Kerala High Court
O.C.Sadanandan vs Anne Evelyn Sukumaran on 3 February, 2010
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 34 of 2010()
1. O.C.SADANANDAN, S/O.LATE PYTHAL,
... Petitioner
2. VIMALA BAI, W/O.SADANANDAN,
3. T.BEERAN, S/O.AYAMUTTY, AGED 69 YEARS,
Vs
1. ANNE EVELYN SUKUMARAN,
... Respondent
For Petitioner :SRI.C.S.MANU
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :03/02/2010
O R D E R
V. RAMKUMAR , J.
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Tr.P.(C) No. 34 of 2010
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Dated this the 3rd day of February, 2010.
ORDER
The defendants in O.S. No. 177 of 2009 on the file of the Munsiff's Court, Kalpetta are the petitioners in this application for transfer. The said suit was filed by the respondent herein seeking a decree of prohibitory injunction restraining the petitioners herein and their men from carrying on blasting operations in the plaint B schedule properties using explosives causing noise pollution and thereby causing nuisance to the plaintiff and also causing damage to the plaint A schedule property belonging to the plaintiff. Along with the suit, the respondent also filed I.A. No.706 of 2009 seeking an interim injunction in terms of the prayer in the plaint. An ad-interim order of injunction was passed on 29.08.2009 and the application for temporary injunction was posted to 07.09.2009 for the appearance of the petitioners and then to 01.10.2009 for Tr.P.C. No. 34/2010 : 2 : filing their counter. After they entered appearance, the petitioners through their counsel represented to the court that the description of the plaint schedule property is erroneous thereby prompting the plaintiff to file I.A. Nos. 765 and 766 of 2009 for amendment of the schedules of both the plaint as well as the application for temporary injunction. The said applications were posted to 25.09.2009 on which date the petitioners herein claim to have filed counter affidavits to the same. The amendment petitions were then adjourned to 26.09.2009 on which day the petitioners' counsel was present and according to them, the plaintiff was not ready. The case was then posted to 29.09.2009 on which day after hearing both sides, the amendment applications were allowed as per Ext.P2 order. On 01.10.2009, the suit along with the injunction application came up for hearing and was posted to 14.10.2009 for filing written statement as well as counter. According to the petitioners, on 03.10.2009, after allowing Tr.P.C. No. 34/2010 : 3 : the amendment applications, the learned Munsiff insisted on the petitioners to file a counter to the injunction application on or before 08.10.2009 itself. They would contend that even before the amendment was carried out, the learned Munsiff insisted on the petitioners to file counter affidavit to the application for injunction. It is the case of the petitioners that sensing that the learned Munsiff was taking an unreasonable attitude, they moved the District Court , Kalpetta for a transfer of the case from the Munsiff's Court by filing T.O.P. No. 145 of 2009 and the learned District Judge as per Annexure -4 order dated 08.01.2010 dismissed the application for transfer. Hence, this writ petition.
2. The learned counsel for the petitioners reiterated the apprehensions expressed by the petitioners. According to him, the learned Munsiff was showing undue haste in disposing of the application for temporary injunction.
3. I cannot agree with the above submissions. Merely Tr.P.C. No. 34/2010 : 4 : because the learned Munsiff insisted on the petitioners to file counter affidavit to the application for temporary injunction on an anterior date, it cannot be assumed that the learned Munsiff was taking a partisan attitude in the matter. The interim injunction granted was of some moment to the petitioners and it was at the instance of the counsel for the petitioners that the plaintiff filed the applications to amend the plaint schedule as well as the schedule in the application for temporary injunction. Since the interim injunction if granted would be a matter of some moment to the petitioners herein, the Munsiff might have thought of hearing the matter at an early date. At any rate, the fact remains that the petitioners did not file the written statement as well as the counter even on 14.10.2009. They filed their counter on a date subsequent to that. As on today, I.A. No. 766 of 2009 has not been finally heard and no final orders have been passed. I am not inclined to accept the petitioners' contention that the learned Munsiff Tr.P.C. No. 34/2010 : 5 : was acting in a biased manner or that he was actuated by extraneous considerations. Instead of filing a counter to the application for temporary injunction and inviting the court to pass final orders after hearing the petitioners as well, they rushed to the District Court and thereafter to this Court seeking a transfer of the case from the court of the learned Munsiff.
The petitioners may hasten to have the application for temporary injunction finally heard. I am sure that the learned Munsiff will give the petitioners an opportunity of being heard and pass final order in accordance with law. Reserving this right of the petitioners, this writ petition is dismissed.
Dated this the 3rd day of February, 2010.
V. RAMKUMAR, JUDGE.
rv Tr.P.C. No. 34/2010 : 6 :