Kerala High Court
Velappan vs Sreedharan on 17 January, 2023
OP(C) NO. 689 OF 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
OP(C) NO. 689 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMA 21/2017 OF III ADDITIONAL
DISTRICT COURT, PALAKKAD /
OS 42/2017 OF MUNSIFF COURT, ALATHUR
PETITIONER/S:
VELAPPAN
AGED 70 YEARS
S/O.MAYANDI,ANDOD HOUSE,PANDAMKODE,
NELLIKODE,MOOLANKODE.P.O,
PALAKKAD.
BY ADVS.
SAJAN VARGHEESE K.
SRI.LIJU. M.P
SRI.JOPHY POTHEN KANDANKARY
RESPONDENT/S:
SREEDHARAN, AGED66 YEARS
S/O LATE MAYANDI,ANGOD HOUSE,
PANDAMKODE,NELLIKODE,MOOLAMKODE.P.O,
PALAKKAD.
BY ADV SMT.T.P.SINDHUMOL
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 689 OF 2019
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JUDGMENT
Confronted with Ext.P5 order passed in IA
No.229/2017 in OS No.42/2017 by the Court of the
Musniff, Alathur (Trial Court) and Ext.P6 judgment passed
in CMA No.21/2017 by the Court of the District Judge,
Palakkad (Appellate Court), the plaintiff in the suit has
filed the original petition. The respondent is the
defendant.
2. The skeletal facts, leading to Ext.P6 judgment, are:
(i) The petitioner has filed the suit against the
respondent for partition.
(ii) Along with the suit, the petitioner filed IA
No.229/2017 (Ext.P3) for an order of temporary
injunction, to restrain the respondent from
committing waste in the plaint schedule property,
demolishing the house situated therein and cutting
and removing timbers therefrom.
(iii) An Advocate Commissioner was appointed, who filed
Ext.P4 report.
OP(C) NO. 689 OF 2019
(iv) The Trial Court by the impugned Ext.P5 order,
dismissed Ext.P3 application.
(v) The Appellate Court, by Ext.P6 judgment, confirmed
Ext.P5 order. Exts.P5 and P6 are erroneous and
wrong. Hence, the original petition.
3. Heard; Sri.Sajan Varghese, the learned Counsel
appearing for the petitioner and Smt. T.P.Sindhumol, the
learned Counsel appearing for the respondent.
4. The question is, is there any illegality in Exts.P5
order and P6 judgment.
5. When this original petition came up for
consideration on 04.01.2023, this Court had called for a
report from the Trial Court, to ascertain the status and
time period required to dispose of the suit. The learned
Munsiff, Alathur, by communication dated 10.01.2023, has
informed this Court that the suit was posted for trial and
the court below would require four months' time to
dispose of the suit.
6. On an evaluation of the pleadings and materials on
OP(C) NO. 689 OF 2019
record, particularly Exts.P5 and P6 it can be gathered that
the Trial Court after analysing the pleadings and materials
on record arrived at the conclusion that the petitioner is
not entitled to an order of temporary injunction and his
only intention is to harass and vex the respondent.
7. Consequently, the Trial Court dismissed the
application with cost of Rs.3,000/-.
8. In the appeal, the Appellate Court, by the
impugned Ext.P6 judgment, confirmed the findings of the
Trial Court in Ext.P5 order and found that the petitioner
has not made out a prima facie case; there is no balance of
convenience in his favour and if an order of injunction is
granted, it would cause irreparable injury and hardship to
the respondent.
9. I have reconsidered the pleadings and materials on
record and the impugned Ext.P5 order and Ext.P6
judgment. I do not find any error or illegality in the
concurrent findings by the courts below in arriving at the
OP(C) NO. 689 OF 2019
conclusions in Exts.P5 and P6. Nonetheless, as the suit is
yet to be considered and the application was for a
temporary injunction, the imposition of cost was
unwarranted and unnecessary.
10. On an overall consideration and the fact that the
suit is of the year 2017, I am of the view that a quietus can
be given to the matter by directing the Trial Court to
consider and dispose of the suit itself, untrammelled by
the observations made in Exs.P5 and P6, which were
rendered only for the purpose of considering the interim
relief, and by setting aside the cost imposed by the two
Courts in Exts.P5 andP6.
In the result, 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) Exts.P5 and P6 are confirmed, except the cost
imposed by the two courts.
(ii) The Court of the Munsiff, Alathur is directed to
OP(C) NO. 689 OF 2019
consider and dispose of OS No.42/2017, in
accordance with law, untrammelled by any
observations made in Ext.P5 order and Ext.P6
judgment.
(iii) The imposition of costs in Exts.P5 and P6 is set
aside.
(v) As the suit is of the year 2017, the Trial Court is
directed to consider and dispose of OS No.42/2017,
in accordance with law, as expeditiously as possible,
at any rate within a period of four months from the
date of receipt of a certified copy of this judgment.
Sd/-
C.S.DIAS
JUDGE
rkc/17.01.23
OP(C) NO. 689 OF 2019
APPENDIX OF OP(C) 689/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.42/17 ON
THE FILE OF MUNSIFF'S COURT,ALATHUR.
EXHIBIT P2 TRUE COPY OF THE PARTITION DEED
NO.2417/1973 OF ALATHUR SRO.
EXHIBIT P3 TRUE COPY OF THE PETITION IN
I.A.NO.229/2017 IN O.S.NO.42/17 ON THE
FILE OF MUNSIFF'S COURT,ALATHUR.
EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT AND
SKETCH THEREIN DATED 14.02.2017 FILED IN
O.S.NO.42/2017 ON THE FILE OF MUNSIFF'S
COURT,ALATHUR.
EXHIBIT P5 TRUE COPY OF ORDER DATED 10.03.2017 PASSED
IN I.A.NO.229/2017 IN OS.N0.42/2017 ON THE
FILE OF MUNSIFF'S COURT,ALATHUR.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 31.08.2018
PASSED IN C.M.A.NO.21/2017 ON THE FILE OF
DISTRICT COURT-III,PALAKKAD.
RESPONDENT EXHIBITS
EXHIBIT R1 A TRUE COPY OF THE PARTITION DEED DATED
4.12.1973 AS DOCUMENT NO-2417/1973 OF
ALATHUR SUB REGISTRAR'S OFFICE.
EXHIBIT R1 B THE TRUE COPY OF THE REGISTERED GIFT DEED
AS DOCUMENT NO-1777 OF 1989
EXHIBIT R1 C TRUE COPY OF THE JUDGMENT IN O.S. NO-
36/2006 OF ALATHUR MUNSIFF'S COURT DATED
27.11.2006.
