THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A. No.129 of 2010 JUDGMENT: The appellant filed O.S.No.379 of 2002 in the Court of the Principal Junior Civil Judge, Machilipatnam against the respondent for the relief of declaration that he is in possession of the suit schedule premises as a tenant and that he cannot be evicted from same, otherwise than through the procedure prescribed by law. The suit was initially decreed ex parte and on an application filed by the respondent, the same was set aside. Thereafter, the trial Court dismissed the suit through its judgment, dated 23.07.2003. The appellant filed A.S.No.157 of 2009 in the Court of the I Additional District & Sessions Judge, Krishna at Machilipatnam against the judgment and decree of the trial Court. He has also filed I.A.No.590 of 2009 under Order 39 Rules 1 and 2 C.P.C. with a prayer to grant temporary injunction restraining the respondent from interfering with his peaceful possession. The application was opposed by the respondent. The lower appellate Court dismissed the I.A., through its order, dated 04.12.2009. Hence, this C.M.A. Sri V.V.L.N.Sarma, learned counsel for the appellant, submits that his client is in possession of the suit schedule property and that was admitted by the respondent itself in the counter-affidavit filed by it. He contends that even though there was no dispute as to his possession, the lower appellate Court dismissed the I.A. solely on the basis of the findings recorded by the trial Court. He further contends that the balance of convenience is in favour of the appellant being continued in possession. Sri V.S.R.Anjaneyulu, learned counsel for the respondent, on the other hand, submits that the trial Court, on appreciation of oral and documentary evidence, recorded a clear finding to the effect that the appellant is not in possession of the property and in that view of the matter, he is not entitled for temporary injunction. He contends that there were huge arrears of rent and the appellant is a chronic defaulter. The suit filed by the appellant is one for declaration and injunction. He did not claim any ownership rights over the property and on the other hand, he pleaded that he is the tenant of the respondent. It is true that the record does not disclose that there was any order of temporary injunction in favour of the appellant, during the pendency of the suit. In the affidavit filed in support of the I.A. before the lower appellate Court, the appellant stated that after dismissal of the suit, the respondent is contemplating to evict him forcibly. In case the appellant is not in possession of the suit schedule property, the lower appellate Court was certainly justified in denying the temporary injunction. It is important to note that in its counter-affidavit, the respondent categorically stated that the appellant is in possession of the property. The first sentence in para 4 of the counter- affidavit reads as under: “This respondent humbly submits that the petitioner is a chronic defaulter and fell arrears and he is in illegal possession of the schedule property” This admission as to possession of the property should have convinced the lower appellate Court to grant temporary injunction. The question as to whether the possession of the appellant is legal or illegal is a matter to be decided in A.S.No.157 of 2009. In its order, the lower appellate Court recorded the contention of the respondent. Para 9 of the order reads as under: “Moreover, it is the case of the society that it never intended to dispossess the petitioner from the petition schedule property by force.” This is exactly what the appellant prayed for. Behind the submission made on behalf of the respondent, there was a clear admission that the appellant is in possession of the property and that it never intended to dispossess him by using force. Under these circumstances, the appellant was entitled for temporary injunction pending disposal of A.S.No.157 of 2009 Hence, the appeal is allowed and the order under appeal is set aside. Consequently, I.A.No.590 of 2009 is allowed and there shall be a temporary injunction in favour of the appellant, as prayed for, till the disposal of the appeal, on condition that he shall pay the rent at the rate of Rs.1,000/- per month on or before 10th of every month, commencing from July, 2010. The respondent shall be entitled to withdraw the arrears of rent deposited by the appellant in pursuance of the interim orders passed by this Court on 30.04.2010. The lower appellate Court shall endeavour to dispose of the appeal, within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:30.06.2010 kdl