Kerala High Court
Omana Amma vs Thankamony Amma on 14 January, 2020
Equivalent citations: AIR 2021 (NOC) 74 (KER.), AIRONLINE 2020 KER 166
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941
FAO.No.198 OF 2019
AGAINST THE ORDER IN OS 44/2019 DATED 30-11-2019 OF
SUB COURT,ALAPPUZHA
APPELLANTS:
1 OMANA AMMA, AGED 68 YEARS, W/O (LATE) PADMANABHA
KURUP, RESIDING AT PADMANABHA SADANAM, KATTOOR MURI,
KALAVOOR VILLAGE, KALAVOOR P.O.AMBALAPUZHA TALUK,
ALAPPUZHA DISTRICT-688 522.
2 MAHESH P, AGED 41 YEARS, S/O (LATE) PADMANABHA KURUP,
RESIDING AT PADMANABHA SADANAM, KATTOOR MURI,
KALAVOOR VILLAGE, KALAVOOR P.O., AMBALAPUZHA TALUK,
ALAPPUZHA DISTRICT-688 522.
BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
RESPONDENTS:
1 THANKAMONY AMMA, AGED ABOUT 72 YEARS
W/O (LATE) N.VISWANATHA KURUP, RESIDING AT
MANORAMA HOUSE, KATTOOR MURI, KALAVOOR VILLAGE,
KALAVOOR P.O., AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT-
688 522.
2 RAJALEKSHMI, AGED 56 YEARS
D/O (LATE) N.VISWANATHA KURUP, RESIDING
AT MANORAMA HOUSE, KATTOOR MURI, KALAVOOR
VILLAGE, KALAVOOR P.O., AMBALAPUZHA TALUK, ALAPPUZHA
DISTRICT-688 522.
3 SIVARAJ, AGED 46 YEARS
S/O (LATE) N.VISWANATHA KURUP, RESIDING
AT MANORAMA HOUSE, KATTOOR MURI, KALAVOOR
VILLAGE, KALAVOOR P.O., AMBALAPUZHA TALUK, ALAPPUZHA
DISTRICT-688 522.
FAO.No.198 OF 2019
2
4 DHANALEKSHMI P, AGED 42 YEARS
D/O (LATE) PADAMANABHA KURUP, RESIDING AT
PADMANABHA SADANAM, KATTOOR MURI, KALAVOOR
VILLAGE, KALAVOOR P.O., AMBALAPUZHA TALUK,
ALAPPUZHA DISTRICT-688 522.
SRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
KUM.A.ARUNA
SMT.MAITREYI SACHIDANANDA HEGDE
KUM.THULASI K.RAJ
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION
ON 14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO.No.198 OF 2019
3
"CR"
JUDGMENT
The doctrine of lis pendens is derived from the latin maxim "ut pendent nihil innovetur", which postulates that during litigation nothing should be changed.
2. In the conceded backdrop of the doctrine, the appellants in this appeal call into question an order of the Trial Court disallowing their application to injunct the defendants in the suit from alienating the plaint schedule properties pending their prayer for its partition.
3. Ineluctuably, this Court has to thus examine whether the challenge in this appeal is necessary when the properties are admittedly modulated by the principles of lis pendens and if the impugned order would cause any legal prejudice to the appellants or affect their claims over them.
4. Plaintiffs 1 and 3 in a suit for partition have come up in this appeal challenging the order of the Trial Court declining to allow their application filed under Order XXXIX Rule 1 of the Code of Civil Procedure (for short 'the CPC'), whereby they had sought an injunction against the defendants from dealing with FAO.No.198 OF 2019 4 and alienating the plaint schedule properties.
5. The appellants say that even without appreciating the facts involved in its proper perspective, the Trial Court has hurried into a conclusion regarding the title of various items, particularly items 1 and 2 of the scheduled properties; and has thus declined an order of injunction. They assert that the Court has misdirected itself and has virtually prejudged the suit itself; and therefore, pray that the impugned order be set aside and that the defendants/respondents be injuncted from dealing with the plaint schedule properties until the suit is disposed of.
6. Sri.P.B.Krishnan, learned counsel appearing for the appellants, in addition to the above, submits that the nature of the conclusions and observations in the order impugned would clearly indicate that the Trial Court has virtually decided the suit itself and has frustrated his clients' rights over the plaint schedule properties, by entering into findings which were completely unwarranted at this stage. He says that all that the court below had to consider whether balance of convenience was in his client's favour in having sought for an interim injunction against the defendants from alienating the properties involved, which he says are six in number. The FAO.No.198 OF 2019 5 learned counsel, therefore, prays that this appeal be allowed and an order of injunction be issued against the respondents, as prayed for by his clients.
7. In response, Sri.Kaleeswaram Raj, the learned counsel appearing for the respondents/defendants, submits that, it is evident from the impugned order, as regards plaint schedule item Nos.1 and 2 are concerned, that they were the subject matter of a Rent Control Petition, which had traversed all the way to the Hon'ble Supreme Court, finally culminating in the judgment reported in Thankamony Amma v. Omana Amma [2019 (4) KLT 361 (SC)]. He says that the findings of the Hon'ble Supreme Court, as is manifest from the said judgment, that plaint schedule item Nos.1 and 2 are exclusively owned by his clients and therefore that their possession or ownership cannot be disturbed by the plaintiffs in the suit are merely on the strength of a claim for partition. He says that the court below has, therefore, rightly assessed the situation and declined the application filed by the appellants under Order XXXIX Rule 1 of the CPC, citing valid and cogent reasons as have been recorded therein. He then adds that consequent to the judgment of the Hon'ble Supreme Court, his clients are in FAO.No.198 OF 2019 6 full possession of the property and that these aspects have also been properly noticed by the court below.
8. I have considered the afore submissions made on behalf of the parties and have also examined the order which is impugned in this appeal.
9. It is indubitable, as is conceded by the parties, that the suit has been laid on file by the plaintiffs seeking partition of plaint schedule item Nos.1 to 6. Going by the well established principles under Section 52 of the Transfer of Property Act and the provisions of the Partition Act, it is without doubt that when a suit is laid for partition over certain properties, the principles of lis pendens come into operation; and any subsequent transaction by any of the parties would be of no consequence and would not affect the rights of the others. In that legal perspective, I really fail to understand why the plaintiffs should have moved an application under Order XXXIX Rule 1 of the CPC, virtually seeking restriction on the right of alienation over the same by the defendants and the answer to this becomes perceptible from the submissions of Sri.P.B.Krishnan, who concedes that this application was filed before the delivery of the plaint schedule item Nos.1 and 2 had FAO.No.198 OF 2019 7 been effected in terms of the judgment of the Hon'ble Supreme Court.
10. That said, the decisive question is whether it would cause any prejudice to any of the parties to the suit on account of the application for interim injunction, filed by the plaintiffs, being dismissed by the court below. The answer to this can only be an affirmative 'no' because, whatever be the nature of the allegations the parties may have against each other, as long as the partition suit is pending, the principle of lis pendens applies in its full force and therefore, any transactions done or entered into by the parties in the midst of such proceedings would have no effect on the other.
11. Axiomatically, the sole surviving aspect is whether the order impugned has prejudged the issues in the suit, as has been alleged by Sri.P.B.Krishnan and as to whether the findings therein should be allowed to continue to be in force, lest it interferes with proper disposal of the suit itself.
12. I have scanned through the observations and findings in the order impugned and am of the view that, at the best, they can only be seen to be preliminary or prima facie in its FAO.No.198 OF 2019 8 ambit; which have been recorded by the court below solely for the purpose of disposal of the I.A and no other. I am certain that the observations in the impugned order cannot and will not bridle or influence the Trial Court while disposing of the suit, since what has been now recorded by it are only based on certain empirical and preliminary inputs and not on the evidence or the materials to be marked during trial.
13. Consequently, I am of the view that it will not be necessary for this Court to consider the validity of the impugned order, particularly because the parties are ad idem that the properties are protected under the principle of lis pendens, as per Section 52 of the Transfer of Property Act and that questions relating to ownership, possession and such other will have to be decided finally by the Trial Court, after following due procedure, in the suit itself.
Resultantly, I close this appeal with a clarificatory direction to the court below to dispose of the suit untrammeled by any of the observations or conclusions in the impugned order; and consequentially, leave liberty to all the parties to pursue their remedies and contentions available to them in law without being in any manner affected by any of the said FAO.No.198 OF 2019 9 observations.
I further make it clear that since I have not considered any of the contentions of either sides on its merits, it being completely unnecessary for this Court to do so at this stage.
After I dictated this judgment, the learned counsel on both sides prayed that the Trial Court be directed to dispose of the suit itself within a time frame to be fixed by this Court. Even though I notice that the suit was filed in the year 2019, the disputes between the parties appear to go back several years and I am, therefore of the view that every effort should be taken by the Trial Court to dispose of the suit finally before the Civil Courts close for summer recess in the year 2021.
Considering the particular circumstances involved in this appeal, I make no order as to costs, thus leaving the parties to suffer their respective costs.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE