APHC010227402025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI Its: THURSDAY, THE SEVENTEENTH DAY OF JULY iR TWO THOUSAND AND TWENTY FIVE % PRESENT HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL No.318 of 2025 O Appeal under Order 43 Rule 1 of C.P.C, against the Order and Decree dated 15-04-2025 passed in I.A.No.16 of 2025 in A.S. No. 5 of 2025 on the file of the Court of the XI Additional District Judge, Tenali, Guntur District. Between: 1. Kammela Sambasiva Rao, S/o. Siva Ramakrishna Murthy, Aged about 50 years, R/o. Pesarlanka Village, Kolluru Mandal. 2. Kammela Lakshmi, W/o. Sambasiva Rao, Aged about 48 years, R/o Pesarlanka Village, Kolluru Mandal, Guntur District. ...^ppellants/Petitioners/Plaintiffs/Appellants AND Velivela Subba Rao, S/o Vehkateswarlu, Aged about 50 years, R/o. Pesarlanka Village, Kolluru Mandal, Guntur District. ...Respondent/ Respondent/Defendant/Respondent lA NO: 1 OF 2Q2fi Petition under Section 151: of CPC praying that in the circumstances stated in the affidavit filed in sdP|Dort of the petition, the High Court may be pleased to grant interim injunction restraining the Respondent/ Defendant from interfering with the use of the plaint schedule way with width of 6 feet for the purposes of ingress and egress to the petitioners’ house pending disposal of the appeal. Counsel for the Petitioners Sri P Durga Prasad Counsel for the Respondent : Sri Venkata Subbaiah Poguia The Court made the following APHC010227402025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] THURSDAY,THE SEVENTEENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO: 318/2025 Between; 1.KAMMELA SAMBASIVA RAO, , S/0 SIVA RAMAKRISHNA MURTHY, AGED ABOUT 50 YEARS, R/0 PESARLANKA VILLAGE, KOLLURU MANUAL, W/0 SAMBASIVA RAO, AGED ABOUT 48 YEARS, R/0 PESARLANKA VILLAGE, KOLLURU MANDAL, GUNTUR DISTRICT. 2.KAMMELA LAKSHMI ...APPELLANT(S) AND 1.VELIVELA SUBBA RAO, S/o Venkateswarlu, Aged about 50 years, R/o Pesarlanka Village, Kolluru Mandal, Guntur District. ...RESPONDENT against ordersAppellants beg to present this Appeal Under Section Memorandum of Civil Miscellaneous Appeal being aggrieved by the Order and Decree dated 15-04- 2025 passed in LA.No. 16 of 2025 in A.S. No. 5 of 2025 on the file of the Court of the XI Additional District Judge, Tenali lA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant interim injunction restraining the Respondent/ Defendant from interfering with the use of the plaint schedule way with width of 6 feet for the purposes of ingress and egress to the petitioners’ house pending disposal of the appeal and pass such Counsel for the Appellant{S): 1.P DURGA PRASAD Counsel for the Respondent: 1 .VENKATA SUBBAIAH POGULA The Court made the following: JUDGMENT:- The present appeal is preferred by the appellants/plaintiffs being aggrieved by the order dated 15.04.2025 passed in I.A.No.16 of 2025 in A.S.No.5 of 2025 on the file of XI Additional District Judge, Tenali, rejecting prayer for grant of adinterim injunction restraining the respondent/defendant in interfering with and obstructing the appellants from ingress and egress of 6 feet road as mentioned in schedule to the suit. 2. Appellants preferred O.S.No.707 of 2021 seeking relief of permanent injunction restraining the respondent/defendant from interfering with the peaceful possession and enjoyment with regard to ingress and egress of 6 feet road as mentioned in plaint schedule property. After conducting trial, ultimately the foresaid suit came to be dismissed by Judgment and Decree dated 19.11.2024. Assailing the same, A.S.No.5 of 2025 came to be preferred. The appellants also filed I.A.No.16 of 2025 under Order 39 Rules 1 and 2 for adinterim injunction. By impugned order, the said application came to be rejected vide orders dated 15.04.2025. Assailing the same, the present appeal is filed. now 3. Heard Sri P.Durga Prasad, learned counsel for the appellants and Sri Venkata Subbaiah Pogula, learned counsel for the respondent. Learned counsel for the appellants contended that the order of dismissal is on a flimsy ground that the trial Court record was not received. The Appellate Court refused to entertain the application on merits, which is not sustainable. He also tried to advance arguments on merits of the matter. Learned counsel for the respondent, on the other hand, tried to sustain the order in challenge, however, does not refute the submission that the impugned order is not on merits but rather on technicalities. The relief of adinterim injunction came to be rejected. 6. Perusal of the impugned order goes to show that essentially the Appellate Court has refused to decide the matter on merits merely on the 4. 5. ground that the trial Court record has not been received and that basing on the averments made in affidavit filed in support of I.A. and counter filed by the respondent, the merits and demerits cannot be decided. This Court finds infirmity in the approach adopted. When an application is moved under Order 39 Rules 1 and 2, it is the duty of the Court to examine the same with reference to merits of the matter and record findings on prima facie case, balance of convenience and irreparable loss, before coming to the conclusion of grant or refusal of injunction. As the Court has not proceeded on such basis, this Court finds that the impugned order of dismissal suffers from infirmity. In view of the same, order dated 15.04.2025 passed by lower appellate Court under challenge is hereby set aside and the matter is remanded back to Appellate Court for consideration of I.A.No.16 of 2025 in A.S.No.5 of 2025 afresh after providing an opportunity of hearing to both parties. The Appellate Court is directed to dispose the said I.A. within a period of three (03) months, from the date of receipt of copy of the order. 7. Accordingly, the Civil Miscellaneous Appeal is disposed of. There shall be no order as to costs. 8. As a sequel, miscellaneous petitions, pending if any, shall stand closed. Sd/-S.V.S.R.MURTHY JOINT REGISTRAR / //TRUE COPY// C^FFICER SECTI To 1. The XI Additional District Judge, Tenali, Guntur District. 2. One CC to Sri P Durga Prasad, Advocate [OPUC] 3. One CC to Sri Venkata Subbaiah Pogula, Advocate [OPUC] V R Section, High Court of Andhra Pradesh at Amaravathi. (to despatch the trial court records) 5. Two CD Copies (with records) TK x/na € HIGH COURT DATED:17/07/2025 JUDGMENT CMA No.318of 2025 DISPOSING OF THE CMA WITHOUT COSTS