Deepa vs K.M. Salomi
2022 Latest Caselaw 4086 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MR.JUSTICE K. BABU
     THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
                           OP(C) NO. 697 OF 2022
  AGAINST THE PROCEEDINGS IN I.A.NO.2/2022 IN CMA 2/2022 OF SUB
                                 COURT, KANNUR
PETITIONER/PETITIONER/APPELLANT:

             DEEPA,
             AGED 56 YEARS,
             W/O LATE JAYACHANDRAN P.P,
             " NIRVRITHI", NEAR SREE KRISHNA MADAM ROAD,
             ALAVIL P.O. CHIRAKKAL AMSOM DESOM,
             KANNUR - 670008
             BY ADVS.
             ABDUL RAOOF PALLIPATH
             K.R.AVINASH (KUNNATH)
             E.MOHAMMED SHAFI


RESPONDENT/RESPONDENT/RESPONDENT:

             K.M. SALOMI,
             AGED 57 YEARS,
             W/O PRAVEEN KUMAR,
             HOUSEWIFE, "SHANTHI",
             PANNENPARA ROAD, PALLIKKUNNU AMSOM DESOM,
             KANNUR, PIN - 670004
     THIS     OP    (CIVIL)      HAVING   COME   UP    FOR    ADMISSION   ON
07.04.2022,        THE   COURT    ON   THE    SAME    DAY    DELIVERED    THE
FOLLOWING:
 O.P(C) No.697 of 2022
                                        2

                                  K.BABU, J.
                  --------------------------------------
                           O.P(C) No.697 of 2022
                 ---------------------------------------
                     Dated this the 7th day of April, 2022

                                  JUDGMENT

The prayers in this Original Petition filed under Article 227 of

the Constitution of India are as follows:

"(i) Call for records leading to the issuance of Ext.P6 and P8 order and set aside same and allow the Ext.P7 application I.A.2/2022 filed by the petitioner for ad interim injunction in C.M.A 02/2022 on the file of Sub Court, Kannur.

(ii) Grant such other reliefs as this Hon'ble Court may deem fit and proper as on the facts and circumstances of the case."

2. The petitioner is the plaintiff in O.S.No.314/2021 on the file

of the Munsiff's Court, Kannur. The petitioner claims that the

petition schedule property with the larger extent, originally

belonged to one Late Parakkuni Pokken. The petitioner is the wife

of late Sri.P.P.Jayachandran, the son of Pokken. He has five other

siblings. According to the petitioner, the petition schedule

property and the larger extent is partible among the legal heirs of

Pokken.

3. The petitioner and the other co-owners instituted a suit O.P(C) No.697 of 2022

for partition in respect of the plaint schedule property and the

larger extent as O.S.No.272/2021 before the Munsiff's Court.

4. While the suit for partition is pending, the respondent, a

stranger, was inducted into the tharawadu house in the plaint

schedule property on the strength of an assignment deed executed

by one of the sharers. The respondent made attempt to alter the

nature of the tharawadu house.

5. Therefore, the petitioner filed O.S.No.314/2021 seeking

permanent injunction against the respondent. In the suit, the

petitioner filed I.A.No.2/2021 for temporary injunction against the

respondent. The application seeking temporary injunction was

dismissed by the Munsiff's Court as per Ext.P6 order. The

petitioner challenged Ext.P6 order by filing C.M.A.No.2/2022 before

the Subordinate Judge's Court, Kannur. The petitioner also filed

I.A.No.2/2022 in C.M.A.No.2/2022, seeking an ad-interim injunction

against the respondent. The Subordinate Judge's Court dismissed

that application (Ext.P8). This order is under challenge in this

original petition.

6. Heard Sri.E.Mohammed Shafi, the learned counsel O.P(C) No.697 of 2022

appearing for the petitioner.

7. The learned Subordinate Judge dismissed I.A.No.2/2022 in

C.M.A.No.2/2022 (Ext.P8) based on the following reasons:

"10. The approved plan and permit issued by the local authority marked in evidence as Ext.B15 would prove that the house was constructed by the respondent's transferor's husband P.P.Rajan during the year 1998-2001 after obtaining a valid plan and permit from the local authority. Ext.B6 to Ext.B8 further revealed that the respondent has been renovating the house, after taking the approved plan and permit from the local authority and if construction was stopped it would cause inconvenience to the respondent. Hence, the balance of convenience is not in favour of the petitioner. Hence, this Court finds that the petitioner is not entitled to the equitable relief of temporary injunction against the respondent as prayed."

8. This Court finds no irregularity or illegality in the

impugned order.

9. The power under Article 227 of the Constitution would be

restricted to interference in cases of grave dereliction of duty or

flagrant violation of law and would be exercised most sparingly in

cases where grave injustice would be done unless the High Court

interferes. It cannot be used as an appellate or revisional power.

10. The supervisory jurisdiction is not available to correct

mere errors of fact or law unless the following requirements are

satisfied-- (1) the error is manifest or apparent on the face of the O.P(C) No.697 of 2022

proceeding such as when it is based on clear ignorance or utter

disregard of the provisions of law; and (2) a grave injustice or

gross failure of justice occasioned thereby.

11. The learned counsel for the petitioner prayed for passing

an order to the effect that any construction made in the property

shall be subject to the outcome of O.S.No.314/2021 and

O.S.No.272/2021 on the file of the Munsiff's Court, Kannur.

12. It is ordered that any construction made hereinafter in

the property shall be subject to the outcome of O.S.No.314/2021

and O.S.No.272/2021 on the file of the Munsiff's Court, Kannur.

The Original Petition is disposed of as above.

Sd/-

K.BABU, JUDGE KAS O.P(C) No.697 of 2022

APPENDIX OF OP(C) 697/2022

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF PLAINT IN O.S.314/2021 BEFORE THE ADDITIONAL MUNSIFF COURT, KANNUR FILED BY THE PETITIONER DATED 7.10.2021 Exhibit P2 THE TRUE COPY OF WRITTEN STATEMENT IN O.S. 314/2021 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, KANNUR DATED 29.11.2021 Exhibit P3 THE TRUE COPY OF THE REGISTERED ASSIGNMENT DEED NO: 2191/1937 Exhibit P4 TRUE COPY OF REGISTERED GIFT DEED NO.

1301/1993 DATED 17.5.1993 EXECUTED IN FAVOR OF PETITIONER'S HUSBAND JAYACHANDRAN Exhibit P5 THE TRUE COPY OF COMMISSIONER'S REPORT AND PLAN DATED 15.11.2021 IN I.A. NO.

5/2021 IN O.S 314/2021 Exhibit P6 THE TRUE COPY OF THE ORDER DATED 1.1.2022 DISMISSING IA 2/2021 IN O.S. 314/2021 ON THE FILE OF ADDITIONAL MUNSIFF, KANNUR Exhibit P7 THE TRUE COPY OF THE AFFIDAVIT WITH PETITION IN IA 2/2022 IN CMA 2/2022 BEFORE THE SUB COURT, KANNUR Exhibit P8 THE TRUE COPY OF ORDER DATED 19.2.2022 IN IA 02/2022 IN CMA 02/2022 ON THE FILE OF SUB COURT, KANNUR