APHC010362832025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3549] FRIDAY, THE SEVENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA CIVIL MISCELLANEOUS APPEAL NO: 516 OF 2025 Between: 1. CHAMARTHI MALLIKARJUNA, S/O RAMACHANDRA RAJU, AGED ABOUT 36 YEARS, R/O D. NO. 1-8-144/152, AVA SANGARA BUILDING, CRYSTAL POLYMERS AND ADDITIVES, PRENDER CHAST ROAD, SECUNDERABAD - 500003 ...APPELLANT AND 1. CHAMARTHI MAHESWARA RAJU, S/O. LATE C. RAMACHANDRA RAJU, HINDU, AGED ABOUT 53 YEARS, BUSINESS, RESIDING AT D.NO 195/ 196, PRAKASAM ROAD, TIRUPATI TOWN, CHITTOOR DISTRICT, A.P. 2. CHARMARTHI SATHYANARAYAN RAJU, S/O. RAMACHANDRA RAJIU, HINDU, AGED ABOUT 47 YEARS. PERMANENT RESIDENT AT D.NO 195/196, PRAKASAM RAOD, TIMPATHI, CHITTOR DISTRICT, ANDHRA PRADESH, PRESENTLY RESIDING AT D.NO. 1623 EAST END, JAYANAGAR, MAIN ROADA 9TH BLOCK BANGALORE-506041 3. CHAMARTHI RAMACHANDRA RAJA, S/O. LATE C.C. NARAYANA RAJU, HINDU AGED ABOUT 80 YEARS. BUSINESS, RESIDINGAT D.NO. 195/196, PRAKASAM RAOD, TIMPATHI TOWN, CHITTOOR DISTRICT 2 4. CHAMARTHI PRABHAKAR RAJU, S/O. RAMACHANDRA RAJU, HINDU, AGED ABOUT 52 YEARS. BUSINESS, RESIDING AT D.NO 1-10-38/2, GROUND FLOOR, OM BUILDING PRAKASH NAGAR, BEGUMPET,HYDERABAD-16 5. CHAMARTHI RADHAKRISHNAM RAJU, S/O RAMACHANDRA RAJU, HINDU, AGED ABOUT 44 YEARS, BUSINESS, RESIDING AT D.NO. 195/196, PRAKASAM RAOD, TIRUPATHI 6. DR CHARMARTHI MALATHI, W/O. SRIDHAR G. RAJA, HINDU, AGED ABOUT 36 YEARS. DOCTOR BY PROFESSION, PERMANENT RESIDENT OF D.NO. 1-8-144/152, S.B.RPURAM, VADAMALAPETA MANDAL, CHITTOOR DISTRICT, A.P. 7. CHAMARTHI SAROJINAMMA, W/O. RAMACHANDRA RAJU, HINDU, AGED ABOUT 72 YEARS, HOUSEWIFE, RESIDENT AT D.NO 195/196, PRAKASAM RAOD, TIRUPATHI, CHITTOR DISTRICT, ANDHRA PRADES 8. OSCAR FRIGHT PVT LTD, REP. BY ITS CHIEF COORDINATOR RAHUL JOSHI, S/O. NOT KNOWN HINDU, AGED ABOUT 48 YEARS, HAVING ITS OFFICE AT D.NO. 1-10-38/2, OM BUILDING, 2ND FLOOR (FRONT SIDE), BEHIND RAHUL AUTO BAJAJ, PRAKASH NAGAR, BEGUMPET,HYDERABAD-16, A.P 9. SSR LOGISTICS, AUTHORIZED CUSTOMS CLEARING FREIGHT FORWARDING AGENTS, REPRESENTED BY ITS PROPRIETOR R.LAKSHMANA RAO, HINDU, AGED ABOUT 41 YEARS, HAVING ITS OFFICE AT D.NO 1-10-38/2, OM BUILDING, 2ND FLOOR (BACK SIDE) BEHIND RAHUL AUTO BAJAJ, PRAKASH NAGAR, BEGUMPET, HYDERABAD-5600 016. 10. OMEGA GLOBAL LOGISTICS PVT LTD, REPRESENTED BY ITS CHAIRMAN, VIKRAM KATHRO, HINDU, AGED ABOUT 37 YEARS, HAVING OFFICE AT D.NO 1-10-88/2 OM BUILDING, 1ST FLOOR (BACK SIDE), BEHIND RAHUL AUTO BAJAJ, 5600016. PRAKASH NAGAR, BEGUMPET, HYDERABAD 11. BRILLIANT HIGH SCHOOL, REPRESENTED BY ITS CORRESPONDENT, A. MURALI, HINDU, AGED ABOUT 34 YEARS, HAVINGITS OFFICE AT D.NO 8- 178, RAILWAY STATION ROAD. RAILWAY KODURU VILLAGE AND POST, KADAPA DISTRICT. 3 12. KAVERI HOTEL, , REPRESENTED BY ITS PROPRIETOR, B.HARI KRISHNA, S/O. NOT KNOWN, AGED ABOUT 47 YEARS, HAVING ITS BUSINESS AT D.NO 195. PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 13. SPORTS BONANZA, , REPRESENTED BY ITS PROPRIETOR, P.SHAMALA, W/O. P.NARAYANA, HINDU, AGED ABOUT 40 YEARS, D.NO195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 14. BANGALORE BAKERY, REPRESENTED BY ITS PROPRIETOR, K.K.SESHADRIGIRI VASAN, HINDU, AGED ABOUT 34 YEARS, D.NO 108, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 15. SUN BEAM SPORTS, , REPRESENTED BY ITS PROPRIETOR, R.RADHIKA, W/O R.RAVIKANTH REDDY, HINDU, AGED ABOUT 37 YEARS, HAVING HER BUSINESS AT D.NO 195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 16. SHOE SHOPPY, REPRESENTED BY ITS PROPRIETOR, R.RAMESH, HINDU AGED 54 YEARS, HAVING BUSINESS AT D.NO 195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 17. IRANI TEA CENTER, REPRESENTED BY ITS PROPRIETOR, RAVI, HINDU, AGED ABOUT 34 YEARS, HAVING HIS BUSINESS AT D. NO 195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 18. P SRIHARI, S/O P.NARASIMHA REDDY, HINDU, AGED ABOUT 34 YEARS, PROPRIETOR OF TELEPHONE AND XEROX SHOP, HAVING BUSINESS AT D. NO. 195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT 19. P PANDURANGAIAH CHETTY, S/O. NOT KNOWN, HINDU, AGED ABOUT 70 YEARS, PETTY SHOP, HAVING HIS BUSINESS AT D.NO 195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDAL, CHITTOOR DISTRICT. 4 20. JANACHAITANYA HOUSING LTD, REPRESENTED BY ITS MANAGING DIRECTOR, M.SUDHAKAR, S/O M.BHASKARA RAO, HINDU, AGED ABOUT 55 YEARS, RESIDENT OF D.NO 5-1, PASUMALAI COMPLEX, ARANDAL PET, GUNTUR, HAVING BUSINESS AT 2ND 4OOR, AT D. NO 195, PRAKASAM ROAD, BALAJI COMPLEX, TIRUPATI TOWN AND MANDALCHITTOOR DISTRICT. ...RESPONDENT(S): Counsel for the Appellant: 1. V SEETHARAMA AVADHANI Counsel for the Respondent(S): 1. SOORA VENKATA SAINATH 5 The Court made the following JUDGMENT: (per NJS,J) The present Civil Miscellaneous Appeal has been preferred against the orders dated 08.05.2025 in I.A.No.286 of 2024 in O.S.No.32 of 2009, on the file of the Court of the IV Additional District Judge, Tirupati. 2) The 2nd respondent / plaintiff filed the said suit against his father (Defendant No.1), brothers i.e., the respondent No.1 (Defendant No.2), the appellant (Defendant No.5) and others, seeking partition of the suit schedule properties, into six equal shares and allot one such share to him by taking good and bad qualities into consideration by metes and bounds and deliver separate possession of the same to him. 3) The 1st respondent herein filed I.A.No.286 of 2024 in the said suit under Order 39 Rule 1(a) and Section 151 of CPC to grant temporary injunction restraining the defendant Nos.5 and 6 in the suit i.e., the appellant and the 6th respondent herein and creating any third party interest i.e., sale, lease, mortgage etc., in respect of the plaint schedule properties basing on an alleged Will dated 10.08.5008 and Codicil dated 12.04.2012, except item No.29 pending disposal of the suit. The said application was resisted by the appellant / 5th defendant by filing a counter and the same was adopted by the respondent Nos.6, 28 to 31 in the said I.A. 4) The learned District Judge after considering the submissions made by the respective parties allowed the said I.A., and granted temporary injunction restraining the 5th defendant (appellant herein) and the 6th defendant from 6 alienating the plaint schedule properties, except item No.29, till disposal of the suit. 5) Heard Mr. K. Vijaya Bhaskar Reddy, learned counsel for the appellant, who appeared through online. Also heard Mr.Venkat Sainath S, representing the 1st respondent / defendant No.2. Perused the material on record. 6) Learned counsel for the appellant mainly contended that the I.A. in question is not maintainable; there is no cause of action to the 1st respondent / defendant No.2 to seek interim injunction against the appellant, who is the co- defendant in the suit. He submits that the basic ingredients / criteria for granting injunction are not satisfied and the learned District Court, without considering the matter in a proper perspective passed the order under challenge. He submits that if at all, the 1st respondent / defendant No.2 can file a separate suit seeking injunction, but cannot maintain injunction petition in the suit filed by the 2nd respondent / plaintiff. He also submits that in fact the 2nd respondent / plaintiff earlier filed I.A.No.67 of 2009, which was dismissed more than a decade ago and the application in question is filed only with a view to protract the litigation, and the application is lacking bona fides. He further submits that the 1st defendant / defendant No.2 failed to make out a prima facie case for grant of injunction and even otherwise, any alienations pending suit would be saved by Doctrine of lis pendens. He also refers to the decision of a Full Bench of High Court of Karnataka in Smt.Shakunthalamma 7 and Others Vs Smt. Kanthamma and Others1, and seeks to allow the appeal by setting aside the order under challenge. 7) On the other hand, learned counsel for the 1st respondent / defendant No.2 made submissions to sustain the order of injunction impugned in the present appeal. Referring to Order 39 Rule 1(a) of CPC, he made submissions inter alia that any party to the suit, be it plaintiff or defendant, can seek temporary injunction in respect of a suit schedule property from being alienated, damaged etc. He submits that as co-defendants in the suit i.e., the appellant and the respondent No.6 herein are acting contrary to the interest of the 1st respondent herein and others, the application in question was filed and the same is legally permissible. He further submits that in a suit for partition, the status of the defendants is that of the plaintiff and as the plaint schedule properties are being alienated by the above said parties / defendants, the filing of the injunction petition is necessitated. He also submits that the dismissal of I.A. filed by the 2nd respondent / plaintiff as not pressed would not come in the way of the 1st respondent / 2nd defendant to file an application seeking injunction and the delay if any would be of no consequence. While denying the allegations of delay tactics and lack of bona fides, the learned counsel seeks dismissal of the appeal. He also placed reliance on the decisions of the Hon’ble Supreme Court of India in Harish Ishwarbhai Patel Vs Jatin 1 2014 SCC OnLine Kar 12011 8 Ishwarbhai Patel and Others2; A. Krishna Shenoy Vs Ganga Devi G & Ors.,3; M. Gurudas Vs Rasaranjan & Ors.,4 etc. 8) On an appreciation of the rival contentions, the points that arise for consideration are (1) Whether an injunction can be granted on an application filed by the defendant in a partition suit? and (2) Whether the order under challenge is liable to be set aside, in the facts and circumstances of the case? POINT No.1: 9) Order 39 of CPC deals with Temporary Injunctions and Interlocutory Orders. Order 39 Rule 1, (A.P. High Court Amendment) relevant for the present contest is extracted for ready reference: 1. Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, or (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff, 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 the wasting, damaging, alienation, sale, removal or disposition of the property or dispossessing, or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders. 10) A close reading of the above provision of law would indicate that in a suit by way of an application under Order 39 Rule 1(a), temporary injunction can be sought without any qualification / restriction by the plaintiff or defendant 2 2022 SCC OnLine SC 1472 3 2023 LiveLaw (SC) 778 4 (2006) 8 SCC 367 9 in respect of the properties therein from being wasted, damaged or alienated by any party to the suit, and the Court as noted above, may grant relief of injunction to restrain such act, or other relief for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property and that so far as the other limb of reliefs, on an application under Order 39 Rule 1 (b) or (c) exclusively by the plaintiff. The 1st respondent / 2nd defendant in the present case is on a better footing on two counts – the suit is for partition and the injunction was sought for under Order 39 Rule 1(a) of CPC. 11) It is settled law that in a suit for partition, every interested party / defendant is deemed to be a plaintiff. (See: A.Krishna Shenoy cited above). In Azgar Barid (D) by LRs Vs Mazambi & Ors.,5, the Hon’ble Supreme Court appreciated the submission that in a partition suit, all the parties stand on a same pedestal and every party is a plaintiff and defendant and referred to the decisions in Bhagwan Swaroop v Mool Chand6, Dr.P. Nalla Thampy Thera v B.L. Shanker7 wherein it was held that in a suit for partition, the position of the plaintiff and defendant can be interchangeable. 12) In Smt.Shakunthalamma Case (referred to supra), a reference was made to a Larger Bench for consideration as to ―whether the defendant in a suit for declaration and injunction can maintain an application for injunction under Order 39 Rule 1 (c) of the CPC, 1908‖. A Full Bench of the Karnataka High Court while interpreting Order 39 of CPC with reference to the Legal 5 (2022) 5 SCC 334 6 (1983) 2 SCC 132 7 1984 Supp SCC 631 10 precedents answered the issue in the negative. It would be profitable to extract the relevant portion of the decision which reads thus: “12. A careful reading of the aforesaid provision discloses that the Court is empowered to grant three types of orders under three different and distinct situations. Firstly when the property in dispute is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree, temporary injunction to prevent the same can be granted. The second situation arises when the disputed property is under the threat of being removed or disposed of by the defendant with the intention of defrauding his creditors who include the plaintiff also. The third situation is when the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in respect of disputed property. 13. Clause (a) of Order XXXIX Rule 1 CPC provides that where in any suit it is proved by affidavit or otherwise, that any property in dispute in a suit is in danger or being wasted, damaged or alienated “by any party” to the suit, or wrongfully sold in execution of a decree, 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 the wasting, damaging, alienation, sale, removal or disposition of the property. The reason is obvious. After institution of the suit, the plaintiff may act detrimental to the interest of the defendant in the subject matter of the suit by allowing it to be wasted or damaged or alienated and in such an event, the defendant can take recourse to making application under Order XXXIX Rule 1(a) CPC. 14. What Clause (b) of Order XXXIX Rule 1 of CPC envisages is that a plaintiff can seek temporary injunction when there is a threat by the defendant to dispose of the property with a view to render the decree that may be passed in the suit useless or infructuous. Similarly, under Clause (c) of Order XXXIX Rule 1 CPC whenever 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 restrain dispossession of the plaintiff until the disposal of the suit or until further orders. 15. The Legislature has consciously used the words ―any party to the suit‖ in Rule 1(a) of Order XXXIX CPC but the same is conspicuously missing in Clauses (b) and (c). However, the words ―the defendant threatens‖ appearing in Clauses (b) and (c) of Rule 1 of Order XXXIX CPC make it 11 clear that the Court can grant an order of temporary injunction only in favour of the plaintiff because the Legislature has expressly not included the words ―plaintiff threatens‖ and also not used the words ―any party to the suit‖ in these clauses. 16. xxx 17. xxx 18. From the above, it is clear that in a suit filed by the plaintiff, it is open to the defendant to file an application only under Order XXXIX Rule 1(a) of CPC seeking temporary injunction and the Court on being satisfied that a case is made out for grant of such injunction, can grant the same in its discretion. But, the defendant cannot maintain an application under Order XXXIX Rule 1(b) and (c) of CPC at all. 13) In the light of the above stated legal position as also the undisputed factual position of the case on hand, the 1st respondent / 2nd defendant can seek injunction and the order of the learned District Judge granting the said relief is legally permissible. Therefore, the contentions contra including on the cause of action are not sustainable. Point No.1 is accordingly answered against the appellant. POINT No.2: 14) The circumstances under which the I.A. in question was filed were set out in the affidavit and the learned Trial Court after considering the rival contentions while observing that the 5th defendant / appellant cannot alienate the property under the guise of the disputed Will dated 10.08.2018 and Codicil dated 12.06.2012 found prima facie case, balance of convenience and irreparable injury in favour of the 1st respondent / 2nd defendant, though not used specific terminology. In the said circumstances, this Court see no reason to interfere with the well considered order passed by the learned Trial 12 Court exercising its’ discretion. There is no illegality or perversity in the order under challenge. 15) A three Judge Bench of the Hon’ble Supreme Court in Skyline Education Institute (India) Pvt. Ltd., Vs S.L. Vaswani and Another8 referring to the earlier decisions in Wonder Ltd., Vs Antox India (P) Ltd.,9 etc., inter alia held that ―Once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.‖ 16) In view of the legal position and the conclusions arrived at supra, the Point No.2 is answered in favour of the 1st respondent. 17) In the result, the Civil Miscellaneous Appeal fails and the same is dismissed. No costs. 18) Consequently, the Miscellaneous Applications pending, if any, shall also stand dismissed. ____________________ NINALA JAYASURYA, J _______________________ TUHIN KUMAR GEDELA, J DATE:07.11.2025 SSV 8 (2010) 2 SCC 142 9 1990 Supp SCC 727 13 THE HONOURABLE SRI JUSTICE NINALA JAYASURYA THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA CMA No.516 of 2025 Date:07.11.2025. Ssv