IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 FAO.No. 96 of 2008() -------------------- AGAINST THE ORDER IN IA. 1071 /2007 IN OS.25/2007 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------------------- P.V. MOHANAN, S/O. VELAYUDHAN, AGED 56 YEARS, PADINJARKOOTU, NAYARAMBALAM VILLAGE NOW RESIDING AT MAHIMA, RAVIPURAM, KOCHI-16. BY ADV. SRI.T.RAJESH RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------ FRANCIS, AGED 51 YEARS, S/O. CHEKKU, BUSINESS, PUTHENVEELI HOUSE, PADIVATTOM DESOM, ERNAKULAM, KANAYANNOOR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 96 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2009. JUDGMENT Raman, J, Appellant, aggrieved by the order dismissing an application filed for mandatory injunction under Order 39 of the Code of Civil Procedure has filed this appeal. 2. Appellant is the defendant in the suit instituted by the respondent as plaintiff for specific performance. Property belongs to the appellant. While, the plaintiff would contend that pursuant to the agreement for sale, he was put in possession of the property, but the defendant did not discharge his full obligation and seeking enforcement of the agreement instituted the suit. The defendant contended that the agreement is only a security document for the amount borrowed. But according to the defendant the plaintiff trespassed into the property and property was reduced to his possession. So he filed the present petition to restore possession back by an an FAO. 96 of 2008. 2 interim mandatory injunction. The court below found that Ext.B5 is an agreement between the parties, which indicates that plaintiff was put in possession of the plaint schedule property at a monthly rent of Rs.10,000/- since 11.12.2005. The suit is still pending and therefore taking a prima facie view and considering the balance of convenience, the allegation of trespass by the plaintiff was not believed to be true. 3. We have heard the appellant. 4. At the time of admission, no interim order was granted. Nor there is any scope for granting such an order. Admittedly the plaintiff is now in possession, whether it is as a result of trespass or he was put in possession pursuant to an agreement is the only question remained to be considered. In the light of the covenants contained in Ext.B5, the prima facie view formed by the court below cannot be faulted, and since the appellant is seeking a mandatory injunction, while the suit is pending, he should have adduced strong evidence of dispossession FAO. 96 of 2008. 3 subsequent to the institution of the suit. In these circumstances, we find no merit in this appeal. However, we direct the court below to expedite the disposal of the suit untramelled by any observation made in the order impugned as also our observations in this judgment. The appeal is dismissed subject to what is stated above. P.R. Raman, Judge P. Bhavadasan, Judge sb.