Prakash T John vs Alex T John
2023 Latest Caselaw 5167 Ker

          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. 948 OF 2023
         OS 183/2015 OF MUNSIFF COURT, CHANGANACHERRY
PETITIONER/1ST DEFENDANT IN O.S:

          PRAKASH T JOHN
          AGED 63 YEARS
          S/O LATE JOHN THONDANKULANGARA HOUSE,
          KADAYANICADU P.O, VAZHOOR VILLAGE,
          CHANGANACHERRY TALUK KOTTAYAM, PIN - 686541

          BY ADVS.
          K.R.SUNIL
          G.SREEKUMAR (CHELUR)



RESPONDENTS AND STATE/PLAINTIFFS AND DEFENDANT IN O.S.:

    1     ALEX T JOHN
          DIED ON 19.05.2022, THONDANKULANGARA HOUSE,
          KADAYANICADU P.O, VAZHOOR VILLAGE,
          CHANGANACHERRY TALUK KOTTAYAM, PIN - 686541

    2     REJI JOSEPH
          S/O JOSEPH, NARIKKATTU HOUSE,
          VAZOOR VILLAGE AND KARA, CHAMPATHAL P.O,
          CHANGANACHERRY TALUK, KOTTAYAM, PIN - 686541

    3     ANILA ALEX
          D/O LATE ALEX T JOHN @ ALEXANDER,
          THONDANKULANGARA HOUSE, KADAYANICADU P.O,
          VAZHOOR VILLAGE,CHANGANACHERRY TALUK KOTTAYAM,
          PIN - 686541

    4     JOHN ALEX
          S/O LATE ALEX T JOHN @ ALEXANDER,
          THONDANKULANGARA HOUSE, KADAYANICADU P.O,
          VAZHOOR VILLAGE, CHANGANACHERRY TALUK,
 OP(C) NO. 948 OF 2023

                                    2


             KOTTAYAM, PIN - 686541

    5        MERIN ALEX
             D/O LATE ALEX T JOHN @ ALEXANDER,
             THONDANKULANGARA HOUSE, KADAYANICADU P.O,
             VAZHOOR VILLAGE CHANGANACHERRY TALUK KOTTAYAM,
             PIN - 686541

    6        STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

             BY ADVS.
             A.K.ALEX
             P.KURUVILLA JACOB(K/26/1974)



OTHER PRESENT:

             SR.PP- SMT. REKHA.S




     THIS     OP   (CIVIL)    HAVING    COME   UP    FOR    ADMISSION   ON
18.04.2023,     THE   COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 948 OF 2023

                                    3




                          JUDGMENT

Notice has been issued to the respondents 1 to 5 through special

messenger. Notice has been served. The respondents 2 to 5 entered

appearance.

2. I have heard Sri.K.R.Sunil, the learned counsel for the

petitioners, Sri.A.K.Alex, the learned counsel for the respondents 1 to 5

and Smt.Rekha S., the learned Senior Public Prosecutor.

3. The petitioner, who was the 1st defendant in O.S.No.183 of

2015 on the files of the Munsiff Court, Changanacherry, suffered a

decree for permanent prohibitory injunction. The respondent No.1

herein was the plaintiff in the said suit. The respondent No.1 is no

more. The respondent Nos.3 to 5 are the legal heirs. The petitioner is

running a crusher unit. The injunction granted was that the petitioner

shall not run the crusher unit without obtaining a proper licence. Now

after the decree is passed, the respondent No.1 filed Ext.P7 application

to pass an order to stay the operation of the crusher unit with

immediate effect on the ground that the petitioner has violated the

decree.

4. According to the petitioner, Ext.P7 itself is not maintainable OP(C) NO. 948 OF 2023

and the remedy open to the respondent No.1 is to file an execution

petition. The learned counsel for the petitioner submits that even

though the petitioner has raised an issue of maintainability before the

learned Munsiff, the learned Munsiff is proceeding with Ext.P7

application. Ext.P8 is the objection filed by the petitioner. In paragraph

2 of the objection statement, the petitioner has specifically raised a plea

that Ext.P7 is not maintainable.

5. The petitioner has raised a specific contention that the

petition is not maintainable. In view of the said plea, the court below

ought to have considered the maintainability of Ext.P7 petition before

considering it on merits.

In these circumstances, this original petition is disposed of with a

direction to the learned Munsiff to consider the question of

maintainability of Ext.P7 first. If the court below finds, after hearing

both sides, that Ext.P7 is maintainable, then the court below shall

consider and dispose of the same on merits, in accordance with law.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE AS OP(C) NO. 948 OF 2023

APPENDIX OF OP(C) 948/2023

PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT AND DECREE PASSED BY THE MUNSIFF'S COURT, CHANGANACHERRY DATED 24.07.2017 IN O.S.NO.183/2015

EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 07.02.2022 I.A. NO.1 OF 2022 IN W.P.(C) NO. 8082 OF 2019 OF THIS HON'BLE COURT

EXHIBIT P3 THE TRUE COPY OF THE REPORT DATED 10.03.2022 SUBMITTED BY THE ADVOCATE COMMISSIONER ELZA MATHEW BEFORE THE MUNSIFF'S COURT, CHANGANASSERY

EXHIBIT P4 THE TRUE COPY OF THE OBJECTION DATED 04.06.2022 FILED BY THE PETITIONER HEREIN IN I.A. NO. 4 OF 2022

EXHIBIT P5 THE TRUE COPIES OF THE APPLICATION DATED NIL SUBMITTED BY THE PETITIONER

EXHIBIT P6 THE TRUE COPIES OF THE OBJECTIONS FILED BY THE LEGAL HEIRS OF THE 1ST RESPONDENT DATED 01.02.2023

EXHIBIT P7 TRUE COPY OF THE INTERLOCUTORY APPLICATION NUMBERED AS I.A. NO.1 OF 2022 IN OS NO.183/2015 FILED BY THE LST AND 3RD RESPONDENT DATED 04.01.2022 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY

EXHIBIT P8 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED NIL