Kerala High Court
Dominic vs Biju on 16 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
OP(C).No.119 OF 2021
IN I.A.NO.5041/2019 IN O.S.NO.651/2019 OF ADDITIONAL MUNSIFF
COURT, KOLLAM
PETITIONER:
DOMINIC,
AGED 78 YEARS,
S/O.CARLOSE, RESIDING AT MARIYALAYAM, CHIRAYADI,
MOOLAVARAM, PERUMPUZHA, KOLLAM TALUK, FROM
CHERUPUZHPAM VEEDU, CHERUMOODU CHERRY, VELLIMON,
PERINADU VILLAGE.
BY ADVS.SRI.G.P.SHINOD
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
RESPONDENT:
BIJU,
CHERUPUZHAM VEEDU, CHERUMOOD CHERRY,
VELLIMON, KOLLAM - 691 511.
BY ADV. SRI.BIJU .C. ABRAHAM
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.119/2021
-:2:-
Dated this the 16th day of February,2021
J U D G M E N T
The defendant before Additional Munsiff
Court, Kollam in O.S.No.651/2019 challenges Ext.P6
order dismissing his I.A.No.5041/2019 by which he
sought express permission of the court for
executing a Will in respect of suit property
during the pendency of the suit.
2. The plaintiff, who is petitioner's
daughter filed a suit for declaration that the
property belongs to her and it was purchased using
her funds. A consequential injunction was also
sought in the suit.
3. The court below in I.A.No.3916/2019 filed
by the respondent granted an interim order of
injunction restraining the petitioner from
executing deeds and documents transferring the
property. While that order continued to be in
force, the petitioner filed an application under
Section 151 of the Code of Civil Procedure,1908
O.P.(C)No.119/2021
seeking to vacate the order of injunction in force
as well as for an order granting permission for
executing a Will in respect of the suit property.
4. The court below instead of hearing
I.A.No.3916/2019 along with I.A.No.5041/2019,
considered the latter application and dismissed
the same holding that the intention behind
instituting the petition was to circumvent the
relief claimed by the respondent.
5. I heard the learned counsel appearing for
the petitioner as well as the respondent.
6. After hearing both sides, I am of the
opinion that the court below should have rather
examined the question as to whether there existed
any prima facie case in favour of the
respondent/plaintiff which could legally sustain a
plea for an order of injunction in her favour.
7. The method of approach adopted by the
court below seems to be not worth appreciating.
Despite the fact that the petitioner sought
permission for execution of Will rightly or
otherwise, the court below should have enquired
into the question as to whether the plaintiff has
satisfied the test of prima facie case, balance of
O.P.(C)No.119/2021
convenience etc. and decided both applications
together.
8. Once it is found that the prima facie
case is not made out by the respondent, the
interim order of injunction in force could no
longer survive and the petitioner may thereafter
act freely. On the other hand, if a prima facie
case is established, it goes without saying that
permission sought by the defendant/father for
execution of Will may not merit any consideration.
9. I do not want to express any opinion on
merits of the contentions advanced by the parties.
It suffices to say that the court below should
have decided both I.A.Nos.5041/2019 and 3916/2019
jointly applying the test of prima facie case,
balance of convenience etc. and passed a
considered order. I find my way difficult to
sustain the impugned Ext.P6 order. It is liable to
be set aside.
In the result, original petition is allowed
setting aside Ext.P6 order. The court below is
directed to dispose of I.A.Nos.5041/2019 and
3916/2019 jointly after hearing parties affording
them reasonable opportunity. It is directed that
O.P.(C)No.119/2021
Interlocutory applications shall be disposed of
within one month from the date of receipt of a
certified copy of this judgment.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.119/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN
O.S.NO.651/2019 OF THE ADDITIONAL
MUNSIFF COURT, KOLLAM DATED 25/09/2019.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT
DATED 20/11/2019 FILED BY THE
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE INJUNCTION PETITION AS
I.A.3917/19 IN O.S.651/19 OF THE ADDL.
MUNSIFF COURT, KOLLAM DATED 25/09/2019.
EXHIBIT P4 TRUE COPY OF THE ORDER IN IA 3916/19 IN
OS.651/19 OF THE ADDL.MUNSIFF COURT,
KOLLAM.
EXHIBIT P5 TRUE COPY OF THE OBJECTION IN IA
5041/19 IN OS.651/19 OF THE
ADDL.MUNSIFF COURT, KOLLAM DATED
15/11/2019.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23/06/2020
IN IA.5041/19 IN OS.651/19 OF THE
ADDL.MUNSIFF COURT, KOLLAM.
RESPONDENTS' EXHIBITS: NIL
