IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 FAO.No. 256 of 2009() --------------------- AGAINST THE ORDER DATED 26/09/2009 IN IA.4572/2008 IN OS.890/2008 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT IN FAO-RESPONDENT NO.2 IN IA.DEFENDANT NO.2: ----------------------------------------------------------------------------------------- MAJO T.J., S/O.THONATH JOHNY, FRANCIS LANE, KANDASSAMKADAVU, KARAMUKKU VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 3 IN IA-PLAINTIFF : --------------------------------------------------------------- 1. JOMOL JOHN, D/O.THONATH JOHNY & W/O.AJAY LAZAR, EAKALATHUR HOUSE, KARAMUKKU VILLAGE, THRISSUR TALUK. 2. P.R.MARTHA, W/O.THONATH JOHNY, FRANCIS LANE, KANDASSAMKADAVU, KARAMUKKU VILLAGE. 3. RIJO.T.J., W/O.SIBIN K.THOMAS, KANDANIKULATHIL HOUSE, ILLIKAD DESOM, KATTOOR P.O., DO. DO. ADV. SRI.N.M.MADHU FOR R1 SRI.P.P.HARRIS FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/10/2009, ALONG WITH FAO NO. 257 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.Nos. 256 & 257 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2009 JUDGMENT Joseph, J. These appeals arise out of a common order and therefore we are disposing of these appeals by a common judgment. The appellant in both these cases is the second defendant in a suit filed by the first respondent herein claiming partition. The appellant, first respondent and third respondent are children of late Johny and the second respondent. It is the case of the first respondent that her father died intestate and hence the suit for partition. 2. The case of the appellant, as also it would appear the case of respondents 2 and 3 on the other hand, is that Johny died leaving behind him a registered Will, thus averting any claim for partition. F.A.O.Nos. 256 & 257 of 2009 2 3. The first respondent filed two applications. One application was filed claiming injunction against the appellant constructing a building in one of the plaint schedule items. Injunction was also sought against alienation of the property as also encumbering the properties etc. Yet another application was filed seeking appointment of a Receiver under Order 40 Rule 1 C.P.C. There are 16 items scheduled to the plaint. One item is a petrol pump. 4. We went through the common order passed. As far as the order passed in the application appointing a Receiver is concerned, it was opposed by filing counter affidavits. Of course, the main contention was that a registered Will has been executed by their late father. It is also their case, inter alia, that the Will has been acted upon, under which a sum of Rs. 5 Lakhs has been given to the third respondent. The court below found that the question as to the genuineness of the Will has to be determined on the basis of the evidence adduced. Primarily we notice that in regard to the F.A.O.Nos. 256 & 257 of 2009 3 question of appointment of a Receiver, what weighed with the court is the fact that despite the notice issued in the application for injunction, the appellant proceeded with the construction of the building in the plaint schedule property. We notice that this is also the predominant consideration which weighed with the court while granting temporary injunction. 5. We heard the learned counsel for the appellant, Shri.P.B.Krishnan as also Shri.R.D. Shenoy, Senior counsel appearing for the first respondent. 6. We are disposing of these appeals on merits finally as we stand informed that respondents 2 and 3 also support the appellant. In other words, they would appear to take the stand that a Will has been executed by their late father. We also went through the joint written statement filed on behalf of respondents 2 and 3. In this circumstance we are dispensing with notice to respondents 2 and 3. F.A.O.Nos. 256 & 257 of 2009 4 7. The learned counsel for the appellant would point out that no case is made out by the first respondent for appointment of a Receiver. He would further submit that as far as the injunction application is concerned, the construction of the building has progressed to a considerable stage. He would submit that the appellant does not intend to make any further construction in respect of the said building. He points out that the appellant has no residential building as such and he is living in the upstair portion of an office building. He further contends that at any rate, the right which the first respondent/plaintiff can claim is only 2/9th share. He would further submit that the appellant is prepared to stand by the undertaking given by him in the court below, that is, he will not claim any equities in the event of the suit being decreed. He would submit that the appellant would be put to irreparable injury if the finishing work is interfered with now. 8. The learned counsel no doubt submit that it is after the receipt of the notice from the court below in the application for F.A.O.Nos. 256 & 257 of 2009 5 injunction that considerable portion of the construction of the building was done. But at the same time he would submit that in the circumstances of these cases the appellant may be permitted to complete the finishing work. 9. Per contra, Shri.R.D. Shenoy, Senior counsel would point out that the conduct of the appellant justifies the injunction granted. He would submit that it is only after receipt of the notice that the construction of the building was done. Having regard to the nature of the case, the orders are to be justified. He would submit that in the circumstances of these cases, there is justification for appointment of a Receiver and for grant of injunction. 10. As far as the question of appointment of the Receiver is concerned, it is a harsh remedy and there are well settled principles governing the appointment of a Receiver. We went through the order passed. We are not satisfied that a Receiver can be appointed on the reasoning which have been adopted by the court below. F.A.O.Nos. 256 & 257 of 2009 6 What essentially weighed with the court below is the conduct of the appellant in proceeding with the construction of the building even after receipt of notice from the court. Certainly this cannot be the sole consideration for the appointment of a Receiver. In such circumstances, we are constrained to interfere with the order and direct reconsideration of the application. 11. Accordingly we allow F.A.O. 257 of 2009, set aside the impugned order, direct the court below to take up I.A. 4572 of 2008, consider the same and pass appropriate orders on the same in accordance with law, within a period of three weeks from the date on which a copy of this judgment is produced before the court below. 12. As far as the F.A.O. 256 of 2009 is concerned, having regard to the stage of the construction of the building, we are of the view that the appellant need not be injuncted against completing the finishing work of the building. But at the same time the F.A.O.Nos. 256 & 257 of 2009 7 injunction must continue in all other respects, including the construction of the building in any manner. 13. Accordingly F.A.O. 256 of 2009 is partly allowed. The order passed in I.A. 4571 of 2008 is modified and while allowing the appellant to complete the finishing work in respect of the building in question, the injunction as against construction, alienation of the property, creating any charge or encumbrance, handing over possession to third party the plaint schedule properties until the disposal of the suit will stand. We further make it clear that allowing the appellant to complete the finishing work will be subject to the undertaking given by the appellant in the court below. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm