JUDGMENT
1. M.F.A. No. 49/1994 appeared on board before this Court for orders on 9-2-1995. Respondent-3 to the appeal had filed an I. A. for early hearing. It was his contention that the interim order passed by this Court was prejudicial to him. It was further contended that the other respondents had already applied to the High Court to vacate the interim order and that this Court rejected the application. The respondents filed I.A. III praying that this Court should reconsider the matter on merits and pass appropriate orders. It is relevant for me to
point out that the dispute relates to certain properties and that the plaintiffs before the trial Court have contended that their shares of the joint family properties should be carved out and allotted to them. They allege that some of the respondents have been acting prejudicially to the interest of the joint family and it was further averred in the plaint that there are admissions in the earlier litigations to the effect that the disputed properties constitute joint family property. The trial Court had originally passed an order restraining the defendants from alienating the properties pending disposal of the suit, but subsequently, that order came to be vacated and it is against the order of vacation that the present appeal has been preferred. This background of the case is of some significance because the appeal itself is directed against the interim order. The appeal was admitted and this Court on more than one occasion had taken the view that the original interim order was liable to be restored which was why the interim relief granted by this Court had not been vacated. Undoubtedly, the respondents were entitled to ask the Court to reconsider the matter.
2. I have set out this background of the case for a special reason because when the matter was listed on 9-2-1995 under these circumstances, this Court inevitably was required to ascertain from the applicant who had filed I.A. III and from the appellants as to what they desire to say about the merits of the matter. The hearing of I.A. III was no different from the hearing of the appeal in these circumstances. The R-3 was represented by an advocate and the appellants were also represented and after hearing the learned advocates on both sides, this Court confirmed the earlier interim order and directed the trial Court to proceed with the hearing of the suit. In paragraph-3 of that order, this Court had clarified that the passing of the interim order is only for the limited purpose of securing the interests of the plaintiffs and it will not be implied as being a finding on the merits of the matter nor shall it be construed that the order is passed because the Court has taken any prima facie view with regard to the merits. As far as the adjudication of the main dispute was
concerned, therefore, the case was absolutely wide open before the trial Court.
3. After the matter was disposed of, learned advocates representing original respondents-2, 4, 5 and 6 as also respondent-1 pointed out to this Court that they were not present when the order dated 9-2-1995 was passed. They submitted that prejudice is caused to them because of the fact that they were not heard and furthermore, that they desire to make certain submissions which this Court should take note of. It is.true that the matter was listed and taken up in normal course and that, therefore, this Court, to my mind, was not obliged to reopen the case thereafter. Since however, I considered that it was only fair and just that the learned advocates should be heard, I directed that the matter should be listed for being spoken to. I have once again heard all the learned advocates representing all the parties today. The basic grievance that has been made and which is related to the ground on which I have reheard the matter is that if some of the learned Counsel were not present when the early hearing of application was made, that they represents several of the defendants and that in their submission, the interim order ought not to have been confirmed. It is true that some of the respondents are represented by other counsel and that they were not present on 9-2-1995 when the earlier order was passed. For that purpose, I have virtually reheard the matter. Mr. Hegde has submitted that the original application for interim relief itself is unjustified because there was only bald averments in the plaint to the effect that the disputed properties particularly Sy. Nos. 124/1 and 124/2 arc classified as joint family properties. Mr. Hegde submits that as far as his clients are concerned, they have made out a case that these properties are self-acquired properties and he further submits that in one of the earlier proceedings, there is an admission on the part of plaintiff-4 that a partition has taken place within the family. Under these circumstances, it is his case that the learned trial Judge was fully justified in having refused to pass any prohibitory orders in respect of these properties on the footing that they constitute joint family properties.
The submissions of Mr. Hegde have been adopted by the other learned Advocates who represents respondents-1 and 3. In essence, Mr. Hegde has sought to rely on an earlier decision of this Court reported in ILR 1992 Kant 2905 in the case of R. Dilip Kumar v. S. Ramu, wherein, while dealing with a similar family dispute, this Court observed that before a temporary injunction is granted, a clear prima facie case should be made out. There is absolutely no dispute with regard to this proposition. Mr. Hegde has submitted that the trial Court has taken note of the contentions raised by both the parties that the trial Court has looked at the relevant revenue extracts and that the trial Court has come to the conclusion that no prima facie case has been made out. He submits that this is a discretionary order and that if he can demonstrate that the discretion is validly and correctly exercised, that again there is no ground for interference with that order. I do not dispute the correctness of this proposition either because it is well settled law particularly while dealing with appeals from interlocutory orders, that merely because some other view is possible, the appeal Court should not interfere with a discretionary order where the discretion is correctly, validly and judicially exercised.
4. Disputes relating to agricultural lands and disputes relating to joint family properties are quite common in the civil litigation of this country. Courts have, therefore, been required to evolve certain broad principles which have now become almost well defined while dealing with disputes of this type which principally take into account the fact that the litigation takes some time and that if certain changes take place in the character of the property under dispute during the interim period, that it would only give rise to further litigation and some times render the relief itself infructuous. For this purpose, more as a measure of safety, caution and legal expediency, the Courts have culled out certain well defined principles which ordinarily ought not to be departed from. One of this principle is that where there is a dispute in relation to immovable property which happens to be vacant that if the property were to be
encumbered, alienated, built upon or if third party rights are permitted to be created during the interim period that the situation might become and in fact does become totally irreversible by the time the Court passes final orders. It is a well defined principle of law that a Court is required to be equally fair to the defendants as also to the parties who have approached the Court and, therefore, necessary safety precautions in relation to the plaintiffs’ interest are also of some consequence. This is in fact the essence of the principle behind the grant of interim orders.
5. Mr. Hegde has submitted that the law with regard to lis pendens more than fully takes the (sic) of any interim variations and that, therefore, there is no justification merely because some statements are made in the pleadings that a Court should straightway pass prohibitory orders in respect of the defendants’ property. The real issue is as to whether there is sufficient justification for the passing of such orders on the facts of a particular case. Learned Counsel is right that such orders cannot be indiscriminately passed and that is precisely why, jf an order is unjustified an appeal Court will review the decision. Coming to the facts of the present case, the plaint sets out a genealogy. There are definite averments in the plaint that the property is a joint family property and there are averments that this position has been admitted in the earlier litigation. The revenue records have been annexed which indicate that the property stands in the name of one of the sons of Ramaiah who is a person other than the present defendants. Under these circumstances, the trial Court will have to examine as to whether the plaintiffs are justified in their contention that a joint family status exists, whether the properties in question formed for the corpus of joint family property and lastly, whether the plaintiffs are justified in their demand that they should be given shares in that property. On the basis of the record as it exists, there is prima facie material to indicate that the plaintiffs have made out a case for the grant of interim relief but an interim order is always subject to final adjudication on the merits and is not reflected on the final decision of a case. I have set out earlier the justification in cases of this type for the Court to pass interim orders.
6. To my mind, having heard all the learned Advocates who are appearing in the matter, I see no ground for variation of the order passed on 9-2-1995. The order dated 9-2-1995 is accordingly confirmed.
7. Order accordingly.