Order 39 Rules 1 & 2; Order 43 Rule 1 — Ad-interim injunction pending first appeal — Duty of appellate court — Where the lower appellate court declined injunction solely because the trial court record was not yet received, without recording findings on prima facie case, balance of convenience, and irreparable injury, Held, such refusal is unsustainable. An application under O.39 Rr.1&2 must be examined on merits even on available materials; the court can call for records, receive copies, or take affidavits, but cannot reject on technicalities. Order set aside; matter remanded for fresh consideration within a time-frame.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

(Special Original Jurisdiction)

THURSDAY, THE SEVENTEENTH DAY OF JULY, 2025

PRESENT
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN

CIVIL MISCELLANEOUS APPEAL No. 318 of 2025

Between
Kammela Sambasiva Rao & Anr. … Appellants / Plaintiffs

And
Velivela Subba Rao … Respondent / Defendant

Counsel: For Appellants — P. Durga Prasad · For Respondent — Venkata Subbaiah Pogula

HEADNOTES

CPC, 1908 — Order 39 Rules 1 & 2; Order 43 Rule 1 — Ad-interim injunction pending first appeal — Duty of appellate court —
Where the lower appellate court declined injunction solely because the trial court record was not yet received, without recording findings on prima facie case, balance of convenience, and irreparable injury, Held, such refusal is unsustainable. An application under O.39 Rr.1&2 must be examined on merits even on available materials; the court can call for records, receive copies, or take affidavits, but cannot reject on technicalities. Order set aside; matter remanded for fresh consideration within a time-frame.

Practice & Procedure — Interim relief in appeal —
Appellate courts must avoid mechanical rejection; they are required to render reasoned findings on the three injunction tests, even where records are awaited, adopting pragmatic case-management.

SUMMARY OF FACTS

1. Plaintiffs filed O.S. No. 707 of 2021 seeking permanent injunction to protect a 6-ft access way for ingress/egress to their residence.

2. The suit was dismissed on 19.11.2024. Plaintiffs preferred A.S. No. 5 of 2025 and, therein, I.A. No. 16 of 2025 under O.39 Rr.1&2 for ad-interim injunction against interference with the pathway.

3. By order 15.04.2025, the XI Addl. District Judge, Tenali, rejected the I.A., stating that trial court record had not been received and, on the rival affidavits alone, merits could not be decided.

4. Hence, the present CMA under O.43 R.1.

COURT’S REASONING

• The impugned order shows the appellate court did not address the three settled tests for interim injunction.

• Non-receipt of records is not a legal ground to refuse interim relief; courts must assess prima facie right, balance of convenience, and irreparable injury on the material available (pleadings, affidavits, documents annexed), and may call for records or direct filing of copies where necessary.

• The approach adopted reflects a procedural infirmity warranting interference.

OPERATIVE CONCLUSION

• Impugned order dated 15.04.2025 in I.A. No. 16 of 2025 in A.S. No. 5 of 2025 — Set aside.

• Remand: I.A. No. 16 of 2025 to be considered afresh on merits (prima facie case, balance of convenience, irreparable injury) after hearing both sides; to be disposed within three (03) months from receipt of this order.

• CMA disposed of; no order as to costs.

• All pending miscellaneous petitions — Closed.

— CHALLA GUNARANJAN, J.
Date: 17.07.2025