Aby Abraham vs Abraham
2022 Latest Caselaw 1544 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                  OP(C) NO. 806 OF 2021
    OS 255/2020 OF MUNSIFF MAGISTRATE COURT,THODUPUZHA
PETITIONER/S:

         ABY ABRAHAM
         AGED 27 YEARS
         S/O.ABRAHAM, PULICKAKUNNEL HOUSE, VANDAMATTOM
         P.O., KURUMBALAMATTOM KARA, KARIMANOOR VILLAGE.
         BY ADVS.
         MATHEW JOHN (K)
         SRI.MATHEW DEVASSI
         SRI.ABY J AUGUSTINE

RESPONDENT/S:

         ABRAHAM
         AGED 71 YEARS
         S/O.ROCKEY, PULICKAKUNNEL HOUSE, VANDAMATTOM
         P.O., KURUMBALAMATTOM KARA, KARIMANOOR VILLAGE,
         NOW RESIDING AT BUILDING OF POULOSE,
         VANDANAKKARA, VANDAMATTOM, OPP.VANDAMATTOM
         CATHOLIC CHURCH, VANDAMATTOM, IDUKKI DISTRICT.
         BY ADVS.
         GEORGE MATHEW
         ELSA DENNY PINDIS
         M.D.SASIKUMARAN
         SUNIL KUMAR A.G
         DIPU JAMES
         MATHEW K.T.
         K.V.GEORGE
         STEPHY K REGI
         PRAVEEN S.


THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2021,

THE COURT ON 15.02.2022 DELIVERED THE FOLLOWING:
 OP(C) No.806 of 2021

                                        -2-



                                  JUDGMENT

Dated this the 15th day of February, 2022

The petitioner is the defendant in O.S.No.255

of 2020 pending on the files of the Munsiff's

Court, Thoduppuzha. The suit is filed by the

respondent, who is none other than the

petitioner's father, praying for a decree of

permanent prohibitory injunction restraining the

petitioner from entering upon the plaint schedule

property, residential building and appurtenant

structures therein and from disturbing the

possession and enjoyment of plaint schedule

property by the respondent. As per the averments

in the plaint, the respondent is having absolute

title and possession over plaint schedule

property having an extent of 4 Acres and 634

sq.links, along with the residential building and

appurtenant structures therein. The petitioner, a OP(C) No.806 of 2021

bachelor, though gainfully employed, is

compelling the respondent to transfer the

property to his name. The respondent wanted to

sell 60 cents of his land for improving the

residential building. On coming to know about

this, petitioner assaulted the respondent on

17.08.2020, resulting in injuries and

hospitalization. In spite of the respondents

repeated requests to leave the house, petitioner

is continuing to reside in the house, causing

apprehension to the respondent that he may be put

to harm again. Hence, the suit.

2. Along with the suit, the respondent filed

an application for interim injunction with the

very same allegations as in the plaint. The

petitioner filed counter affidavit stating that

the respondent is suffering from mental disorder

and psychiatric problems and is making life

miserable for his mother and he has to ensure his OP(C) No.806 of 2021

mother's safety by being present in the house.

According to the petitioner, on 17.08.2020, the

respondent quarreled with his mother and started

manhandling her. The petitioner intervened on

seeing this and he was also beaten up.

Immediately thereafter, the respondent lodged a

false complaint at the Karivannur Police Station

and a crime was registered against the

petitioner. The petitioner's mother also

submitted complaint regarding the incident.

Thereupon, the respondent was summoned to the

police Station and warned. After that incident,

the respondent shifted his residence from the

house to a furnished room opposite Vandamattom

Catholic Church. Even though the petitioner is

employed in a private company at Bangalore, he is

presently working from home in view of the

pandemic situation. The respondent has stashed

away huge amounts generated from the property and OP(C) No.806 of 2021

has filed the suit in an attempt to drive away

the petitioner and his mother from the house. No

cause of action for filing the suit has arisen.

In any event, a prohibitory injunction cannot be

granted against the petitioner, since he is not a

trespasser and has every right to reside in the

house situated in the plaint schedule property.

By Ext.P8 order, the trial court allowed the

injunction application. Aggrieved, the petitioner

preferred appeal before the District Court, which

stands dismissed by Ext.P9 judgment. Hence, the

original petition.

3. Heard Adv.Mathew John for the petitioner

and Adv.George Mathew for the respondent.

4. Learned Counsel for the petitioner relied

on the decision of the Jammu Kashmir High Court

in Mohammed Hashim Bunday and others v.Ghulam

Mohiuddin Banday and others (I.A No.1/2019 in OWP

No.393/2019-order dated 19.4.2019) to drive home OP(C) No.806 of 2021

the point that in the absence of a prima facie

case, the other two requirements, namely, balance

of convenience and irreparable loss, lose their

significance. Reference is also made to the

observation that, injunctions and stay orders

should not be granted mechanically, without

realizing the harm likely to be caused to the

opposite party and that, while considering grant

of injunction to mitigate the risk of injustice,

court should also weigh the corresponding need of

the defendant to be protected against injury.

According to the learned Counsel, the respondent

miserably failed to make out a prima facie case

and even the alleged cause of action, of the

petitioner having assaulted the respondent on

17.08.2020, is proved to be false. Moreover, the

petitioner cannot be termed a rank trespasser and

his continuance in the house is necessary to

protect his mother from the cruelties meted out OP(C) No.806 of 2021

by the respondent. Moreover, since the petitioner

is residing in the house, he cannot be ousted

without resorting to due process of law.

5. In answer, learned Counsel for the

respondent contended that all three factors

essential for grant of injunction are available

in the case. The trial, as well as the appellate

court having concurrently found those points in

the respondent's favour, no interference is

warranted in exercise of the supervisory

jurisdiction under Article 227. It is contended

that the respondent and his wife were living in

the house peacefully till the petitioner came

back from Bangalore. The respondent, a person

aged 71 years, is being threatened and

intimidated constantly by the petitioner. The

respondent was willing to even transfer a portion

of the property in favour of the petitioner so as

to purchase peace, but the petitioner is bent OP(C) No.806 of 2021

upon ousting the respondent from his own house.

Hence, a prima facie case is made out and

irreparable injury would be caused if the

petitioner is not restrained. The balance of

convenience is also in the respondents' favour.

4. After hearing the Counsel on either side, an

attempt was made to settle the disputes through

mediation. The mediation having failed, an

interim order was passed directing the respondent

to return to his house and reside with his wife

and son, under the watchful eyes of the police.

Even that did not yield any positive result and

the parties continued their mudslinging. Hence, I

proceed to decide the original petition,

conscious of the position that, while exercising

supervisory jurisdiction under Article 227, this

court is not expected to decide the factual

disputes.

      6.    In        so     far     as          an     application           for
 OP(C) No.806 of 2021

injunction is concerned, what is to be examined

is whether (i) plaintiff has a prima facie case

to go for trial(ii) irreparable injury that may

result if the respondent is not injuncted (iii)

the balance of convenience. Here, indisputably,

the respondent is having absolute title and

possession over plaint schedule property. Being

so, he has every right to enjoy the property in

the manner he wants and if the petitioner

interferes with such enjoyment, that will

definitely give rise to a cause of action. On the

other hand, petitioner's presence in the property

can, at best, be termed as only permissive

occupation. Hence, the contention that no

injunction can be granted against a person in

possession does not hold good. The trial as well

as appellate courts having found the respondent

to be entitled for interim injunction, this court

will not be justified in upsetting the orders. To OP(C) No.806 of 2021

hold thus, I rely on the decision of the Apex

Court in Sadhana Lodh v. National Insurance Co.

Ltd. [(2003) 3 SCC 524], the contextually

relevant portion of which is as under;

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."

Therefore, despite the forceful submissions of

the learned Counsel for the petitioner, relying

on many a precedent, including the scholarly

judgment of Justice of Tashi Rabstan of the Jammu

and Kashmir High Court in Mohammed Hashim Banday

(supra), I am not inclined to interfere with the

impugned order/judgment. Needless to say, the OP(C) No.806 of 2021

findings of the courts below being only prima

facie in nature, shall not impact the final

decision in the suit, which is to be rendered on

the basis of the evidence let in by the parties.

In the result, the original petition is

dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ OP(C) No.806 of 2021

APPENDIX OF OP(C) 806/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT O.S.NO.255/2020 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THODUPUZHA.

EXHIBIT P2 TRUE COPY OF THE I.A.NO.1/2020 FILED BY THE RESPONDENT IN O.S.NO.255/2020 BEFORE THE MUNSIFF COURT, THODUPUZHA. EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A.NO.1/2020 IN O.S.NO.255/2020 BEFORE THE MUNSIFF COURT, THODUPUZHA. EXHIBIT P4 PHOTOGRAPH SHOWING THE RESIDENTIAL HOUSE AND THE PREMISES MAINTAINED BY THE RESPONDENT.

EXHIBIT P4(A) PHOTOGRAPH SHOWING THE RESIDENTIAL HOUSE AND THE PREMISES MAINTAINED BY THE RESPONDENT.

EXHIBIT P4(B) PHOTOGRAPH SHOWING THE RESIDENTIAL HOUSE AND THE PREMISES MAINTAINED BY THE RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT SWORN TO BY C.C.VARGHESE IN I.A.NO.1/2020 IN O.S.NO.255/2020 BEFORE THE MUNSIFF COURT, THODUPUZHA.

EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT SWORN TO BY ELIZABETH W/O.ABRAHAM IN I.A.NO.1/2020 IN O.S.NO.255/2020 BEFORE THE MUNSIFF COURT, THODUPUZHA.

EXHIBIT P7 TRUE COPY OF THE REPORT DATED 25.10.2020 FILED BY THE STATION HOUSE OFFICER, KARIMANOOR POLICE.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 10.12.2020 IN I.A.NO.1/2020 IN O.S.NO.255/2020 PASSED BY THE MUNSIFF COURT, THODUPUZHA.

OP(C) No.806 of 2021

EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THE DISTRICT COURT, THODUPUZHA IN CMA NO.63/2020 DATED 25.02.2021.

EXHIBIT P10 TRUE COPY OF THE I.A.NO.7 OF 2020 IN O.S.NO.255/2020 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THODUPUZHA.

EXHIBIT P11 TRUE COPY OF THE INTERLOCUTORY APPLICATION DATED 25.03.2021 IN O.S.NO.255/2020 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THODUPUZHA.

Exhibit P12 TRUE COPY OF THE ENDORSEMENT IN THE FRONT PAGE OF THE BOOK PLACED BY THE POLICE OFFICIALS IN THE HOUSE IN THE PLAINT SCHEDULE PROPERTY.

RESPONDENT EXHIBITS Exhibit R 13 TRUE COPY OF THE ENDORSEMENTS MADE BY THE POLICE OFFICIALS IN THE BOOK KEPT IN THE PLAINT SCHEDULE PROPERTY.