Kerala High Court
Naseema Beevi vs Shamna on 17 February, 2021
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque, C.S.Dias
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OP (FC).No.588 OF 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942
OP (FC).No.588 OF 2019
AGAINST THE ORDER/JUDGMENT IN IA 525/2019 IN OP 225/2019 OF
FAMILY COURT, ATTINGAL
PETITIONER/S:
1 NASEEMA BEEVI
AGED 70 YEARS
W/O.ABDUL AZIZ, SHAFI NIVAS, MARUTHUMMOODU,
PANTHALACODE.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-
695028.
2 ABDUL AZIZ
AGED 75 YEARS
S/O.MUHAMMED ABOOBACKER, SHAFI NIVAS,
MARUTHUMMOODU, PANTHALACODE.P.O,
THIRUVANANTHAPURAM-695 028.
BY ADV. SRI.S.SUNIL KUMAR (PALAKKAD)
RESPONDENT/S:
1 SHAMNA,
AGED 28 YEARS
W/O.SHAFI AZIZ, SHAFI NIVAS, MARUTHUMMOODU,
PANTHALACODE.P.O., NEDUMANGAD, THIRUVANANTHAPURAM-
695028.
2 SHAFI AZIZ,
S/O.ABDUL AZIZ, AGED 37 YEARS, SHAFI NIVAS,
MARUTHUMMOODU, PANTHALACODE.P.O., NEDUMANGAD,
THIRUVANANTHAPURAM-695028.
BY ADV. SMT.MARIAN G.M.THARAKAN
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
17.2.2021, THE COURT ON 17-02-2021 DELIVERED THE FOLLOWING:
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OP (FC).No.588 OF 2019
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
OP(FC) No.588 of 2019
======================
Dated this the 17th day of February, 2021.
JUDGMENT
A.MUHAMED MUSTAQUE , J.
This original petition was filed challenging the ex parte interim order in IA No.525/2019 in OP No.225/2019 on the files of the Family Court, Attingal. The first respondent herein is the petitioner before the Family Court. The impugned order reads thus:
No appearance.
Upon motion made into this court by Adv.Nagaroor Hassan Kunju Counsel for petitioner/s, upon reading the petition and affidavit of the said petitioner/s, upon perusal of records produced and hearing the petitioner/s, this court order that dated 13.2.2019, interim injunction restraining the respondents from evicting the petitioner from the petition schedule building otherwise than by due process of law until further orders.
Petitioner shall comply with order 39 R.3 CPC. For return of notice to 17.3.2019.
2. It appears that the petitioner thereafter filed Ext P11 application to vacate the interim order. The petitioner also approached this Court to permit her to 3 OP (FC).No.588 OF 2019 carry out necessary repairs of the house.
3. It is to be noted that what is impugned before this Court is only an ex parte interim injunction. It is always open for the petitioner to seek such modification or to vacate the interim order passed. We do not find any jurisdictional error committed by the Family Court in passing such an ex parte interim injunction. With liberty to the petitioner to raise all contentions before the Family Court in OP No.225/2019, we dispose of this original petition. However, we make it clear that if any application is pending to modify or vacate the interim order, they shall be disposed of without any delay, at any rate, within a period of six weeks after hearing both sides.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
C.S.DIAS
SKS/17.2.2021 JUDGE
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OP (FC).No.588 OF 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SURGICAL PATHOLOGY
REPORT ISSUED BY THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 3.8.2014 ISSUED BY THE ULIYAZHTHURA VILLAGE OFFICE.
EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 2.12.2014 ISSUED BY THE THIRUVANANTHAPURAM MUNICIPALITY. EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE UN-
COMPLETE RESIDENTIAL BUILDING OF THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER IN CMP NO.223/2018 IN M.C.NO.05/2018 OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL DATED 10.1.2018.
EXHIBIT P6 TRUE COPY OF THE COMMON ORDER IN CMP.NO.223/2018 AND CMP NO.951/2018 IN M.C.NO.05/2018 OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, ATTINGAL DATED 26.2.2018.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN OP(CRIMINAL) NO.249/2018 DATED 31.5.2018 OF HON'BLE HIGH COURT OF KERALA. EXHIBIT P8 TRUE COPY OF THE OP NO.225/2019 PENDING BEFORE THE FAMILY COURT, ATTINGAL. EXHIBIT P9 TRUE COPY OF THE I.A.NO.525/2019 IN OP.NO.225/2019 OF THE HON'BLE FAMILY COURT, ATTINGAL.
EXHIBIT P10 TRUE COPY OF THE TEMPORARY INJUNCTION ORDER IN I.A.NO.525/2019 IN OP.NO.225/2019 OF THE HON'BLE FAMILY COURT, ATTINGAL.
EXHIBIT P11 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER NO.1 IN I.A.NO.525/2019 IN OP.NO.225/2019 PENDING BEFORE THE FAMILY COURT, ATTINGAL.
5OP (FC).No.588 OF 2019 RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF MARRIAGE CERTIFICATE NO.876/2012 ISSUED ON 11/07/2012 EXHIBIT R1(b) TRUE COPY OF CERTIFICATE ISSUED BY THE HEADMISTRESS GOVERNMENT H.S.S. AYIROOPPARA.
EXHIBIT R1(c) TRUE COPY OF SALE DEED REGISTERED AS 2187/1979 AT THE KANYAKULANGARA SUB REGISTRAR OFFICE.
EXHIBIT R1(d) TRUE COPY OF NEWSPAPER REPORT SHOWING THAT THE 2ND RESPONDENT'S HUSBAND MARRIED FOR THE 3RD TIME AND DUPING WOMEN.
EXHIBIT R1(e) TRUE COPY OF COMMUNICATION ISSUED BY THE PULLAMALA MUSLIM JAMA-ATH AT NEDUMANGAD AS NO.117/16 DATED 08/10/2016 EXHIBIT R1(f) TRUE COPY OF SETTLEMENT DEED NO.4022 OF 2013 OF THE SRO POTHENCODE.
EXHIBIT R1(g) TRUE COPY OF THE F.I.R.NO.0863/2015 DATED 19/09/2015 REGISTERED AT THE POTHENCODE POLICE STATION, THIRUVANANTHAPURAM.
EXHIBIT R1(h) TRUE COPY OF OUT PATIENT RECORD DATED 06/06/2016 ISSUED BY THE COMMUNITY HEALTH CENTRE, KANYAKULANGARA.
EXHIBIT R1(i) TRUE COPY OF F.I.R.NO.0699 DATED 05/06/2016 REGISTERED AT THE POTHENCODE POLICE STATION, THIRUVANANTHAPURAM.
EXHIBIT R1(j) TRUECOPY OF THE ORDERS IN C.M.P.NO.552/16 IN M.C.NO.15/16, BEFORE THE JFCM-1 OF ATTINGAL EXHIBIT R1(k) TRUE COPY OF ORDERS DATED 18TH DECEMBER, 2017 PASSED IN M.C.NO.15/2016 WAS FILED BEFORE THE JFMC-I ATTINGAL EXHIBIT R1(l) TRUE COPY OF ORDERS PASSED IN CRIMINAL APPEAL NO.88/2016 IN M.C.N0.15/2016 EXHIBIT R1(m) TRUE COPY OF SCAN TAKEN AT THE TRAVANCORE HEALTHCARE PVT.LTD., TRIVANDRUM 6 OP (FC).No.588 OF 2019 EXHIBIT R1(n) TRUE COPY OF OUTPATIENT RECORDS ISSUED BY THE SAT HOSPITAL MEDICAL COLLEGE THIRUVANANTHAPURAM IN 2016 AND 2017 EXHIBIT R1(o) TRUE COPY OF TEST RESULTS AT REGIONAL CANCER CENTRE THIRUVANANTHAPURAM EXHIBIT R1(p) TRUE COPY OF COMMISSIONER'S REPORT IN I.A.NO.526/2019 IN O.P.NO.225/2019 EXHIBIT R1(q) TRUE COPY OF NEWSPAPER REPORT WHERE EVICION OF 5TH RESPONDENT IS PREVENTED BY WELL-WISHERS AND NEIGHBOURS (WITH TYPED COPY) EXHIBIT R1(r) TRUE COPY OF JUDGMENT IN O.P.NO.852/2015 DATD 17/11/2017.
EXHIBIT R1(s) TRUE COPY OF ENCUMBRANCE CERTIFICATE ISSUED BY THE SRO POTHENCODE EXHIBIT R1(t) TRUE COPY OF ORDERS DATED 25TH NOVEMBER 2015 IN M.C.NO.339/2015 AND ITS CMPs BEFORE THE FAMILY COURT, NEDUMANGAD EXHIBIT R1(u) TRUE COPY OF EXECUTION PETITIONS IN E.P.NO.41/2018 BEFORE THE FAMILY COURT ATTINGAL EXHIBIT R1(v) TRUE COPY SETTLEMENT DEED REGISTERED AS 5684/2008 AT THE POTHENCODE SUB REGISTRAR OFFICE.
EXHIBIT R1(w) TRUE COPY OF RESIDENCE CERTIFICATE ISSUED UZHIYATHURA VILLAGE OFFICER