Kerala High Court
Prasannan vs Sreelatha. L on 9 August, 2023
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
OP(C) NO. 1559 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 447/2022 OF MUNSIFF
COURT,KAYAMKULAM
CMA 23/2023 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA
PETITIONER/S:
1 PRASANNAN
AGED 51 YEARS
S/O THANKAPPAN,KARUNYAM, ERUVA WEST MURI, PATHIYOOR
VILLAGE, KARTHIKAPALLY TALUK, ALAPUZHA DISTRICT., PIN -
690572
2 SUKUMARI
AGED 75 YEARS
W/O THANKAPPAN,ANANDHA BHAVANAM, ERUVA WEST MURI,
PATHIYOOR VILLAGE, KARTHIKAPALLY TALUK, ALAPUZHA
DISTRICT., PIN - 690572
3 KATHAL
AGED 19 YEARS
S/O PRASANNAN,KARUNYAM, ERUVA WEST MURI, PATHIYOOR
VILLAGE, KARTHIKAPALLY TALUK, ALAPUZHA DISTRICT., PIN -
690572
BY ADVS.
G.BHAGAVAT SINGH
KELU BHAGAVAT
RESPONDENT/S:
1 SREELATHA. L
AGED 47 YEARS
W/O UDAYA KUMAR,AISHWARYA, ERUVA WEST MURI, PATHIYOOR
VILLAGE, KARTHIKAPALLY TALUK., PIN - 690572
2 NITHYA S
AGED 25 YEARS
D/O SREELATHA.L ,KRISHNA NIVAS, PRAYAR SOUTH MURI,
CLAPPANA VILLAGE, ALUMPEEDIKA, KARUNAGAPALLY TALUK FROM
AISHWARYA, ERUVA WEST MURI, PATHIYOOR VILLAGE, KARTHIKA
OP(C) NO. 1559 OF 2023
2
PALLY TALUK., PIN - 690572
3 NITHIN U
AGED 21 YEARS
S/O LATE UDAYA KUMAR,AISHWARYA, ERUVA WEST MURI,
PATHIYOOR VILLAGE, KARTHIKAPALLY TALUK., PIN -
690572
BY ADVS.
C.S.MANILAL
S.NIDHEESH(K/1061/2007)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1559 OF 2023
3
JUDGMENT
The original petition is filed challenging Ext.P5 order passed by the Court of the Additional District Judge-I, Mavelikkara (lower Appellate Court) in IA No.2/2023 in CMA 23/2023.
2. The brief relevant facts for the determination of the original petition are:
(i) The petitioners are the defendants in OS No.447/2022 of the Court of the Munsiff, Kayamkulam (Trial Court), which was filed by the respondents, for declaration and other consequential reliefs. Along with the suit the respondents had also filed IA No.1/2022, for an order of temporary injunction.
(ii) The Trial Court, by Ext.P4 order, partly allowed I.A.No.1/2022 by restraining the 1st petitioner from alienating the plaint 'C to F' schedule properties and restraining the petitioners from obstructing the peaceful possession and OP(C) NO. 1559 OF 2023 4 residence of the respondents in plaint 'A' schedule property.
(iii) Aggrieved by Ext.P4 order, the petitioners have preferred CMA No.26/2023 and the respondents have preferred CMA No.23/2023 before the lower Appellate Court.
(iv) Along with CMA No.23/2023, the respondents had filed IA No.2/2023 for a temporary order of injunction, to restrain the petitioners from carrying out any construction in plaint 'C to F' schedule properties.
(v) The lower Appellate Court, by the impugned Ext.P5 order, without affording the petitioners an opportunity of being heard, initially passed an ad-interim order of injunction and later confirmed the order by Ext.P5 order, restraining the petitioners from carrying out any constructions in the plaint 'C to F' schedule OP(C) NO. 1559 OF 2023 5 properties.
(vi) Ext.P5 is ex-facie illegal and unsustainable in law.
Hence, the original petition.
3. Heard; Sri.G.Bhagavat Singh, the learned Counsel appearing for the petitioners and Sri.C.S.Manilal, the learned Counsel appearing for the respondents.
4. The point is whether there is any illegality in Ext.P5 order.
5. Indisputably, CMA Nos.23 and 26/2023, challenging Ext.P4 order, are pending consideration before the lower Appellate Court.
6. The lower Appellate Court had initially passed an ad-interim order in IA No.2/2023 in CMA No.23/2023, and made it absolute by Ext.P5 order.
7. Both sides claim that, they are in possession of the property, which is crux of the issue. OP(C) NO. 1559 OF 2023 6
8. Admittedly, Ext.P5 order has been passed on the basis of the rival affidavits during the pendency of the appeals.
9. In the above conspectus, I am of the definite view that a quietus can be given to the present original petition by directing the lower Appellate Court to consider and dispose of the appeals itself, untrammeled by any observations made in Ext.P5 order, which in turn would do complete justice to both sides.
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) The lower Appellate Court is directed to consider and dispose of CMA Nos.23/2023 and 26/2023, in accordance with law and as expeditiously as possible, at any rate on or before 30.09.2023, untrammeled by OP(C) NO. 1559 OF 2023 7 any observations made in Ext.P5 order.
(ii) It is made clear that this Court has not expressed anything on the merits of Ext.P5 order or on the appeals.
(iii) Until such time the appeals are disposed of, Ext.P5 order shall continue to remain in force.
Sd/-
C.S.DIAS JUDGE rkc/09.08.23 OP(C) NO. 1559 OF 2023 8 APPENDIX OF OP(C) 1559/2023 PETITIONER EXHIBITS Exhibit P-1 COPY OF THE C.M.A.NO.23 OF 2023 ON THE FILE OF ADDITIONAL DISTRICT COURT I MAVELIKARA DATED 20.05.2023 Exhibit P-2 COPY OF THE O.S.NO.447 OF 2022 ON THE FILE OF MUNSIFF COURT, KAYAMKULAM DATED 17.12.2022.
Exhibit P-3 COPY OF THE I.A.NO.1 OF 2022 IN O.S.NO.447/2022 DATED 17/12/2022. Exhibit P- 4 COPY OF THE ORDER IN I.A.NO.1/2022 IN O.S.NO.447/2022 DATED 05.04.2023 OF THE MUNSIFF COURT, KAYAMKULAM.
Exhibit P-5 COPY OF THE ORDER IN I.A.NO.2/2023 IN C.M.A.NO.23/2023 DATED 24.06.2023. Exhibit P-6 COPY OF THE SETTLEMENT DEED NO.1130/1/2022 OF KAREELAKULANGARA S.R.O EXECUTED BY LATE UDAYA KUMAR DATED 16.09.2022 Exhibit P-7 COPY OF THE LAND TAX RECEIPT DATED 29.09.2022 ISSUED BY THE VILLAGE OFFICER, PATHIYOOR VILLAGE.
Exhibit P-8 COPY OF THE LAND TAX RECEIPT DATED 27.05.2023 ISSUED BY THE VILLAGE OFFICER, PATHIYOOR VILLAGE.
Exhibit P- 9 COPY OF THE O.P NO.1336/2022 BEFORE THE FAMILY COURT MAVELIKARA DATED 31.08.2022. Exhibit P-10 COPY OF THE PHOTOGRAPH OF THE BUILDING UNDER CONSTRUCTION.
Exhibit P-11 COPY OF THE PHOTOGRAPH OF THE B SCHEDULE PATHWAY.