Kerala High Court
Prasannan vs Sreelatha. L on 9 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
OP(C) NO. 1559 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 447/2022 OF MUNSIFF
COURT,KAYAMKULAM
CMA 23/2023 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA
PETITIONER/S:
1 PRASANNAN
AGED 51 YEARS
S/O THANKAPPAN,KARUNYAM, ERUVA WEST MURI, PATHIYOOR
VILLAGE, KARTHIKAPALLY TALUK, ALAPUZHA DISTRICT., PIN -
690572
2 SUKUMARI
AGED 75 YEARS
W/O THANKAPPAN,ANANDHA BHAVANAM, ERUVA WEST MURI,
PATHIYOOR VILLAGE, KARTHIKAPALLY TALUK, ALAPUZHA
DISTRICT., PIN - 690572
3 KATHAL
AGED 19 YEARS
S/O PRASANNAN,KARUNYAM, ERUVA WEST MURI, PATHIYOOR
VILLAGE, KARTHIKAPALLY TALUK, ALAPUZHA DISTRICT., PIN -
690572
BY ADVS.
G.BHAGAVAT SINGH
KELU BHAGAVAT
RESPONDENT/S:
1 SREELATHA. L
AGED 47 YEARS
W/O UDAYA KUMAR,AISHWARYA, ERUVA WEST MURI, PATHIYOOR
VILLAGE, KARTHIKAPALLY TALUK., PIN - 690572
2 NITHYA S
AGED 25 YEARS
D/O SREELATHA.L ,KRISHNA NIVAS, PRAYAR SOUTH MURI,
CLAPPANA VILLAGE, ALUMPEEDIKA, KARUNAGAPALLY TALUK FROM
AISHWARYA, ERUVA WEST MURI, PATHIYOOR VILLAGE, KARTHIKA
OP(C) NO. 1559 OF 2023
2
PALLY TALUK., PIN - 690572
3 NITHIN U
AGED 21 YEARS
S/O LATE UDAYA KUMAR,AISHWARYA, ERUVA WEST MURI,
PATHIYOOR VILLAGE, KARTHIKAPALLY TALUK., PIN -
690572
BY ADVS.
C.S.MANILAL
S.NIDHEESH(K/1061/2007)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1559 OF 2023
3
JUDGMENT
The original petition is filed challenging Ext.P5
order passed by the Court of the Additional District
Judge-I, Mavelikkara (lower Appellate Court) in IA
No.2/2023 in CMA 23/2023.
2. The brief relevant facts for the determination of
the original petition are:
(i) The petitioners are the defendants in OS
No.447/2022 of the Court of the Munsiff,
Kayamkulam (Trial Court), which was filed by the
respondents, for declaration and other
consequential reliefs. Along with the suit the
respondents had also filed IA No.1/2022, for an
order of temporary injunction.
(ii) The Trial Court, by Ext.P4 order, partly allowed
I.A.No.1/2022 by restraining the 1st petitioner
from alienating the plaint 'C to F' schedule
properties and restraining the petitioners from
obstructing the peaceful possession and
OP(C) NO. 1559 OF 2023
residence of the respondents in plaint 'A'
schedule property.
(iii) Aggrieved by Ext.P4 order, the petitioners have
preferred CMA No.26/2023 and the respondents
have preferred CMA No.23/2023 before the
lower Appellate Court.
(iv) Along with CMA No.23/2023, the respondents
had filed IA No.2/2023 for a temporary order of
injunction, to restrain the petitioners from
carrying out any construction in plaint 'C to F'
schedule properties.
(v) The lower Appellate Court, by the impugned
Ext.P5 order, without affording the petitioners an
opportunity of being heard, initially passed an
ad-interim order of injunction and later
confirmed the order by Ext.P5 order, restraining
the petitioners from carrying out any
constructions in the plaint 'C to F' schedule
OP(C) NO. 1559 OF 2023
properties.
(vi) Ext.P5 is ex-facie illegal and unsustainable in law.
Hence, the original petition.
3. Heard; Sri.G.Bhagavat Singh, the learned
Counsel appearing for the petitioners and
Sri.C.S.Manilal, the learned Counsel appearing for the
respondents.
4. The point is whether there is any illegality in
Ext.P5 order.
5. Indisputably, CMA Nos.23 and 26/2023,
challenging Ext.P4 order, are pending consideration
before the lower Appellate Court.
6. The lower Appellate Court had initially passed
an ad-interim order in IA No.2/2023 in CMA
No.23/2023, and made it absolute by Ext.P5 order.
7. Both sides claim that, they are in possession of
the property, which is crux of the issue.
OP(C) NO. 1559 OF 2023
8. Admittedly, Ext.P5 order has been passed on the
basis of the rival affidavits during the pendency of the
appeals.
9. In the above conspectus, I am of the definite
view that a quietus can be given to the present original
petition by directing the lower Appellate Court to
consider and dispose of the appeals itself,
untrammeled by any observations made in Ext.P5
order, which in turn would do complete justice to both
sides.
Resultantly, in exercise of the supervisory powers
of this Court under Article 227 of the Constitution of
India, I dispose of the original petition as follows:
(i) The lower Appellate Court is directed to
consider and dispose of CMA Nos.23/2023
and 26/2023, in accordance with law and
as expeditiously as possible, at any rate on
or before 30.09.2023, untrammeled by
OP(C) NO. 1559 OF 2023
any observations made in Ext.P5 order.
(ii) It is made clear that this Court has not
expressed anything on the merits of
Ext.P5 order or on the appeals.
(iii) Until such time the appeals are disposed
of, Ext.P5 order shall continue to remain
in force.
Sd/-
C.S.DIAS
JUDGE
rkc/09.08.23
OP(C) NO. 1559 OF 2023
APPENDIX OF OP(C) 1559/2023
PETITIONER EXHIBITS
Exhibit P-1 COPY OF THE C.M.A.NO.23 OF 2023 ON THE
FILE OF ADDITIONAL DISTRICT COURT I
MAVELIKARA DATED 20.05.2023
Exhibit P-2 COPY OF THE O.S.NO.447 OF 2022 ON THE FILE
OF MUNSIFF COURT, KAYAMKULAM DATED
17.12.2022.
Exhibit P-3 COPY OF THE I.A.NO.1 OF 2022 IN
O.S.NO.447/2022 DATED 17/12/2022.
Exhibit P- 4 COPY OF THE ORDER IN I.A.NO.1/2022 IN
O.S.NO.447/2022 DATED 05.04.2023 OF THE
MUNSIFF COURT, KAYAMKULAM.
Exhibit P-5 COPY OF THE ORDER IN I.A.NO.2/2023 IN
C.M.A.NO.23/2023 DATED 24.06.2023.
Exhibit P-6 COPY OF THE SETTLEMENT DEED NO.1130/1/2022
OF KAREELAKULANGARA S.R.O EXECUTED BY LATE
UDAYA KUMAR DATED 16.09.2022
Exhibit P-7 COPY OF THE LAND TAX RECEIPT DATED
29.09.2022 ISSUED BY THE VILLAGE OFFICER,
PATHIYOOR VILLAGE.
Exhibit P-8 COPY OF THE LAND TAX RECEIPT DATED
27.05.2023 ISSUED BY THE VILLAGE OFFICER,
PATHIYOOR VILLAGE.
Exhibit P- 9 COPY OF THE O.P NO.1336/2022 BEFORE THE
FAMILY COURT MAVELIKARA DATED 31.08.2022.
Exhibit P-10 COPY OF THE PHOTOGRAPH OF THE BUILDING
UNDER CONSTRUCTION.
Exhibit P-11 COPY OF THE PHOTOGRAPH OF THE B SCHEDULE
PATHWAY.
