THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE K.S. APPA RAO C.M.A No.606 OF 2011 JUDGMENT: (Per the Hon’ble Sri Justice N.V. Ramana) The appellants-defendants filed this appeal against the order, dated 25.2.2011 passed in I.A.No.2769 of 2010 in I.A.No.409 of 2006 in O.S.No.41 of 2004 by the learned I Additional Chief Judge, City Civil Court, Secunderabad. The facts that are necessary for disposal of the case are as follows: The respondent herein is the plaintiff. He filed the above suit seeking to declare that he is entitled for 2/18th share and the defendants 1,3,5 to 7 are entitled for 2/18th share and the defendants 2 and 4 are entitled for 1/18th share in the schedule properties, and to appoint an advocate-commissioner to partition the schedule property by metes and bounds and to put the plaintiff and defendants in separate possession of their respective shares. In the above suit, the plaintiff filed I.A.No.409 of 2006 under Order 39 Rules 1 and 2 CPC against the defendants seeking to restrain them from interfering with his possession and enjoyment of the plaint A schedule property, which is the subject matter in E.P.No.166 of 2002 in O.S.No.677 of 1995. The Court below ordered notice. In spite of service of notice, there was no representation on behalf of the defendants and hence, the Court below ordered both the parties to maintain status quo. While so, the present I.A.No.2769 of 2010 was filed by the defendants 1 to 6 seeking to vacate and modify the order of status quo in I.A.No.409 of 2006. It is the case of the petitioners-defendants that they filed O.S.No.677 of 1995 against the plaintiff herein in respect of house bearing No.3-4-57 & 57 (a), Tobacco Bazar, Secunderabad, on the file of the XI Junior Civil Judge, City Civil Court, Secunderabad. The said suit was decreed on 5.8.1998 and the appeal filed against the said judgment was dismissed. As the judgment and decree in O.S.No.677 of 1995 had become final, the defendants filed E.P.No.166 of 2002, in which the plaintiff set up a third party by name Mohd. Mahamood and got filed E.A.No.87 of 2004. But the same was dismissed. The appeal preferred by the claimant against the order in the said E.A., was dismissed by this Court. During the pendency of the appeal against E.A.No.87 of 2004, the plaintiff filed the present suit viz., O.S.No.41 of 2004 and obtained status quo order. Now the grievance of the petitioners-defendants is that the decree passed in O.S.No.677 of 1995 had become final and the schedule property therein cannot be a subject matter for partition and therefore, the status quo order passed in O.S.No.41 of 2004 may be vacated. The Court below dismissed the said application. Being aggrieved by the same, the present CMA is filed. Heard the learned Counsel for the petitioners. On a perusal of the order under appeal, it is clear that the present suit is filed for partition of the schedule properties. Pending the suit, the plaintiff filed I.A.No.409 of 2006 under Order 39 Rules 1 and 2 against the defendants to restrain them from interfering with his possession. Though notice was served on the counsel for the defendants, they were called absent and hence, the Court below after hearing the plaintiff passed order of status quo. It is an order passed after service of notice to the defendants to prevent the purpose of filing the suit from being defeated and also to prevent the future possible injury to the property in question, pending adjudication of the main suit. The order of status quo was passed on 22.2.2006. After a lapse of four years, the defendants filed the above I.A. under Order 39 Rule 4 of C.P.C., seeking to vacate and modify the order of status quo, on the ground that the property shown in the present suit was the subject of matter of the earlier suit. The approach of the defendants at this length of time is not bonafide. Further, issue raised by the appellants is a mixed question of law and fact, which requires to be adjudicated after a fullfledged trial. In this view of the matter and in view of the nature of the suit, the order of status quo needs no interference and the appeal is liable to be dismissed. At this stage, the learned Counsel for the appellants sought for a direction to the Court below to dispose of the matter expeditiously. Accordingly, the CMA is dismissed. Since the suit is of the year 2004, the Court below is directed to dispose of the suit expeditiously. No order as to costs. ___________________ Justice N.V. Ramana _____________________ Justice K.S. Appa Rao Date: 29.6.2011 Nn. THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE K.S. APPA RAO C.M.A No.606 OF 2011 (Judgment delivered by the Hon’ble Sri Justice N.V. Ramana) 29.6.2011