IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 WP(C).No. 22410 of 2010(O) -------------------------- CMA.49/2009 of II ADDL.DISTRICT COURT,ERNAKULAM OS.240/2009 of II ADDL.M.C., ERNAKULAM (IA.1533/09) .................... PETITIONER(S): --------------- SREENIVASAN K., S/O.KARUNAKARAN PILLAI, AGED 40 YEARS, GAGANAM, ELAMAKKARA, PUNNAKKAL, EDAPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.R.KRISHNA RAJ SRI.R.KRISHNARAJ RESPONDENT(S): --------------- 1. MADHAVIAMMA, W/O.LATE PARAMESWARAMENON, GOWRISANKARAM, ETTUMANNUR, KOTTAYAM DISTRICT (HENCE DECEASED, 2ND RESPONDENT ALONE BEING THE LEGAL HEIR ALREADY ON PARTY ARRAY) PIN 686 001. 2. SAVITHRI AMMA AGED 56 YEARS, W/O.CHANDRASEKHARAN NAIR, GAWREESANKARAM, ETTUMANOOR P.O., KOTTAYAM DISTRICT, PIN 686 001. SRI.C.VARGHESE KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 22410/2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE AGREEMENT OF SALE DATED 16.9.2006. EXT.P2: COPY OF THE PETITION FOR INJUNCTION I.A.NO.1533/2009 IN O.S.NO.240/2009 DATED 19.2.2009. EXT.P3: COPY OF THE COUNTER IN I.A.NO.1533/2009 IN O.S.NO.240/2009 DATED 28.2.2009. EXT.P4: COPY OF REPLY AFFIDAVIT DATED 16.3.2009. EXT.P5: COPY OF THE INTERROGATORIES DATED 17.3.2009. EXT.P6: COPY OF THE AFFIDAVIT DATED 18.3.2009. EXT.P7: COPY OF RECEIPTS ISSUED ON VARIOUS DATES. EXT.P8: COPY OF THE ORDER PASSED BY THE HON'BLE DISTRICT COURT DATED 26.3.2010 IN C.M.A.NO.49/2009. EXT.P9: COPY OF THE ORDER IN I.A.NO.1533/09 IN O.S.NO.240/2009 PASSED BY THE HON'BLE MUNSIFF COURT, ERNAKULAM DATED 3.4.2009. RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- W.P.(C).No.22410 of 2010 --------------------------------------- Dated this the 29th day of March, 2011 JUDGMENT The petitioner is the defendant in O.S.No.240 of 2009 on the file of the court of the IInd Additional Munsiff of Ernakulam. I.A.No.1533 of 2009 was filed by the plaintiffs for temporary injunction restraining the defendant from obstructing the plaintiffs from reconstructing the demolished portion of the compound wall on the eastern boundary and restraining them from trespassing upon the plaint schedule property or interfering with the peaceful possession and enjoyment of the plaintiffs over the property. The trial court, as per Exhibit P9 order dated 3rd April, 2009, dismissed the application for temporary injunction. The plaintiffs challenged the order in C.M.A.No.49 of 2009 on the file of the court of the District Judge, Ernakulam. The court below allowed the appeal and set aside the order WPC 22410/2010 2 passed by the trial court and an injunction was granted restraining the defendant from "interfering with any portion of the plaint schedule property which is set part to late Ambika as per F schedule to Exhibit A1 under the guise of Exhibits B4 and B5." The judgment in C.M.A.No.49 of 2009 is under challenge in this Writ Petition. 2. The court below considered the facts and circumstances of the case and held that the plaintiffs are entitled to get an order of temporary injunction. The main grievance of the petitioner is that while disposing of C.M.A., the court below made certain observations on the merits of the case, which may cause prejudice to him. On going through the judgment of the court below, I do not find any ground to interfere with the finding of fact arrived at by the court below. Accordingly, the Original Petition is dismissed. However, it is made clear that the findings and WPC 22410/2010 3 observations in the judgment in C.M.A. should not be taken into account by the trial court while disposing of the suit. The suit shall be disposed of untrammelled by any of the findings and observations in the order of the trial court as well as in the judgment of the lower appellate court. K.T.SANKARAN JUDGE csl