Shihabudheen vs The State Of Kerala
2021 Latest Caselaw 11602 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                        WP(C).No.827 OF 2021(C)


PETITIONER/S:

                SHIHABUDHEEN,
                AGED 56 YEARS,
                S/O. NUJUMUDHEEN THANGAL, MULLASERIL VADAKKETHIL,
                SHEFINA MANSIL (NASIRA MANSIL), PATHIYOOR VILLAGE,
                ERUVA MURI, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-
                690572.

                BY ADVS.
                DR.V.N.SANKARJEE
                SRI.VINCENT JOSEPH

RESPONDENT/S:

      1         THE STATE OF KERALA,
                REPRESENTED BY THE SECRETARY, HOME AFFAIRS,
                GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT,
                PIN-695 001.

      2         THE DIRECTOR GENERAL OF POLICE,
                STATE POLICE HEADQUARTERS, VELLAYAMBALAM CITY,
                THIRUVANANTHAPURAM DISTRICT, PIN-695 010.

      3         THE DISTRICT POLICE OF CHIEF,
                DISTRICT POLICE OFFICE, ALAPPUZHA, ALAPPUZHA
                DISTRICT, PIN-688 012.

      4         THE INSPECTOR OF POLICE (CIRCLE INSPECTOR),
                KAYAMKULAM POLICE STATION, KAYAMKULAM , ALAPPUZHA
                DISTRICT, PIN-690 502.

      5         THE SUB INSPECTOR OF POLICE,
                KAYAMKULAM POLICE STATION, KAYAMKULAM , ALAPPUZHA
                DISTRICT, PIN-690 502.

      6         ABDUL SALAM,
                S/O. ABDUL KHADER KUNJ, AGED 41 , POKKATTU HOUSE,
                PATHIYOOR VILLAGE, ERUVA MURI, KAYAMKULAM, ALAPPUZHA
                DISTRICT, PIN-690 572.

                R1TO R5 BY GOVERNMENT PLEADER SRI.P.P.THAJUDEEN
 WP(C).Nos.827 & 3282 OF 2021   2




             R6 BY ADVS. SRI.P.A.MOHAMMED SHAH
              SRI.C.R.SYAMKUMAR
              SRI.K.ARJUN VENUGOPAL
              SHRI.ASWIN KUMAR M J
              SMT.HELEN P.A.
              SRI.SHAHIR SHOWKATH ALI
              SHRI. SAIFAL SAINUDHEEN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, ALONG WITH WP(C).3282/2021(I), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).Nos.827 & 3282 OF 2021    3




              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

    FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                       WP(C).No.3282 OF 2021(I)


PETITIONER/S:

      1         ABDU SALAM,
                AGED 42 YEARS,
                S/O ABDUL KHADAR KUNJU, POLLATTU VEEDU,
                ERUVA, PATHIYUR, ALAPPUZHA DISTRICT-690502.

      2         MUHAMMED SALAHUDEEN,
                S/O MUHAMMED KUTTY,
                SHIRAZ, KAYAMKULAM P O,
                ALAPPUZHA-690502.

      3         SAIDUKUTTY @ MANI,
                S/O IBRAHIMKUTTY,
                SUHAIMA MANZIL, ERUVA P O,
                ALAPPUZHA-690502.

                BY ADVS.
                SRI.P.A.MOHAMMED SHAH
                SRI.C.R.SYAMKUMAR
                SRI.K.ARJUN VENUGOPAL
                SHRI.MUHAMMED JANAISE V.
                SHRI.ASWIN KUMAR M J
                SHRI.MOHAMED MUSTHAFA A.K.
                SMT.HELEN P.A.
                SHRI.ARUN ROY
                SRI.SHAHIR SHOWKATH ALI

RESPONDENT/S:

      1         DEPUTY SUPERINTENDENT OF POLICE,
                KAYAMKULAM CIRCLE,
                KAYAMKULAM P O,
                ALAPPUZHA DISTRICT-690502.

      2         INSPECTOR OF POLICE AND STATION HOUSE OFFICER,
                KAYAMKULAM POLICE STATION,
 WP(C).Nos.827 & 3282 OF 2021   4



             KAYAMKULAM P O,
             ALAPPUZHA DISTRICT-690502.

      3      SHIHABUDEEN,
             AGED 56 YEARS,
             S/O NUJUMUDEEN THANGAL, MULLASSERY VADAKKETHIL,
             NAZEERA MANZIL (SHAFEENA MANZIL),
             CHAKKALAMUKKU WEST,
             ERUVA, PATHIYUR, KAYAMKULAM, ALAPPUZHA-690572.

      4      SAINULABDEEN,
             VAZHAPPALLY HOSUE,
             C DIT COMPLEX, IKEA JUNCTION, KAYAMKULAM,
             ALAPPUZHA-690502.

             R1& R2 BY GOVERNMENT PLEADER SRI.P.P.THAJUDEEN
             R3 BY ADVS. DR.V.N.SANKARJEE
                         SRI.V.N.MADHUSUDANAN
                         SMT.R.UDAYA JYOTHI
                         SRI.M.M.VINOD
                         SMT.M.SUSEELA
                         SMT. KEERTHI B. CHANDRAN
                         SHRI.VIJAYAN PILLAI P.K.
                         SRI.C.PURUSHOTHAMAN NAIR




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, ALONG WITH WP(C).827/2021(C), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).Nos.827 & 3282 OF 2021            5




                                  JUDGMENT

The dispute concerning the possession of a shop room bearing K.M.C.

No.XIV/466 of Kayamkulam Municipality has led to the filing of these writ

petitions. In W.P.(C) No.3282 of 2021, the petitioners claiming to be the tenants

have approached this Court seeking police protection from the 3rd respondent,

who is the former tenant. In W.P.(C) No.827 of 2021, the former tenant has

approached this Court complaining of harassment by the police. Since the issues

raised are inter connected, both these petitions are being taken up and disposed of

by a common judgment. The reference to parties and Exhibits shall be as

described in W.P(C) No.3282 of 2021.

2. 'Madrassuthul Khidumathul Islamil Hassaniya Trust' is the owner of a

shop room bearing K.M.C.No.XIV/466 of Kayamkulam Municipality. The 3rd

respondent was conducting the agency business of " Kerala Roadways Pvt. Ltd." in

the above building. It is contended by the petitioners that on the strength of

Ext.P1 agreement, the possession of the shop room was handed over by the 3rd

respondent to the 1st petitioner for a total consideration of Rs.20 lakhs and an

advance of Rs.2 lakhs was paid. Reference is made to Exts.P2 and P3 to bring

home the fact that the agency business was also transferred to the name of the

petitioner. Ext.P4 receipt issued by the landlord would reveal that rent is being

directly accepted from the petitioner. Ext.P7 consent has also been issued by the

landlord for production before the LSGI for obtaining licence to conduct agency

business in the name and style as "Pokkattu Agencies". Ext.P8 is the licence issued

in favour of the 1st petitioner by the Kayamkulam Municipality. According to the

petitioner, suppressing all these aspects and by falsely contending that the 3rd

respondent is in possession of the shop room, O.S.No.309 of 2020 was filed before

the Munsiff Court, Kayamkulam, seeking to interdict the petitioners from interfering

with the possession and enjoyment of the property by the 3rd respondent. It is

stated that the 1st petitioner has instituted O.S.No.353 of 2020 arraying the 3rd

respondent as defendant and seeking permanent prohibitory injunction and by

Ext.P11 order, the 3rd respondent has been interdicted from trespassing into the

shop rooms or from committing any act of waste. It is contended that ignoring the

order passed by the Civil Court, the respondents 3 and 4 have attempted to attack

the petitioners and their employees. Being aggrieved, Ext.P12 and P14 complaints

were submitted before the 1st and 2nd respondents. However, no action was

taken.

3. On 08.01.2021, the respondents 3 and 4 entered the premises and

attacked the petitioners. Though the petitioners rushed to the police and lodged

Ext.P16 complaint, the police took a passive stand. It is in the afore circumstances

that the petitioners have approached this Court seeking to direct the respondents

1 and 2 to grant protection to the life and property of the petitioners and their

workers to do the business peacefully in the shop room numbered as XIV/466 of

Kayamkulam Municipality.

4. The 3rd respondent has filed W.P.(C) No.827 of 2021 contending that

he is actually possessing the shop room and that he is being forced to vacate the

shop room by the Police at the instance of the writ petitioners in W.P.(C) No.3282

of 2021. He would contend that it was during the pendency of the suit instituted

by him as O.S.No.309 of 2020 that the 1st petitioner in W.P.(C)No.3282 of 2021

had trespassed into the plaint schedule building after expelling the petitioner in

W.P.(C) No.827 of 2021 and started occupying the same. He contends that Police

are acting hand in glove with the petitioners in W.P.(C) No.3282 of 2021. His prayer

in the writ petition filed by him is to direct the 4th respondent or any other official

respondents to refrain from harassing the petitioner or in compelling him to vacate

the plaint schedule building in Exhibit-P1 suit pending before the Munsiff's Court,

Kayamkulam.

5. I have heard Sri.P.A.Mohammed Shah, the learned counsel appearing

for the petitioners in W.P.(C) No.3282 of 2021, Dr.V.N.Sankarjee, the learned

counsel appearing for the petitioner in W.P.(C) No.827 of 2021 and the learned

Government Pleader.

6. Though both the parties have instituted suits, claiming that they are

in possession of the shop room, I find from the records that the learned Munsiff,

Kayamkulam had occasion to consider the application for temporary injunction in

the suit filed by the petitioners in W.P.(C) No.3282 of 2021. After considering all

relevant aspects, the learned Munsiff has concluded that Abdul Salam is in

possession of the shop room. The 3rd respondent has been prohibited from

trespassing into the shop room and from committing any act of waste. While

granting a temporary injunction, the learned Munsiff has taken note of a report of

the Commissioner Advocate as well as the receipts and consent form issued by the

landlord in his favour.

7. The 3rd respondent contend that the order passed by the learned

Munsiff has been challenged before the Appellate Court. As long as the said order

is not vacated or modified, the parties shall be bound by the directions. Of course,

if the 3rd respondent violates the order, the 1st petitioner can very well approach

the learned Munsiff and seek relief for violation of the order. At the same time, if

the 3rd respondent takes law into his own hands and commits acts which may

result in breach of peace, the police shall be bound to interfere. The 3rd

respondent will have to obey the directions of the learned Munsiff and under no

circumstances shall he make any threats or commit any act which may lead to

breach of peace. If threats are made or if any attempt is made to cause physical

harm or criminal trespass, the petitioners in W.P.(C).No.3282 of 2021 shall

approach the Police and lodge a complaint. The 2nd respondent shall enquire into

the allegations and if the same is found genuine, shall initiate appropriate action.

These writ petitions are disposed of.

SD/-

RAJA VIJAYARAGHAVAN V

JUDGE DSV

APPENDIX OF WP(C) 827/2021 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 5.11.2020 IN O.S.NO. 309/2020 OF THE MUNSIFF'S COURT, KAYAMKULAM.

EXHIBIT P2 TRUE COPY OF THE RENT AGREEMENT DATED 7.5.2011 BETWEEN THE PETITIONER AND HAJI MUHAMMED ABDUL SATHAR SETT IN RESPECT OF THE PLAINT SCHEDULE BUILDING.

EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT DATED 2.12.2020 IN I.A. NO. 2/2020 IN O.S. NO.

309/2020 ON THE FILE OF THE MUNSIFF'S COURT, KAYAMKULAM.

EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 1.12.2020 LODGED BEFORE THE 4TH RESPONDENT BY THE PETITIONER.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R6(A) THE TRUE COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER IN FAVOUR OF THE RESPONDENT.

EXHIBIT R6(B) THE TRUE COPY OF THE CONSENT ISSUED BY THE PETITIONER DATED 09.07.2019.

EXHIBIT R6(C) THE TRUE COPY OF THE AGREEMENT DATED 09.07.2019.

EXHIBIT R6(D) THE TRUE COPY OF THE RECEIPT ISSUED BY THE LAND LORD IN THE NAME OF RESPONDENT DATED 31.10.2020.

EXHIBIT R6(E) THE TRUE COPY OF THE RECEIPT ISSUED BY THE LAND LORD IN THE NAME OF THE RESPONDENT DATED 30.11.2020.

EXHIBIT R6(F) THE TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER DATED 02.10.2019.

EXHIBIT R6(G) THE TRUE COPY OF THE CONSENT GIVEN BY THE

LANDLORD DATED 01.02.2020.

EXHIBIT R6(H) THE TRUE COPY OF THE LICENSE ISSUEED BY THE KAYAMKULAM MUNICIPALITY DATED 28.12.2020.

EXHIBIT R6(I) THE TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT KAYAMKULAM IN I.A.NO.1 OF 2020 IN O.S.NO.353/2020.

EXHIBIT R6(J) THE TRUE COPY OF THE COMPLAINT FILED BY THE 6TH RESPONDENT DATED 09.12.2020.

EXHIBIT R6(K) THE TRUE COPY OF THE RECEIPT ISSUED BY THE DEPUTY SUPERIINTENDENT OF POLICE, KAYAMKULAM DATED 10.12.2020.

EXHIBIT R6(L) THE TRUE COPY OF THE COMPLAINT FILED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED 07.01.2021.

EXHIBIT R6(M) THE TRUE COPY OF THE WOUND CERTIFICATE ISSUED FROM THE TALUK HOSPITAL KAYAMKULAM.

EXHIBIT R6(N) THE TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 4TH RESPONDENT DATED 08.01.2021.

EXHIBIT R6(O) THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 03.02.2021.

//TRUE COPY// P.A.TO JUDGE

APPENDIX OF WP(C) 3282/2021 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE AGREEMENT BETWEEN THE 1ST PETITIONER AND THE 3RD RESPONDENT.

EXHIBIT P2 THE TRUE COPY OF THE CONSENT ISSUED BY THE 3RD RESPONDENT DATED 09.07.2019.

EXHIBIT P3 THE TRUE COPY OF THE AGREEMENT DATED 09/07/2019

EXHIBIT P4 THE TRUE COPY OF THE RECEIPT ISSUED BY THE LAND LORD IN THE NAME OF THE 1ST PETITIONER DATED 31.10.2020.

EXHIBIT P5 THE TRUE COPY OF THE RECEIPT ISSUED BY THE LAND LORD IN THE NAME OF THE 1ST PETITIONER DATED 30.11.2020.

EXHIBIT P6 THE TRUE COPY OF THE LETTER GIVEN BY THE 3RD RESPONDENT DATED 02.10.2019.

EXHIBIT P7 THE TRUE COPY OF THE CONSENT ISSUED BY THE LAND LORD IN THE NAME OF THE 1ST PETITIONER DATED 01.12.2020.

EXHIBIT P8 THE TRUE COPY OF THE LICENSE ISSUED BY THE KAYAMKULAM MUNICIPALITY DATED 28/12/2020.

EXHIBIT P9 THE TRUE COPY OF THE PLAINT IN OS NO.

309/2020 DATED 05.11.2020.

EXHIBIT P10 THE TRUE COPY OF THE AGREEMENT WHICH SHOWING THE DATE OF EXECUTION AS 07/05/2011.

EXHIBIT P11 THE TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT KAYAMKULAM IN IA NO. 1/2020 IN OS NO.353/2020.

EXHIBIT P12 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 9/12/2020.

EXHIBIT P13 THE TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 10.12.2020.

EXHIBIT P14 THE TRUE COPY OF THE COMPLAINT FILED BY THE

1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 07.01.2021.

EXHIBIT P15 THE TRUE COPY OF THE WOUND CERTIFICATE ISSUED FROM THE TALUK HOSPITAL KAYAMKULAM.

EXHIBIT P16 THE TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND RESPONDENT DATED 08.01.2021.

EXHIBIT P17 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 03.02.2021.

EXHIBIT P18 THE TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 03.02.2021.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R3(a) TRUE COPY OF THE MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL DATED 05.02.2021 IN C.M.A.NO.4/2021 BEFORE THE ADDITIONAL DISTRICT COURT, MAVELIKARA.

EXHIBIT R3(b) TRUE COPY OF THE STAY PETITION DATED 5.2.2021 I.A.NO.1/2021 IN C.M.A.NO.4/2021 BEFORE THE ADDITIONAL DISTRICT COURT, MAVELIKARA.

//TRUE COPY// P.A.TO JUDGE