Kerala High Court
Rafeeque vs A. Abbas on 4 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
OP(C).No.1779 OF 2020
CMA 31/2020 DATED 30-10-2020 OF DISTRICT COURT, PALAKKAD
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PETITIONER/APPELLANT:
RAFEEQUE,
AGED 51 YEARS
S/O. HYDRU, RESIDING AT CHERUMPALA KALAM,
THONIPPADAM, VAVULLIAPURAM POST, TARUR NO.II
VILLAGE, ALATHUR TALUK, PALAKKAD.
BY ADVS.
SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
SRI.RAFEEK. V.K.
SRI.U.M.HASSAN
SMT.P.PARVATHY
SMT.SURYA P SHAJI
SHRI.MANAS P HAMEED
SMT.AATHIRA SUNNY
SHRI.ELDHO.N.MONCY
RESPONDENTS/RESPONDENT:
A. ABBAS,
S/O. ASSANAR RAWTHER, BISMILLA MANZIL, KAZHANI
CHUNGAM, KAVASSERY NO.I VILLAGE, ALATHUR - 678541.
R1 BY ADV. SRI.P.B.KRISHNAN
R1 BY ADV. SRI.P.B.SUBRAMANYAN
R1 BY ADV. SRI.SABU GEORGE
R1 BY ADV. SMT.B.ANUSREE
R1 BY ADV. SRI.MANU VYASAN PETER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.1779 of 2020
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Dated this the 4th day of February, 2021
JUDGMENT
The petitioner is the defendant in a suit for
prohibitory injunction against trespass. In this
original petition he is assailing the interim order
of injunction granted by the trial court as was
affirmed in appeal.
2. The respondent-plaintiff entered into an
agreement for sale with the original owner of the
property. For enforcement of the said agreement, he
filed a suit OS 672/2012 seeking specific
performance. The suit was decreed on 23.02.2018. In
execution of the decree, sale deed was executed and
the property was delivered over to the respondent-
plaintiff. Alleging attempt on the part of the
O. P. (C) No.1779 of 2020
petitioner-defendant to trespass into the property,
the present suit has been filed.
3. Even according to the petitioner-defendant
he is only a transferee pendente lite from the
original owner of the property, the purchase being
pending the suit for specific performance. Though
the petitioner has filed a suit OS 178/2018
seeking to set aside the said decree and judgment
alleging fraud and collusion between the parties to
the said suit, it is a matter pending trial. As of
now, he can only be considered as a transferee
pendente lite. In execution of the decree for
specific performance the respondent-plaintiff was
put in possession of the property as is revealed
from Exts.A1, A4 and A5 documents. The finding of
the trial court as well as the appellate court with
O. P. (C) No.1779 of 2020
regard to prima facie cases, balance of convenience
and irreparable injury viz. the essential
ingredients for grant of interim injunction are
based on materials and the same is not liable to be
interfered with; there is lack of material to
interfere with the said findings at this stage.
Original Petition fails and is accordingly
dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.1779 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 17.02.2020 IN
IA NO.6 OF 2020 IN OS NO.4 OF 2020 BEFORE
THE COURT OF THE MUNSIFF, ALATHUR.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 30.102.2020 IN
CMA NO.31 OF 2020 IN THE COURT OF THE
DISTRICT JUDGE, PALAKKAD,
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED IN OS
NO.672 OF 2012 DATED 23.02.2018 ON THE FILE
OF THE COURT OF THE SUBORDINATE JUDGE
(ADDL), PALAKKAD.
EXHIBIT P4 TRUE COPY OF THE ADVOCATE COMMISSIONERS
REPORT DATED 23.1.2020 IN OS NO.4 OF 2020
ON THE FILE OF THE MUNSIFF COURT, ALATHUR.
EXHIBIT P5 TRUE COPY OF THE ADVOCATE COMMISSIONERS
REPORT IN OS NO. 178 OF 2018.
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