Raji Kumar vs Dileep Kumar
2023 Latest Caselaw 3178 Ker

Citation : 2023 Latest Caselaw 3178 Ker
Judgement Date : 23 March, 2023

Kerala High Court

Raji Kumar vs Dileep Kumar on 23 March, 2023

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
   THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                      OP(C) NO. 1363 OF 2022
          IN CMA 10/2020 OF SUB COURT, KARUNAGAPPALLY
PETITIONER:

          RAJI KUMAR
          AGED 52 YEARS
          S/O. SIVASANKARA PILLAI, RAJADHANI VEEDU,
          PALLISSERICKAL P.O., PALLISSERICKAL MURI,
          SASTHAMCOTTA VILLAGE, KUNNATHUR TALUK.,
          PIN - 690521

          BY ADV SINDHU SANTHALINGAM



RESPONDENT:

          DILEEP KUMAR
          AGED 63 YEARS
          S/O. MADHAVAN PILLAI, THOTTATHIL VADAKKE MADAM, PADA
          SOUTH, KARUNAGAPPALLY P.O.,
          KARUNAGAPPALLY VILLAGE, PIN - 690518

          BY ADVS.     SADCHITH P KURUP
                       C.P.ANIL RAJ(K/872/2007)
                       ANCY RUBENS(K/1320/2022)



      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No.1363/2022

                                      :2:




                   Dated this the 23rd day of March, 2023

                           JUDGMENT

The original petition is filed challenging Ext P3

judgment passed in C.M.A.No.10/2022 by the Court of

the Subordinate Judge, Karunagappally (lower Appellate

Court). The petitioner is the respondent and the

respondent is the appellant in the appeal.

2. The short and relevant background facts

leading to Ext P3 judgment are:

(i) The respondent filed O.S.No.193/2020(Ext P1) before the Court of the Munsiff, Karunagappally(Trial Court) against the petitioner, for a decree of permanent prohibitory injunction.

(ii) Along with the suit, the respondent filed I.A.No.1/2020(Ext P2) under Order 39 Rule 1 of the Code of Civil Procedure, 1908, for an order of temporary injunction.

O.P.(C) No.1363/2022

(iii) The Trial Court, by Ext P2 order, dismissed I.A.No.1/2020.

(iv) Aggrieved by Ext P2 order, the respondent filed C.M.A.No.10/2020(Ext P3) before the lower Appellate Court.

(v) The lower Appellate Court, by the impugned Ext P3 judgment, allowed the appeal and set aside Ext P2 order.

(vi) Ext P3 judgment is ex facie illegal and wrong.

Hence, the original petition.

3. Heard; Smt. Sindhu Santhalingam, the learned

counsel appearing for the petitioner and Sri.

Sadchith.P.Kurup, the learned counsel appearing for the

respondent.

4. When the original petition came up for

consideration on 16.03.2023, this Court had called for a

report from the Trial Court, to ascertain the status and

reasonable time period required to dispose of the suit. O.P.(C) No.1363/2022

5. Pursuant to the above order, the learned

Munsiff, by communication dated 08.03.2023, has

informed this Court that the suit stands posted to

08.06.2023 for framing of issues. The learned Munsiff is

holding additional charge of the said court. She requires

six months' time to dispose of the suit.

6. On an appreciation of the pleadings and

materials on record, it is seen that Ext P3 judgment was

passed on 30.06.2022 by the lower Appellate Court,

restraining the petitioner by an order of temporary

injunction from installing his name boards, from

encroaching any portion of the plaint schedule property

and from parking his car in such a way causing

obstruction to the free passage of the respondent and his

family members till the disposal of the suit.

7. The lower Appellate Court, after appreciating

the pleadings and materials on record, has found that the

respondent has made out a prima facie case, the balance O.P.(C) No.1363/2022

of convenience rests in his favour and, if an order of

temporary injunction is not granted, it would cause

irreparable loss and injury to the respondent.

8. In the above conspectus, I am not inclined to

interfere with Ext P3 judgment, in exercise of the power

of superintendence of this Court under Article 227 of the

Constitution of India, especially when the lower

Appellate Court has cogently found that, if an order of

temporary prohibitory injunction is not granted, it will

cause irreparable loss and injury to the respondent,

which order is in force for last nearly one year.

Nonetheless, I am of the view that a quietus can be given

to the litigation, by keeping Ext P3 judgment intact and

by directing the Trial Court to dispose of the suit,

untrammelled by any observations made in Ext P2

order and P3 judgment, which would do complete justice

to both sides.

O.P.(C) No.1363/2022

Resultantly, I dispose of the original petition as

follows:

(i) Ext.P3 judgment is confirmed.

(ii) The Trial Court is directed to consider and dispose of O.S.No.193/2020, in accordance with law and as expeditiously as possible, at any rate, within a period of three months after the completion of the pre-trial steps, untrammelled by any observations made in Ext P2 order and Ext P3 judgment, which were made for the limited purpose of considering the application for temporary injunction.

Sd/-


                                           C.S.DIAS,JUDGE

DST/23.03.2023                                     //True copy/

                                                                    P.A.To Judge
 O.P.(C) No.1363/2022






                              APPENDIX


PETITIONER EXHIBITS:


EXHIBIT.P1             PLAINT NUMBERED AS O.S. NO. 193 OF 2020 ON