Kerala High Court
Mr. A.M.Kharim vs Mr. E.M.Abdul Salam on 14 July, 2021
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
OP(C) NO. 966 OF 2021
OS 1448/2019 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM
PETITIONER/S:
1 MR. A.M.KHARIM,
AGED 69 YEARS
S/O.A.K.MOIDEEN HAJI, ANJIKKATHU HOUSE, COCHIN
UNIVERSITY P.O., KOCHI 682 022
2 MR. A.K. SAHAD
AGED 38 YEARS
S/O.A.K. KHARIM, ANJIKKATHU HOUSE, COCHIN
UNIVERSITY P.O., KOCHI 682 022
3 MR. A.M. ABOOBACKER
AGED 65 YEARS
S/O.A.K.MOIDEEN HAJI, ANJIKKATHU HOUSE, COCHIN
UNIVERSITY P.O., KOCHI 682 021
BY ADVS.
BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SHRI.P.U.VINOD KUMAR
SMT.ARYA RAGHUNATH
SMT.VAISAKHI V.
SRI.T.M.MUHAMMED MUSTHAQ
SHRI.MOHAMED HISHAM P
RESPONDENT/S:
1 MR. E.M.ABDUL SALAM,
AGED ABOUT 59 YEARS, S/O.E.K.MOHAMMED,
ELAVAKKATTU HOUSE, NEAR MODEL ENGINEERING
COLLEGE, THRIKKAKARA P.O., KOCHI 682 021
2 MRS. FATHIMA SALAM
AGED 50 YEARS
W/O.E.M. ABDUL SALAM, ELAVAKKATTU HOUSE, NEAR
MODEL ENGINEERING COLLEGE, THRIKKAKARA P.O.,
KOCHI 682 021
3 MR. SHIFAZ ABDUL SALAM
AGED 31 YEARS
S/O.E.M. ABDUL SALAM, ELAVAKKATTU HOUSE, NEAR
MODEL ENGINEERING COLLEGE, THRIKKAKARA P.O.,
KOCHI 682 021
4 MR. FARHAN ABDUL SALAM
O.P.(C) No.966 of 2021
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AGED 26 YEARS
S/O.E.M. ABDUL SALAM, ELAVAKKATTU HOUSE, NEAR
MODEL ENGINEERING COLLEGE, THRIKKAKARA P.O.,
KOCHI 682 021
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.966 of 2021
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JUDGMENT
Dated this the 14th day of July, 2021 The challenge in this original petition is against Ext.P6 order by which the trial court allowed I.A.No.8143 of 2019 in O.S.No.1448 of 2019 filed by the petitioner and granted interim prohibitory injunction. By the same order, the court disallowed I.A.No.2 of 2020, wherein the petitioner had sought an interim mandatory injunction. The challenge in this original petition is against the rejection of the prayer for interim mandatory injunction.
2. When the matter was taken up for consideration, learned Counsel for the respondents raised objection as to the maintainability of the original petition. It is submitted that the respondents have preferred CMA No.32 of 2021 before the District Court, Ernakulam against grant of interim prohibitory O.P.(C) No.966 of 2021 -4- injunction and if this original petition is entertained and orders passed, that will prejudice the respondents, despite having resorted to the proper remedy under Order 43 Rule 1 CPC.
3. Learned Counsel for the petitioners submitted that the petitioners may also be permitted to avail the appellate remedy under Order 43 Rule 1 CPC.
Accordingly, the original petition is dismissed, reserving the petitioners' liberty to avail the appellate remedy. If an appeal is filed within three weeks, the period during which this original petition was pending before this Court shall be excluded, while computing the limitation.
Sd/-
V.G.ARUN JUDGE Scl/14.07.2021 O.P.(C) No.966 of 2021 -5- APPENDIX OF OP(C) 966/2021 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.1448/2019 ON THE FILE OF THE HON'BLE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM.
EXHIBIT P2 A TRUE COPY OF I.A.NO.8143/2019 IN O.S.NO.1448/2019 ON THE FILE OF THE HON'BLE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM FOR TEMPORARY PROHIBITORY INJUNCTION.
EXHIBIT P2 (A) A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS/DEFENDANTS IN I.A.NO.8143/2019 IN O.S.NO.1448/2019 ON THE FILE OF THE HON'BLE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM EXHIBIT P3 A TRUE COPY OF I.A.NO.2/2020 IN O.S.NO.1448/2019 ON THE FILE OF THE HON'BLE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM FOR MANDATORY INJUNCTION. EXHIBIT P3 (A) A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS/DEFENDANTS IN I.A.NO.2/2020 IN O.S.NO.1448/2019 ON THE FILE OF THE HON'BLE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM EXHIBIT P4 A TRUE COPY OF ADVOCATE COMMISSIONER INSPECTION REPORT DATED 31.1.2020 IN I.A.NO.8144/2019 ALONG WITH THE DOCUMENTS PRODUCED BY HIM.
EXHIBIT P5 A TRUE COPY OF ADVOCATE COMMISSIONER FLIED THE REPORT DATED 18.1.2021 IN I.A.NO.5/2020 ALONG WITH THE DOCUMENTS PRODUCED BY HIM.
EXHIBIT P6 A TRUE COPY OF THE COMMON ORDER DATED 27.3.2021 IN I.A.2/2020 IN O.S.NO.1448/2019 ON THE FILE OF THE HON'BLE 2ND ADDITIONAL MUNSIFF COURT, ERNAKULAM