Andhra Pradesh High Court Concerned Over Civil Courts Passing Injunction Orders 'Without Considering Essential Legal Ingredients'

The Andhra Pradesh High Court has expressed its anguish at the bland/brief affidavits often being filed in cases for interim injucntions and orders are being passed by Judges "without considering the essential legal ingredients" in each case. The Bench relied on the case Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (dead) through LRs. (2012) in which the Supreme Court opined that the fate of a civil case was often decided by grant or refusal of an interim order and hence, care and caution must be exercised by judicial officers. Facts of the caseIn the facts of this case, the suit was filed by a wife and her minor child for partition of suit schedule properties. After demise of her husband intestate, the defendants i.e., in-laws refused to allow her into the residence. She also filed an interim application under Order 39 Rule 1 CPC to restrain alienation of properties. The impugned order allowing the application was passed after hearing both sides.The counsel for defendants/appellants M. Chalapathi Rao, questioned the order in the interim application. He contended that the suit schedule properties are the self-acquired properties of the father of the deceased and this aspect was overlooked by the trial Court.In reply, counsel for respondent PSP Suresh Kumar, pointed out that the trial Court took a right decision to protect the interest of the minor and her mother as there was danger of property being alienated and by preserving the status quo, no harm would be caused to the defendants. Observation of the CourtThe Bench comprising of Justice DVSS Somayajulu and Justice Duppala Venkata Ramana observed that the Interim Application filed only slightly touched upon the aspect of ‘prima facie’ case and ‘balance of convenience’ but the counter filed was detailed and had several pleas. It said the law is settled that an injunction cannot be granted for mere asking and the petitioner will have to prove that an order is necessary to preserve the existing state of things till a final hearing takes place. The petitioner must prima facie prove that there is a threat and the need to protect the property from being alienated, Court said. The Court found that the affidavit was absolutely bereft of details. In the application, there was no averment that the property was being alienated or that encumbrances were being created. Yet an injunction was granted by Trial court. In the circumstances of the case, the impugned order was set aside. The Court made the following observations before parting with the case:Both the lawyers drafting the affidavits/applications and the Courts passing orders are under a bounden duty to be very careful and diligent in such matters, since interlocutory matters are mostly decided on affidavits.Bland affidavits without details are not enough to grant relief. If there is a threat to the dispossession/demolition/alienation, the threat should be described with reasonable clarity. If there is a right infringed, the manner of infringement should be spelt out with reasonable clarity. The perceived injury must also be explained.Counsels who draft the applications for an injunction must notice the settled law on the subject and draft the affidavit with sufficient clarity and details. The danger or the threat apprehended; the right infringed/likely to be infringed etc., should be explained with clarity to enable the Court to grant an order depending upon the facts that are pleaded.As far as the Courts are concerned, they also have a duty to carefully analyze the affidavits that are filed to decide if there is an infringement or a threat leading to a need for an order of protection. The manner in which the said infringement, threat etc., are described should be considered. The likely injury must be capable of being ascertained. There should be clarity before an order is granted. Prima facie case; balance of convenience and irreparable loss are not empty phrases.With these observations, the civil miscellaneous appeal was allowed. Counsel for appellant: M. Chalapathi RaoCounsel for Respondent: PSP Suresh KumarCase Title: Mundru Ramarao & Ors. versus Mundru Kresha & Anr.Click Here To Read/Download Judgment

Andhra Pradesh High Court Concerned Over Civil Courts Passing Injunction Orders 'Without Considering Essential Legal Ingredients'

Jagriti Sanghi

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