Kerala High Court
Ajomon vs Missy M.J on 4 February, 2021
1
OP (FC).No.81 OF 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
OP (FC).No.81 OF 2021
PETITIONER/S:
AJOMON
AGED 42 YEARS
S/O MATHEW,
VETTITHANAM HOUSE,
CHANGANACHERY TALUK, CHETHIPUZHA VILLAGE, VEROOR
KARA, KURISUMMMODU P O, PIN-686104, NOW EMPLOYED
AND RESIDING AT STREET NO. 3, BLOCK NO. 4, BUILDING
NO. 25, FLOOR NO.3,FLAT NO. 15, JLEEP AL SHUYOUKH,
KUWAIT.
BY ADV. SRI.M.NARENDRA KUMAR
RESPONDENT/S:
1 MISSY M.J
AGED 42 YEARS
D/O JOSE M A, MALAYIL HOUSE, KURAVILANGADU VILLAGE,
KOZHA KARA, KOZHA P O, PIN-686640.
NOW EMPLOYED AND RESIDING AT STREET NO.3, BLOCK NO.
4, BUILDING NO. 25, FLOOR NO.3, FLAT NO. 15, JLEEP
AL SHUYOUKH, KUWAIT.
2 SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR, CHANGANACHERRY, PIN-
686101.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC).No.81 OF 2021
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
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OP(FC) No.81 of 2021
======================
Dated this the 4th day of February, 2021.
JUDGMENT
C.S.DIAS, J.
This original petition is filed, under Article 227 of the
Constitution of India, to direct the Family Court, Pala to
consider and dispose of Ext P7 (IA 7/2021), in accordance
with law, or to modify the order in I.A No.1/2020 in OP
58/2020, so as to enable the petitioner to execute sale deed
in respect of 4.75 Ares in Block No.3 Survey No.230/9 of
Chethipuzha Village, Changanacherry Taluk, Kottayam
District.
2. The case of the petitioner, in brief, in the original
petition is that the first respondent is his wife. They were
married on 8.9.2011. The second respondent is the Sub
Registrar, Changanacherry. The first respondent has filed
OP 58/2020(Ext P1) before the Family Court, seeking a
OP (FC).No.81 OF 2021
decree to declare that she is the owner with title and
possession in respect of the properties scheduled in the
original petition. The properties scheduled in Ext P1 were
purchased by her utilizing her funds. Along with the original
petition, the first respondent filed IA 1/2020 (Ext P2)
seeking an ad-interim injunction. The Family Court allowed
Ext P2 by passing an order of temporary injunction
restraining the petitioner from transferring or alienating the
petition schedule properties or creating any encumbrance
over it till the disposal of the original petition. The petitioner
has entered into Ext P4 agreement to sell the petition
schedule properties for a total consideration of
Rs.1,20,00,000/-. The petitioner and the first respondent
have now filed an application for modification of the interim
injunction on condition that the sale consideration of
Rs.12,00,000/- would be transferred to the account of the
first respondent on encashment of the cheque (Ext P5). The
request of the petitioner has been accepted by the first
respondent pursuant to which she has filed Ext P6 and P6(a)
affidavits. In Exts P6 and P6(a) affidavits the first
OP (FC).No.81 OF 2021
respondent has categorically stated that the dispute with
respect to petition III schedule property has been settled
between him and the petitioner. However, the dispute with
regard to petition I and II schedule properties is not settled.
Therefore, the first respondent has no objection in the
interim injunction dated 28.1.2020 in IA 1/2020 being
vacated in respect of the petition III schedule property.
Even though the petitioner has filed IA 7/2021 before the
Family Court, the matter is not being listed as the Presiding
Officer of the Court passed away. Hence, the petitioner is
unable to obtain orders on Ext P7 application. The
petitioner thus prays that the order in IA 2/2020 may be
modified by vacating the ad interim injunction in respect of
petition III schedule property.
3. Heard Sri.M.Narendra Kumar, the learned counsel
appearing for the petitioner, Sri.K.T Jacob, the learned
counsel appearing for the first respondent and the learned
Government Pleader appearing for the second respondent.
4. The learned counsel appearing for the petitioner
and the learned counsel appearing for the first respondent
OP (FC).No.81 OF 2021
in unison submitted that the dispute in respect of petition III
schedule property has been settled between the petitioner
and the first respondent pursuant to which the first
respondent has filed Ext P6 and P6(a) affidavits before the
Family Court. However, in view of the fact that there is no
sitting before the Court, Ext P7 application is pending
consideration. As the time is of the essence of the contract
in respect of the sale transaction, it is necessary that the
ad interim injunction order in IA 1/2020 be modified, so as
to enable the petitioner can execute the sale deed in respect
of petition III schedule property and sale consideration can
be handed over to the first respondent.
5. Taking into consideration the pleadings and
materials on record, the fact that there is no sitting in the
Family Court, after hearing the respective counsel for the
parties and the harmonious settlement arrived at between
the parties in respect of petition III schedule property, in
exercise of the supervisory jurisdiction of this Court as
enshrined under Article 227 of the Constitution of India, we
allow the original petition by modifying the order in IA
OP (FC).No.81 OF 2021
1/2020 in OP 58/2020 and permit the petitioner to execute
the sale deed in respect of petition III schedule property as
agreed by the first respondent in Exts P6 and P6 (a)
affidavits.
The original petition is ordered accordingly.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
SKS/4.2.2021 JUDGE
OP (FC).No.81 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OP NO. 58/2020 DATED
27/1/2020 BEFORE THE FAMILY COURT, PALA.
EXHIBIT P2 TRUE COPY OF IA 1/2020 IN OP NO. 58/2020
BEFORE THE FAMILY COURT, PALA.
EXHIBIT P3 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
ISSUED BY THE DEPARTMENT OF REGISTRATION
DATED 13.11.2020.
EXHIBIT P4 TRUE COPY OF THE AGREEMENT DATED 18/1/2021
EXECUTED BY PETITIONER AND 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE CHEQUE DATED 18/01/2021.
EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT DATED 24.1.2021.
EXHIBIT P6(A) TRUE COPY OF THE AFFIDAVIT DATED 24.1.2021.
EXHIBIT P7 TRUE COPY OF IA NO. 7 OF 2021 IN OP 58/2020
BEFORE THE FAMILY COURT, PALA.
