Kerala High Court
T.A.Majeed vs K.G.Thomas on 31 March, 2023
OP(C) NO. 1454 OF 2015
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
OP(C) NO. 1454 OF 2015
AGAINST THE ORDER IN CMA 1/2015 IN O.S. 450/2014 OF THE
MUNSIFF COURT,KOCHI
PETITIONER/RESPONDENT IN CMA 1/2015 OF SUB COURT, KOCHI:
1 T.A.MAJEED
AGED 65 YEARS
S/O. ABDUL KHADER, HOUSE NO. 13/761, THAKYAVU ROAD,
KARUVELIPADY, KOCHI - 682 005.
2 T.M. RISHAD
S/O.T.A. MAJED, HOUSE NO. 13/761, THAKYAVU ROAD,
KARUVELIPADY, KOCHI - 682 005.
BY ADV SRI.ESM.KABEER
RESPONDENT/APPELANT IN CMA 1/2015:
K.G.THOMAS
S/O.K.P. GEORGE, KADAVIPARAMBIL HOUSE, MUNDAMVELI,
RAMESWARA VILLAGE, KOCHI TALUK.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1454 OF 2015
2
JUDGMENT
The original petition is filed challenging Ext.P8
judgment passed in CMA 1/2015 by the Court of the
Subordinate Judge, Kochi (Lower Appellate Court). The
petitioners are the respondents and the respondent is the
appellant in the appeal.
2. The concise background facts leading to Ext.P8
judgment are:
(i), The respondent had filed O.S No.450/2014 before
the Court of the Munsiff, Kochi (Trial Court), against the
petitioners for a decree of permanent prohibitory
injunction.
(ii) Along with the suit, an application was filed for
an order of temporary injunction. The application was
opposed by the respondents.
(iii) The Trial Court, by Ext.P6 order, dismissed the
OP(C) NO. 1454 OF 2015
application for temporary injunction.
(iv) Aggrieved by Ext.P6 order, the respondent filed
CMA 1/2015.
(v) By the impugned Ext.P8 judgment dated
10.6.2015, the lower Appellate Court set aside Ext.P6
order and allowed I.A No.2093/2014, by passing an order
of injunction restraining the petitioners from conducting
an ice-plaint named 'Simla Ice Plant'.
(vi) Ext.P8 judgment is ex facie illegal, unjust and
untenable. Hence, the original petition.
3. Although the original petition was filed as early
as on 22.6.2015, this Court has not admitted the original
petition and has not passed any interim order.
4. When the original petition came up for
consideration on 28.3.2023, this Court has called for a
report regarding the status and position of the suit.
5. It has been communicated that the suit is
OP(C) NO. 1454 OF 2015
pending consideration and is posted to 22.5.2023.
6. Heard; Sri.ESM Kabeer, the learned counsel
appearing for the petitioners, on admission.
7. Indisputably, Ext.P8 judgment was passed by
the lower Appellate Court on 10.6.2015. For the last 7½
years, the above order of injunction is continuing in
force against the petitioners.
8. The lower Appellate Court, after re-appreciating
the pleadings and materials on record, has specifically
arrived at the conclusion that the respondent had made
out a prima facie case, the balance of convenience is in
his favour and if an order of injunction is not passed, it
would cause irreparable loss and injury to the
respondent.
9. At this distance of time, I am not inclined to
take a divergent view than what is taken in Ext.P8
judgment, by exercising the power of superintendence of
this Court under Article 227 of the Constitution of India.
OP(C) NO. 1454 OF 2015
Nevertheless, I am of the view that a quietus can be
given to the original petition by keeping the order of
injunction in Ext.P8 judgment intact and directing the
trial court to consider and dispose of the suit itself within
a time frame untrammelled by any observations made in
Ext.P7 order and Ext.P8 judgment, which were made for
for the purpose of deciding the application for temporary
injunction.
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) Ext.P8 judgment is confirmed.
(ii) The Court of the Munsiff, Kochi, is directed to
consider and dispose of O.S 450/2014, in accordance
with law, as expeditiously as possible, at any rate within
a period of three months after the completion of pre-trial
steps.
OP(C) NO. 1454 OF 2015
(iii) The Trial Court is directed to dispose of the suit
untrammelled by any observations made in Ext.P7 order
and Ext.P8 judgment.
Sd/-
C.S.DIAS
ma/31.3.2023 JUDGE
OP(C) NO. 1454 OF 2015
APPENDIX OF OP(C) 1454/2015
PETITIONER EXHIBITS
EXHIBIT-P1-TRUE COPY OF THE SUIT IN O.S 450/2014 OF MUNSIFF
COURT, KOCHI.
EXHIBIT-P2-TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A
2093/2014 IN O.S 450/2014 OF ADDITIONAL MUNSIFF COURT,
KOCHI.
EXHIBIT-P3-TRUE COPY OF THE INJUNCTION ORDER IN I.A
1909/2014 IN O.S 418/2014 OF MUNSIFF COURT, KOCHI.
EXHIBIT-P4-TRUE COPY OF THE COMMISSION REPORT IN O.S
418/2014 OF MUNSIFF COURT, KOCHI.
EXHIBIT-P5-TRUE COPY OF THE LETTER DATED 11/12/2014 OF
COCHIN PORT TRUST.
EXHIBIT-P6-TRUE COPY OF THE ORDER DATED 02/12/2014 IN I.A
2093/2014 IN O.S 450/2014 OF MUNSIFF COURT, KOCHI.
EXHIBIT-P7-TRUE COPY OF THE C.M.A 1/2015 BEFORE SUB COURT,
KOCHI.
EXHIBIT-P8-TRUE COPY OF THE JUDGMENT IN C.M.A 1/2015 OF SUB
COURT, KOCHI.
