KEMPARAJU Vs. BAGHYAMMA

JUDGEMENT

(1.) Heard the arguments of the learned counsel appearing for the petitioner -defendant and also the learned counsel appearing for the respondent -plaintiff.

(2.) Learned counsel appearing for the petitioner herein made the submission that plaintiff filed the suit before the trial Court seeking relief of declaration that 'B' and 'C' schedule properties are cart road and the plaintiff is having every right to make use of the same to reach her house as access and the plaintiff has also sought for mandatory injunction directing the defendant from removing the barbed fence, thatched pandal, firewood and other obstacles from 'B' and 'C' schedule properties and clear off the same. Learned counsel made the submission that during the pendency of the said suit, plaintiff has also filed an application under Order 39 Rule 1 and 2 seeking interim mandatory injunction to direct the defendant to remove the obstacles in respect of 'B' and 'C' schedule property till disposal of the suit.

(3.) Counsel made the submission that detailed objections were filed to the said application by the defendant in the suit. After considering the entire merits of the case, ultimately the trial Court dismissed the application filed by the plaintiff. He submitted that plaintiff preferred Miscellaneous Appeal against the dismissal of the injunction application and the appeal Court allowed the Miscellaneous Appeal and granted interim mandatory injunction as against the writ petitioner -defendant. Hence, learned counsel made the submission the judgment passed by the Appeal Court allowing the appeal and giving such relief itself is illegal and it is not sustainable in law. He also made the submission, when in the main suit itself such a relief has been sought by the plaintiff, it is only after the conclusion of the trial and recording the evidence in the suit, Court can comes to a conclusion whether such relief could be granted or not. It is also his submission looking to the order passed by the appeal Court in Miscellaneous Appeal granting such interim mandatory injunction itself amounts to virtually decreeing the main suit itself and such type of relief cannot be granted by the Court. Hence, he made the submission that the order passed by the appeal Court is not sustainable in law and the same is to be set aside by dismissing the application.