IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 13251 of 2009(O) -------------------------- PETITIONER: --------------- SALEEM, S/O.ALIYARKUNJU, LEKHA NIVAS, SARADA GARDENS, NEERAMN KARA, NENMOM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.SAJU WAHAB RESPONDENT: --------------- AFSAL KHAN, S/O.ABDUL KARIM, KADAYIL VEEDU, PULLOOR MUKKU, KALLAMBALAM, MUDAVOOR VILLAGE. ADV. SRI.M.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WPC NO.13251/09) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF PLAINT IN O.S.NO.131/09 OF MUNSIFF COURT, ATTINGAL. EXT.P2: TRUE COPY OF I.A.NO.6264/09 FOR TEMPORARY INJUNCTION. EXT.P3: TRUE COPY OF ORDER DATED 26.3.2009 IN I.A.NO.624/09. EXT.P4: TRUE COPY OF AGREEMENT DATED 18.2.2009 BETWEEN PLAINTIFF AND DEFENDANT. EXT.P5: TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE DEFENDANT DATED 2.4.2009. EXT.P6: TRUE COPY OF LETTER DATED 15.1.2009 OF K.F.C. EXT.P7: TRUE COPY OF CERTIFICATE DATED 20.4.09 ISSUED BY KFC. EXT.P8: TRUE COPY OF BILL DATED 19.3.2009 FOR PURCHASE OF FURNITURE. EXT.P9: TRUE COPY OF INVITATION CARD FOR OPENING OF THE HOTEL SWADIYA GARDENS. EXT.P10: TRUE COPY OF INJUNCTION ORDER DATED 5.3.2009 IN I.A.NO.457/09. EXT.P11: TRUE COPY OF COMMISSION REPORT DATED 7.4.2009. EXT.P12: TRUE COPY OF ORDER DATED 28.4.2009 IN I.A.NO.645/09 OF LOWER APPELLATE COURT. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.13251 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 22nd May, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. Set aside Ext.P3 order of injunction in I.A.No.624/09 in O.S.No.131/09 of Munsiff's Court, Attingal and Ext.P12 order in I.A.No.645/09 in C.M.A.(unnumbered) of 2009 of Vacation Court (District Court), Trivandrum dated 28-04-2009. 2. Issue such other writ order or direction as may be necessary in the interest of justice. Petitioner is the defendant in a suit for injunction, namely, O.S.No.131/09 on the file of the Munsiff's Court, Attingal filed by the respondent. The respondent-plaintiff on the basis of Ext.P4 agreement, which is alleged to have been executed by the petitioner/defendant agreeing to the conducting of a hotel owned by him, by the plaintiff, as a licensee, for a sum of Rs.5 lakhs, filed the above suit contending that the terms of the agreement are violated by the petitioner and he is making attempts to enter into agreement with others for conducting the hotel after its renovation. An ex parte order of injunction in terms of the application moved by the plaintiff W.P.C.No.13251/09 - 2 - restraining the petitioner from opening and conducting the hotel business in the plaint schedule premises directly or through others in violation of Ext.P4 agreement, inducting strangers into the existing structures or making personal use of the structures or committing act of waste, was granted by the learned Munsiff. Petitioner entered appearance and pursuant thereto a commission through an Advocate was taken at the instance of the plaintiff. A prosecution petition was also filed by the plaintiff alleging that the ex parte order of injunction passed by the court was violated by the respondent. After the report of the Commissioner was filed before the court, for one reason or other as the I.A. was not heard and disposed before the vacation, the petitioner approached the vacation court challenging the ex parte order of injunction and moved an application for staying its operation. Vacation Judge (District Court), after hearing both sides, passed Ext.P12 order dismissing the application for staying the operation of the injunction. Questioning the correctness of that order, the petitioner has approached this court with the Writ Petition in which an interim order was passed staying the operation of Ext.P3 ex parte order of injunction granted by the trial court and Ext.P12 order passed by the vacation Judge. W.P.C.No.13251/09 - 3 - 2. I heard the counsel on both sides. Learned counsel for the petitioner contended that pursuant to the orders passed by this court, he has already commenced the hotel business in the plaint schedule premises. Learned counsel for the respondent disputed that statement submitting that the premises even now remain without any operation or business. So far as resolving the disputes emerging for consideration in the Writ Petition, examining the disputed facts involved over which no adjudication has been made by the court below, is not at all warranted and, further, any observation by this court on such issue is likely to cause miscarriage of justice as both sides have not been afforded reasonable opportunity to present their case before the court in which the application for injunction still remains to be considered and disposed on its merits. The operation of ex parte order of injunction passed by the learned Munsiff was found not liable to be stayed by the vacation court, in which an appeal was preferred, which found Ext.P4 prima facie genuine, is canvassed by the learned counsel for the respondent-plaintiff to impress me for dismissal of the Writ Petition moved under Article 227 of the Constitution as premature and not entertainable contending that the petitioner has alternate efficacious remedy of approaching the trial W.P.C.No.13251/09 - 4 - court and get the interim application disposed on merits. I am not impressed by the submission of the learned counsel for the respondent-plaintiff. The ex parte order of injunction passed by the trial court, it is true, was challenged by the petitioner by taking recourse to an appeal before the appellate court. But, that will in no way affect or impinge the right of the petitioner to challenge the said order of injunction passed ex parte, filing his objections and getting a disposal of the petition on merits. Observation made by the vacation Judge in Ext.P4 agreement, while disposing the interlocutory application filed in the appeal against the ex parte order and its refusal to stay the operation of the order cannot be given much significance. I do not want to express any opinion on the rival case presented by the parties in the proceedings since the disputed question involved as to whether the plaintiff is entitled to get an order of injunction remains to be considered by the learned Munsiff. Having regard to the submissions made by the counsel on both sides and taking note of the facts and circumstances involved, it appears, an expeditious disposal of the application for injunction, on merits, after hearing both sides, is essential to advance ends of justice. So much so, there will be a direction to the learned Munsiff to hear and dispose W.P.C.No.13251/09 - 5 - the application for injunction moved by the respondent-plaintiff, untrammelled by any of the observations made by the Vacation Judge, after affording reasonable opportunities to the counsel on both sides, within a period of three weeks from the date of receipt of this judgment. The appeal preferred by the petitioner before the Vacation Judge, if already numbered, shall stand struck off from the file, and if not numbered, treated as closed for all purposes. Stay of operation of the injunction order, passed by this court, shall remain in force till the disposal of the application for injunction by the learned Munsiff. The learned Munsiff is also directed to take note that if the petitioner has already started the hotel business in the premises, it is only on the basis of the stay order granted by this court and that will not by itself have any bearing in deciding the issues involved on the application on its merits. Subject to the above observations, the Writ Petition is disposed. Communicate a copy of this judgment to the court below forthwith. Parties are directed to appear before the court below on 2nd June, 2009. Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.13251/09 - 6 -