IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL MISCELLANEOUS APPEAL No.1072 of 2009 Between: A.V.Ranga Rao, S/o. A.Ramaiah, aged 95 years, Occ: Agriculture, R/o.Agnigundala Village, Ipur Mandal, Guntur District, Temporarily residing at 1-1-336/39/A/1, Chikkadpally, Hyderabad – 020. …Appellant / Respondent No.1 AND M.Brahma Reddy, S/o. Late Malakonda Reddy, Aged 51 years, Occ;Advocate, R/o. #107, Renuka Sakthi Apartments, King Koti Road, Basheerbagh, Hyderabad. And four others. …Respondent / petitioner The Court made the following: THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL MISCELLANEOUS APPEAL No.1072 of 2009 ORDER: This Civil Miscellaneous Appeal is directed against the order dated 24.09.2009 passed in Receive and Transmit Miscellaneous Petition No.34 of 2009. The first respondent herein is the plaintiff in Receive and Transmit Petition No.26 of 2009 (now numbered as O.S.No.338 of 2009 on the file of the Additional Senior Civil Judge, Narasaraopet). The suit came to be presented before the vacation Judge of this Court to receive and transmit the same to the Court of the Principal District Judge (Fast Track Court at Narasaraopet), Guntur District under Section 33 of the A.P.Civil Courts Act, 1972. Interim order also came to be passed restraining respondents 1 to 3 therein, or persons claiming through them, from interfering with the possession and enjoyment of the plaintiff in respect to the petition schedule land. The said order is assailed in this Civil Miscellaneous Appeal. The parties herein are referred to as they are arrayed in the suit. The plaintiff claims to have purchased the property from defendants 4 and 5, under a registered sale deed dated 25.10.2008. The first defendant filed O.S.No.98 of 1998 before the Additional Senior Civil Judge, Narasaraopet, Guntur District, for permanent injunction against the defendants 4 and 5. The suit ended in decree on 22.09.2003. Thereupon, defendants 4 and 5 herein, preferred appeal in A.S.No.4141 of 2003. The plaintiff, in the present suit, claims that he is in possession of the suit schedule property and defendants are trying to interfere with his peaceful possession and enjoyment. For better appreciation, I may refer para 3 of the plaint, which reads as thus. “It is submitted that the 1st defendant while admitting that he had executed a sale deed in favour of defendant Nos.4 and 5 on 16.07.1975, has changed his version by saying that the sale deed is not supported by consideration and it was executed for the purpose of saving the land from agricultural Land Ceiling Act and that the sale deed is nominal. Instead of filing any amendment petition in the suit filed by him for permanent injunction, he filed a rejoinder introducing these facts by filing a separate I.A.353 of 2000 in O.S.No.98 of 1998. The said application was dismissed on 21.06.2000. Aggrieved by the same, the 1st defendant preferred revision CRP No.2782 of 2000. However, he withdrew the same on 03.08.2001 with result the attempt of the 1st defendant to question the sale deed of defendants 4 and 5 ahs been negatived and the order pass in I.A.No.353 of 2000 has become final. Therefore, till today, 1st defendant did not chose to question the sale deed executed in favour of defendant Nos.4 and 5 and he permanently lost his right to challenge the validity or otherwise to the sale deed executed in favour of defendants 4 and 5.” The first defendant assailed the order dated 24.09.2009 passed in Receive and Transmit Petition No.26 of 2009 in this Civil Miscellaneous Appeal. The plaintiff also filed C.M.A.M.P.No.1983 of 2009, seeking suspension of the order passed in Receive and Transmit Miscellaneous Petition No.34 of 2009 in Receive and Transmit Petition No.26 of 2009 dated 24.09.2009. The respondent / plaintiff filed counter detailing the circumstances under which, the suit came to be filed before the vacation Judge of this Court. Heard learned counsel appearing for both the parties. Learned counsel appearing for the appellant submits that the first respondent / plaintiff secured interim orders suppressing the orders suffered by his vendors who have been arrayed as defendants in O.S.No.98 of 1998. A further submission has been made that the first respondent / plaintiff having stepped into the shoes of the defendants in O.S.No.98 of 1998 and being a purchaser of the properties pending the suit being O.S.No.98 of 1998, cannot have better order than that of his vendors. In elaborating his arguments, learned counsel submitted that the vendors of the plaintiff, who have been arrayed as D-4 and D-5 in the appeal filed against the judgment and decree passed in O.S.No.98 of 1998, initially obtained temporary injunction and subsequently the said order has been modified as Status Quo. Learned counsel appearing for the first respondent / plaintiff questions the very maintainability of the appeal, since the appellant has option to file either counter to the injunction application or petition to vacate the interim order before the trial Court. In support of his contention, reliance has been placed on the Division Bench judgment of this Court in Innovative Pharma Surgicals v Pigeon Medical Devices Pvt. Ltd., and others[1], wherein it has been held that the party should explain as to why he prefers appeal instead of choosing to file petition for vacation of ad interim injunction. Per contra, learned counsel appearing for the appellants submits that the appellant has choice of the two i.e. either he can approach the same trial court for vacation of the interim order or he can file an appeal as ordered in Order 43, Rule 1 of the CPC. In support of his submission, reliance has been placed on judgment of the Supreme Court in A.Venkatasubbaiah Naidu v S.Chellappan and others[2], wherein it has been held that the choice is for the party affected by the order either to move the appellate Court or to approach the same court which passed the ex parte order for any relief. Indisputably, the vendors of the plaintiff filed the appeal assailing the judgment and decree passed in O.S.No.98 of 1998 and moved the application seeking for interim relief. Initially, interim suspension of the operation of the above said judgment passed in O.S.No.98 of 1998 on the file of the Additional Senior Civil Judge, Narasaraopet came to be granted on 29.01.2004 and subsequently, the said order came to be modified as ‘Status Quo’ on 30.04.2004. The vendors of the plaintiff have been suffering status quo order since the year 2004. Copy of the order passed in C.M.P.No.1744 of 2004 has been placed along with the material papers. The Interim order passed in the said C.M.P. reads as follows. “It is represented that a decree for perpetual injunction had been suspended a caveat had been lodged. In the facts and circumstances, the interim order already granted is modified and both parties are directed to maintain status quo until further orders.” The plaintiff in the present suit (now numbered as O.S.No.338 of 2009 on the file of the Additional Senior Civil Judge, Narasaraopet) being a purchaser of the property from the appellants in A.S.No.4141 of 2003 cannot have a better order in his favour than that of them. In that view of the matter, the ad interim injunction order granted on 24.09.2009 is modified to that of Status Quo order. The trial Court is directed to dispose of the injunction application, uninfluenced by any of the observations made in this appeal, as expeditiously as possible, preferably within a period of fifteen (15) days from the date of receipt of copy of this order. With the above modification of ad interim injunction, the Civil Miscellaneous Appeal is, accordingly, disposed of. There shall be no order as to costs. __________________________ JUSTICE B.SESHASAYANA REDDY November 17, 2009 BVV Note: Issue C.C. by 20.11.2009 (B/o) Bvv [1] AIR 2004 Andhra Pradesh 310 [2] (2000) 7 Supreme Court Cases 695