IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION NO.21625 OF 2008 DATED:07.09.2010 Between: Akula Nageshwar Rao … Petitioner And The Commissioner, Greater Hyderabad Municipal Corporation Charminar, Circle No.1, Hyderabad and others … Respondents THE HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION NO.21625 OF 2008 ORDER: In this Writ Petition, the petitioner seeks a declaration by way of Mandamus to declare the action of first respondent in not taking action with regard to unauthorized house construction in the undivided house property bearing H.No.16-3-735, Chenchalguda, Near Kaladera Colony, Hyderabad, as arbitrary and illegal. It is the case of the petitioner that he and third respondent are co- sharers of the house property bearing H.No.16-3-735, Chenchalguda, Near Kaladera Colony, Hyderabad, constructed in a total area of 223 Sq.yards and the said property is still in the name of his great-grand father by name Akula Lingaiah. Though the property is not partitioned among the heirs of Akula Lingaiah, the third respondent has started construction in a portion of the land, illegally. Hence, the petitioner and four others filed O.S.No.555 of 2007, for partition of the said property, before the Court of the VII Senior Civil Judge, City Civil Court, Hyderabad, and obtained an order of status quo. The grievance of the petitioner is the in spite of the said order, the third respondent is proceeding with the construction. A counter affidavit is filed by third respondent. As averred in the counter affidavit, it is the case of the third respondent that the suit property was already partitioned and he is making constructions in the portion which fell to his share. It is submitted that since the petitioner has already filed a suit for partition, the issue has to be resolved in the suit. In that view of the matter, the petitioner cannot seek any relief in this writ petition. Along with the counter affidavit, a copy of the Advocate Notice, dated 13-3-2007, which was sent on behalf of the petitioner, is also filed to show that the petitioner had admitted that earlier there was oral partition among the legal heirs of the original owner of the property by name Akula Lingaiah. A reply affidavit is filed by the petitioner denying the averments made in the counter affidavit and reiterating the contention that though there is an order of status quo, respondent Nos.1 and 2 have not taken any steps to stop the unauthorized construction by third respondent and hence the action of respondents 1 and 2, is illegal and arbitrary. Though there was an order of injunction earlier, ultimately I.A. No.171 of 2007 filed by the petitioner and others for injunction was dismissed by the Court of VII Senior Civil Judge, City Civil Court, Hyderabad, by order dated 08.7.2008, and the matter was carried in appeal in C.M.A. No.208 of 2008 to the Court III Additional Chief Judge, City Civil Court, Hyderabad, which in turn by order dated 13-10-2008 remanded the matter to the trial Court, for disposal afresh on merits. During the course of the arguments, it is submitted by the learned counsel for the petitioner that inasmuch as in spite of the order of status quo, the third respondent has violated the said order and proceeding with the construction, the petitioner has also filed an application under Order 39 Rule 2A of the Code of Civil Procedure, 1908, (CPC) and the same is pending consideration. Although it is the case of the petitioner that there was no partition, the issue is pending consideration before the Court below where the suit is filed by the petitioner. In that view of the matter, as the petitioner has already obtained the order of status quo in the matter, if there is violation of the order, it is open to the petitioner to pursue the application filed under Order 39 Rule 2A of CPC, but at the same time, on the very same ground, the petitioner cannot seek any direction as prayed for, from this Court. The writ petition is devoid of merits and is accordingly dismissed leaving it open to the petitioner to pursue his case in the application filed under Order 39 Rule 2A of CPC before the Court of VII Senior Civil Judge, City Civil Court, Hyderabad. No costs. _____________________ R. SUBHASH REDDY, J 07.09.2010 bnr