Kerala High Court
K. Ramachandran vs Rosy on 11 March, 2020
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
OP(C).No.17 OF 2018(O)
AGAINST THE ORDER/JUDGMENT DATED 21/11/2017 IN I.A.1352/2017 IN OS
45/2017 OF MUNSIFF'S COURT,ATTINGAL
PETITIONER:
K. RAMACHANDRAN
S/O KRISHNAN, KRISHNA NILAYAM,
CHITTATTINKARA,AVANAVANCHERRY, ATTINGAL.
BY ADVS.
SRI.B.KRISHNA MANI
SMT.N.V.SANDHYA
RESPONDENTS:
1 ROSY
D/O SREENIVASAN, ROSY NIVAS,
AVANANVANCHERRY,ATTINGAL, THIRUVANANTHAPURAM. 695101.
2 SUMA
D/O SREENIVASAN,MEDAKKAD HOUSE,
POIKAMUKKU,VAMANAPURAM, THIRUVANANTHAPURAM. 695606
3 SHEEJA
D/O SREENIVASAN, RADHA MANDIRAM, SIVAGIRI, VARKALA,
THIRUVANANTHAPURAM. 695141.
4 BHUVANENDRAN
S/O SREENIVASAN, NAKRAMCODE VEEDU,
AVANAVANCHERRY,ATTINGAL, THIRUVANANTHAPURAM. 695101.
R1-4 BY ADV. SRI.S.RAMESH
R1 BY ADV. SRI.O.D.SIVADAS
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.03.2020, ALONG
WITH OP(C).68/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
OP(C).Nos.17 OF 2018(O) and 68 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
OP(C).No.68 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMA 6/2017 DATED 21-12-2018 OF
PRINCIPAL SUB COURT,ATTINGAL
PETITIONERS:
1 NAKRAMCODE SREEDEVI TEMPLE,
AVANAVANCHERY, CHITTANTTINKARA, ATTINGAL,
AVANAVANCHERY VILLAGE, (REPRESENTED BY 2ND
PLAINTIFF).
2 K.RAMACHANDRAN,
S/O.KRISHNAN, KRISHNA NILAYAM, CHITTATTINKARA,
AVANAVANCHERY, ATTINGAL.
3 SUSEELAN,
S/O.RAGHAVAN, DEVI NIVAS, CHITTANTTINKARA,
AVANAVANCHERY, ATTINGAL.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENTS:
1 ROSY,
D/O.SREENIVASAN, ROSY NIVAS, AVANANVANCHERRY,
ATTINGAL, THIRUVANANTHAPURAM- 695101.
2 SUMA,
D/O.SREENIVASAN, MEDAKKAD HOUSE, POIKAMUKKU,
VAMANAPURAM, THIRUVANANTHAPURAM- 695606.
3 SHEEJA,
D/O.SREENIVASAN, RADHA MANDIRAM, SIVAGIRI, VARKALA,
THIRUVANANTHAPURAM- 695141.
4 BHUVANENDRAN,
S/O.SREENIVASAN, NAKRAMCODE VEEDU, AVANAVANCHERRY,
ATTINGAL, THIRUVANANTHAPURAM- 695101.
5 PREMRAJ,
S/O.DHARMARAJAN, NANDANA, MAMOM, ATTTINGAL,
THIRUVANANTHAPURAM- 695101.
R1-4 BY ADV. SRI.S.RAMESH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.03.2020,
ALONG WITH OP(C).17/2018(O), THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
3
OP(C).Nos.17 OF 2018(O) and 68 of 2019
JUDGMENT
O.P.(C).No.68/2019 arises from an interlocutory application for injunction and O.P.(C).No.17/2018 arises from an application under Order 39 Rule 2A CPC alleging violation of the order of injunction.
2. The application for injunction was allowed by the trial court. However, the first appellate court interfered with the order of injunction and dismissed the application. The plaintiffs allege that the order of injunction was violated by the defendants, for which they moved an application under Order 39 Rule 2A CPC. The said application was dismissed by the trial court.
3. Heard Sri.B.Krishna Mani and Sri.S.Ramesh appearing for the respective parties.
4. The relief claimed in the suit reads thus:
"a) Pass a decree of Permanent Preventive Injunction restraining the defendants and their henchmen from causing obstruction to the day to day rituals in connection with the 1st plaintiff Nakramcode Devi Temple, Avanavanchery, Attingal and from causing obstruction to its worshipers and also from 4 OP(C).Nos.17 OF 2018(O) and 68 of 2019 committing any mischief's in this said temple and its properties.
b) Allow the cost of suit
c) Allow such other reliefs which deem fit and
proper."
5. The application for interim injunction filed by the petitioner as I.A.No.237/2017, for similar relief, was granted, as per order dated 17/03/2017. The order of injunction granted reads thus:
"Hence the respondents are restrained by a temporary injunction from causing any obstructions to the day today rituals in connection with the Nakramcode Sree Devi temple and from causing any obstructions to the punaprathishta varshikom and Aswathy maholsavom, till the disposal of the suit."
6. The defendants carried the same in C.M.A.No.6 of 2017. The learned Sub Judge, as per judgment dated 21/12/2018, allowed the appeal and dismissed the application for injunction. The learned Appellate Court was of the opinion that the suit filed without obtaining a leave in terms of Section 92 of the Code of Civil Procedure is not maintainable.
7. In O.P.(C).No.68/2019 filed challenging the said judgment, at the time of admission, on 08/01/2019, 5 OP(C).Nos.17 OF 2018(O) and 68 of 2019 this Court granted stay of operation of the judgment in C.M.A.No.6 of 2017. Resultantly, the interim order of injunction passed by the trial court on I.A.No.237/2017 continues. The said order is still in force.
8. The suit has been pending since the year 2017. The order of injunction granted by the trial court is in force since the institution of the suit. I am of the opinion that at this it stage it is not necessary to go into the merits of the rival contentions, including the question regarding the maintainability of the suit. It will be sufficient that the suit itself is tried and disposed of by the trial court expeditiously. The question regarding the maintainability of the suit can also be gone into by the trial court.
9. The order under challenge in O.P.No.17/2018 which is against the dismissal of an application under Order 39 Rule 2A is appealable under Order 43 Rule 1
(r) of the Code of Civil Procedure. The said original petition is not maintainable and is accordingly closed without prejudice to the rights of the petitioner.
O.P.(C).No.68/2019 is disposed of directing the trial 6 OP(C).Nos.17 OF 2018(O) and 68 of 2019 court to try and dispose of the suit, O.S.No.45/2017 of the Munsiff's Court, Attingal, as expeditiously as possible and at any rate, within a period of three months from the date of receipt of a copy of this judgment. I make it clear that the question of maintainability of the suit can also be raised and considered by the court at the time of disposal of the suit. The interim order passed by this Court shall continue to be in force till the disposal of the suit.
The learned counsel on both sides agree that they will co-operate for an expeditious disposal of the suit.
Sd/-
SATHISH NINAN JUDGE rsr 7 OP(C).Nos.17 OF 2018(O) and 68 of 2019 APPENDIX OF OP(C) 17/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION I.A NO.237/2017 DATED NIL IN O.S NO.45/2017 BEFORE THE MUNSIFF'S COURT, ATTINGAL. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 17.3.2017 IN I.A NO.237/2017 IN O.S NO.45/2017 BEFORE THE MUNSIFF'S COURT, ATTINGAL.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE WRIT PETITION WP(C) NO.5132/2015 DATED 18.12.2015 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 18.2.2015 IN WP(C) NO.5132/2015 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM. EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF WRIT PETITION WP(C) NO.12828/2016 DATED 29.3.2016 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 1.4.2016 IN WP(C) NO.12828/2016 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P7 TRUE COPY OF THE APPLICATION I.A NO.1352/2017 IN O.S NO.45/2017 BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED NIL. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 21.11.2017 IN I.A 1352/2017 IN O.S NO.45/2017 BEFORE THE MUNSIFF COURT, ATTINGAL.
EXHIBIT P9 TRUE COPY OF THE RELEVANT PORTION OF THE WP(C) NO.31968/2016 DATED 27.9.2016 BEFORE THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 3.10.2017 FILED BY THE PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, ATTINGAL. 8 OP(C).Nos.17 OF 2018(O) and 68 of 2019 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 NIL EXHIBIT R2 NIL EXHIBIT R3 NIL EXHIBIT R4 NIL EXHIBIT R4(a) TRUE COPY OF THE PLAINT IN OS NO.45/2017 FILED
BEFORE THE HON'BLE MUNSIFFS COURT, ATTINGAL 9 OP(C).Nos.17 OF 2018(O) and 68 of 2019 APPENDIX OF OP(C) 68/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT, O.S.NO.45/2017 BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED 25.01.2017.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 17.03.2017 IN I.A.NO.237/2017 IN O.S.NO.45/2017 BEFORE THE MUNSIFF'S COURT, ATTINGAL.
EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL, C.M.A.NO.6/2017 BEFORE THE SUB COURT, ATTINGAL DATED 28.03.2017.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 21.12.2018 IN C.M.A.NO.6/2017 BEFORE THE SUB COURT, ATTINGAL.
EXHIBIT P5 TRUE COPY OF THE PLAINT IN O.S.NO.54/2011 BEFORE THE SUB COURT, ATTINGAL DATED 14.02.2011.
EXHIBIT P6 TRUE COPY OF THE PLAINT, O.S.NO.349/2014 BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED NIL.
EXHIBIT P7 TRUE COPY OF THE REPORT DATED 23.05.2014 ISSUED BY THE VILLAGE OFFICER, AVANAVANCHERI ATTINGAL.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 09.05.2014 BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXHIBIT P9 TRUE COPY OF THE REPLY DATED 29.01.2015 HAS BEEN ISSUED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXHIBIT P10 TRUE COPY OF THE PLAINT, O.S.NO.144/07 BEFORE THE SUB COURT, ATTINGAL DATED 11.09.2007.
EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED 11.09.2007 IN O.S.NO.144/07 BEFORE THE SUB COURT, ATTINGAL.
10OP(C).Nos.17 OF 2018(O) and 68 of 2019 EXHIBIT P12 TRUE COPY OF THE ABSTRACT ESTIMATE FOR THE CONSTRUCTION OF NAKRAMCODE DEVI TEMPLE, ATTINGAL.
EXHIBIT P13 TRUE COPY OF THE FIRST INFORMATION REPORT DATED 04.02.2014.
EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS DATED 09.07.2015 ISSUED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. EXHIBIT P15 TRUE COPY OF THE COMPLAINT DATED 27.04.2015 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, ATTINGAL. EXHIBIT P16 TRUE COPY OF THE RELEVANT PORTION OF O.P(C)NO.17/2018 DATED 01.01.2018 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P17 TRUE COPY OF THE JUDGMENT DATED 18.02.2015 IN W.P(C) 5132/2015 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 01.04.2016 IN W.P(C) 12828/2016 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM. EXHIBIT P19 TRUE COPY OF THE RELEVANT PORTION OF THE W.P(C) 5132/2015 DATED 18.12.2015 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
EXHIBIT P20 TRUE COPY OF THE RELEVANT PORTION OF THE W.P(C) 12828/2016 DATED 29.03.2016 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 NIL EXHIBIT R1(a) TRUE COPY OF THE ORDER DATED 21.11.2017 IN
IA NOS. 866/17,867/17 AND 1352/17 IN OS NO.45/2017 OF THE MUNSIFF COURT, ATTINGAL EXHIBIT R1(b) TRUE COPY OF THE DEPOSITION OF THE 2ND PETITIONER DURING THE TIME OF CROSS- EXAMINATION WHEN EXT. R1(a) ORDER WAS PASSED 11 OP(C).Nos.17 OF 2018(O) and 68 of 2019 EXHIBIT R1(c) TRUE COPY OF THE ORDER DATED 2.3.2017 OF THE HON'BLE SUB COURT, ATTINGAL IN OS NO.54/2011 EXHIBIT R1(d) TRUE COPY OF THE ORDER DATED 24/1/2109 I NIA NOS.231/2017 AND 1207/2018 IN OS NO.54/2011 OF THE SUB COURT, ATTINGAL EXHIBIT R1(e) TRUE COPY OF THE ORDER DATED 11.7.2012 IN IA NO.441/2012 IN OS NO.54/2011 OF THE SUB COURT, ATTINGAL