere only the ground that the first defendant has failed to adduce any evidence. The trial Court and the first appellate Court have appreciated and re- appreciated the evidence available on record including the objection raised by the first defendant as to maintainability of the suit on the limitation aspect. Thus, I do not find any force in point Nos.(i) to (iv) as extracted above and no question of law 8 AVR,J SA_779_2015 much less substantial question of law is involved in any of the above points.

11. Point No.(v) of substantial question of law formulated by the appellant deals with the maintainability of the suit as he has taken a defence in the written statement that there is delay in filing the suit. As indicated above, relying on Exs.A.20 and A.21 the trial Court and the first appellate Court have concluded that the suit is well within the limitation, I do not find any force in the contention raised by the learned counsel for the appellant in this case.

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12. In that view of the matter, I do not find any question of law much less substantial questions of law in any point Nos.(i) to (v), as extracted above. The trial Court and the first appellate Court have carefully appreciated the evidence, assigned valid reasons to decree the suit and also for dismissal of the first appeal. Thus, all the grounds, as indicated in the substantial questions of law formulated by the appellant, are only on factual basis questioning the manner of appreciation of oral and documentary evidence and consequence of not producing evidence on behalf of defendants etc. 9 AVR,J SA_779_2015

13. Section 100 of CPC deals with second appeals. The existence of a substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 of CPC. The jurisdiction of the High Court is now confined only to entertain such appeals wherein substantial question of law has specifically set out in the memorandum of appeal and formulated by the Court (Thiagarajan v. Venugopalaswamy B.

Koil2 and Dharmarajan v. Valliammal3).

. When the facts of the present case are tested on the touchstone of the principles laid by the Hon'ble Apex Court in the above decision, the answer is in the negative. No question of law much less substantial question of law is made out either from the plain reading of the judgment of the trial Court and the first appellate Court or from the points formulated in the grounds of second appeal. I do not find any irregularity or perversity in appreciation of evidence. Both the Courts below have carefully analyzed and appreciated the evidence with reference to settled principles of law. No material has been over looked nor any inadmissible evidence has been considered by the Courts below for recording such findings and as such, there is no scope for interference in such concurrent findings recorded by the trial Court and the first appellate Court.

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The trial Court and the appellate Court on proper appreciation of evidence oral and documentary evidence available on record upheld the claim of ownership and possession of the plaintiff over the suit schedule property and as such, concurrent findings recorded by the Courts below is on question of fact, cannot be interfered with in the second appeal. It is well settled principle of law that scope of second appeal is very limited. Sub-section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the

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same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or re- formulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar², this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:

"18. In the light of the provision contained in Section

100 CPC and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law

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is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 CPC.

Recently, the Hon'ble Apex Court in Gurnam Singh (D) by LRs and others v. Lehna Singh (D) by LRs³while dealing with the scope of Section 100 of CPC held at para-18 as under:

"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini⁴(2009)

5 SCC 264, despite the catena of decisions of this

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Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."

When the facts of the present case are tested on the touchstone of the principles laid down by the Apex Court in the above decisions, the answer is in the negative. Either from the plain reading of the judgment of the trial Court and the first appellate Court or from the points formulated in the grounds of appeal, no question of law much less substantial question of law is made out. I do not find any perversity in appreciation of evidence. Both the Courts below have carefully analyzed and appreciated the evidence with reference to settled principles of law.

The appellate Court has reappreciated the entire evidence and recorded findings thereon supported by cogent reasoning while

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confirming the judgment of the trial Court. The appellate Court has recorded the findings based on proper appreciation of evidence and do not call for any interference.

In the instant case, both the Courts below have recorded findings on questions of fact based on proper appreciation of evidence and throw up any questions of law, much less, substantial question of law warranting interference exercising jurisdiction under Section 100 of C.P.C.

In the result, both the second appeals are dismissed. Misceallenous applications if any pending shall stand closed.

______________________________

JUSTICE A.SANTHOSH REDDY