Kerala High Court
P.Kunhikrishnan vs Nalini Edavan Puthalath on 18 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 18TH DAY OF APRIL 2023 / 28TH CHAITHRA, 1945
OP(C) NO. 928 OF 2023
CHALLENGING THE ORDER DATED 27.03.2023 IN I.A.NO.02/2022 IN
O.S.NO.566 OF 2022 OF THE MUNSIFF COURT, THALIPARAMBA
PETITIONER/PLAINTIFF:
P.KUNHIKRISHNAN,
AGED 76 YEARS,
S/O LATE MADHAVI AMMA, RESIDING AT PADAPPAYIL HOUSE,
CHUZHALI AMSOM DESOM, TALIPARMBA TALUK, P.O.CHUZHALI,
KANNUR - 670 142.
BY ADVS.
MAHESH V RAMAKRISHNAN
PRAVEEN K.S.
RESPONDENTS/DEFENDANTS:
1 NALINI EDAVAN PUTHALATH,
W/O PADMANABHAN K.V., AGED 55 YEARS, RESIDING AT
'KARTHIKA, EZHOME AMSOM DESOM OF PAYYANUR TALUK,
P.O.EZHOME, KANNUR, PIN - 670 334.
2 BHASKARAN KALLYADAN THAZHATH VEETTIL,
S/O KUNHIRAMAN NAMBIAR, AGED 78 YEARS, RESIDING AT
KIRATH, CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
3 SAROJINI AMMA,
W/O K.T.KRISHNAN NAMBIAR, RESIDING AT KIRATH, CHUZHALI
AMSOM DESOM, P.O.CHUZHALI, KANNUR - 670 142
4 VIJESH,
S/O LATE K.T.KRISHNAN NAMBIAR, AGED 40 YEARS,
RESIDING AT KIRATH, CHUZHALI AMSOM DESOM,
P.O.CHUZHALI, KANNUR - 670 142.
5 SAVITHA,
D/O LATE K.T.KRISHNAN NAMBIAR, AGED 38 YEARS,
RESIDING AT KIRATH, CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
6 SANITHA,
D/O LATE K.T.KRISHNAN NAMBIAR, AGED 35 YEARS,
RESIDING AT KIRATH, CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
OP(C) NO. 928 OF 2023
2
7 GOPALAN NAMBIAR
KALLYADAN THAZHATH VEETTIL, AGED 80 YEARS,
RESIDING AT KIRATH, CHUZHALI AMSOM DESOM,
P.O.CHUZHALI, KANNUR - 670 142.
8 BALAKRISHNAN PAPPINISSERY PUTHIYA VEETTIL,
S/O KAMALAKSHI AMMA, AGED 63 YEARS, RESIDING AT
POKKUNDU, KURUMATHUR AMSOM DESOM, P.O.POKKUNDU,
VIA.KARIMBAM, KANNUR - 670 142.
9 MULLIKKOTTU GOVINDAN,
S/O KELAPPAN, AGED 62 YEARS, CHUZHALI AMSOM
DESOM, P.O.CHUZHALI, KANNUR - 670 142.
10 BALAKRISHNAN PUTHIYA VEETTIL OTHAYOTH
S/O KALLYANI AMMA, AGED 65 YEARS, CHUZHALI AMSOM
DESOM, P.O.CHUZHALI, KANNUR - 670 142.
11 THAZHATH VEETTIL OTHAYOTH SUMATHI,
W/O GOVINDAN, AGED 55 YEARS, CHUZHALI AMSOM
DESOM, P.O.CHUZHALI, KANNUR - 670 142.
12 THAZHATH VEETTIL OTHAYOTH SUDHESH,
S/O BALAKRISHNAN, AGED 35 YEARS, CHUZHALI AMSOM
DESOM, P.O.CHUZHALI, KANNUR - 670 142.
13 BALAKRISHNAN NADUVICHERY,
S/O CHANDUKUTTY, AGED 66 YEARS, CHUZHALI AMSOM
DESOM, P.O.CHUZHALI, KANNUR - 670 142.
14 KARTHIYAYANI K,
D/O LATE KUNHIRAMAN NAIR, AGED 80 YEARS, RESIDING
AT CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
15 PADAPPAYIL NARAYANAN NAIR,
S/O LATE KALLYANI AMMA, AGED 80 YEARS, CHUZHALI
AMSOM DESOM, P.O.CHUZHALI, KANNUR - 670 142.
16 PADAPPAYIL NARAYANAN,
S/O LATE PADAPPAYIL LEELA AMMA, AGED 60 YEARS,
CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
17 PADAPPAYIL SATHYABHAMA,
D/O LATE PADAPPAYIL DEVI AMMA, AGED 65 YEARS,
MUNDATHADAM, CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
18 PADAPPAYIL KUNHIKANNAN,
S/O LATE PADAPPAYIL JANAKI AMMA, AGED 65 YEARS,
CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
19 RAJAN,
S/O KARTHIYAYANI AMMA, AGED 52 YEARS,
CHUZHALI AMSOM DESOM, P.O.CHUZHALI,
KANNUR - 670 142.
OP(C) NO. 928 OF 2023
3
BY ADVS.
MATHEW kURIAKOSE
J.KRISHNAKUMAR (ADOOR)(K/731/2011)
MONI GEORGE(K/1593/2019)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
18.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 928 OF 2023
4
JUDGMENT
Ext.P10 order passed by the Munsiff Court, Taliparamba is
under challenge in this Original Petition.
2. The petitioner herein is the plaintiff and the respondents
are the defendants in O.S.No.566 of 2022. The suit was one for
declaration and injunction. Along with the suit, the petitioner filed
I.A.No.2 of 2022 under Order 39 of Rule 1 of Civil Procedure Code (in
short 'CPC') seeking interim prohibitory injunction against the
defendants 1 to 13, who are shown as the respondents in the said
petition. The court below granted an ad-interim injunction in favour
of the petitioner restraining the respondents / defendants 1 to 13
from committing any acts of waste or damage in the plaint schedule
property until further orders . The petitioner was directed to comply
with the proviso to Order 39 Rule 3 of CPC. Ext.P3 was the said
order. Thereafter, the respondents 1 to 12 entered appearance and
filed objection statement to the injunction application. A specific plea
was raised in their objection statement that Order 39 Rule 3 of CPC
has not been complied with. Accordingly, Ext.P10 order was passed
by the court below by vacating the injunction order on the ground of
non compliance of Order 39 Rule 3 proviso a of the CPC. The said
OP(C) NO. 928 OF 2023
order is under challenge in this Original Petition.
3. Heard Sri.Mahesh V Ramakrishnan, the learned counsel
for the petitioner and Sri.Mathew Kuriakose, the learned counsel for
respondents 1 to 12.
4. The respondents 1 to 12 have already filed a detailed
objection statement along with all the documents to support their
contentions before the court below. At any rate, Ext.P3 order passed,
was an ex parte one. Both counsel submits that both of them are
ready to argue the injunction application itself before the court below.
The learned counsel for the respondents 1 to 12 submits that they are
extracting laterite stones from the property and in view of the
injunction order, they are unable to do it. In these circumstances, the
counsel press for hearing at the vacation court.
5. Having heard both sides, I am of the view that this
Original Petition can be disposed of with a direction to the vacation
court to consider injunction application itself without going into the
question whether there is non compliance of proviso a to Order 39
Rule 3 or not.
Hence, this Original Petition is disposed of with a direction to
the Vacation Judge, Thalassery to take up I.A.No.2 of 2022 in
OP(C) NO. 928 OF 2023
O.S.No.566 of 2022 on the files of Munsiff Court, Taliparamba and
dispose of the same after hearing both sides, within a period of three
weeks from the date of receipt of a copy of this judgment. Till then,
the respondents shall not commit any acts of waste in the plaint
schedule property.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
DK
OP(C) NO. 928 OF 2023
APPENDIX OF OP(C) 928/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT DATED DATED 11-
11-2022 IN O.S. NO.566 OF 2022 OF THE
MUNSIFF COURT, TALIPARAMBA
Exhibit P2 TRUE COPY OF THE PETITION DATED 11-11-
2022 IN I.A. NO.2/2022 IN O.S.
NO.566/2022
Exhibit P3 TRUE COPY OF THE ORDER DATED 11-11-2022
IN I.A. NO.2/2022 IN O.S. NO.566/2022
Exhibit P4 TRUE COPY OF THE REPORT DATED 28-11-2022
FILED BY THE ADVOCATE COMMISSIONER IN
O.S. NO.566/2022.
Exhibit P5 TRUE COPY OF THE POSTAL RECEIPT DATED
15-11-2022
Exhibit P6 TRUE COPY OF THE COUNTER STATEMENT DATED
20-01-2023 FILED BY RESPONDENT NO.1 IN
I.A. NO.2/2022
Exhibit P7 TRUE COPY OF THE COUNTER STATEMENT DATED
27-01-2023 FILED BY RESPONDENTS NO.2 TO
7 IN I.A. NO.2/2022
Exhibit P8 TRUE COPY OF THE COUNTER STATEMENT DATED
27-01-2023 FILED BY RESPONDENT NO.8 IN
I.A. NO.2/2022
Exhibit P9 TRUE COPY OF THE COUNTER STATEMENT DATED
23-12-2022 FILED BY RESPONDENTS NO.9 TO
12 IN I.A. NO.2/2022
Exhibit P10 TRUE COPY OF THE ORDER DATED 27-03-2023
IN I.A. NO.2/2022 IN O.S. NO.566/2022
Exhibit P11 TRUE COPY OF THE ADDITIONAL REPORT DATED
30-03-2023 FILED BY THE ADVOCATE
COMMISSIONER IN O.S. NO.566/2022
