IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 16449 of 2009(R) -------------------------- AGAINST THE ORDER DATED 21/11/2008 IN IA. 674 /2008 IN OP.261/2008 of FAMILY COURT,KOLLAM .................... PETITIONER --------------- BERNAD,PPERUMGALATHU PARAMBIL, NEAR CAPITHANS THEATRE, MEENATHUCHERRY, SAKTHIKULANGARA, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR SMT.SANDHYA RADHAKRISHNAN RESPONDENTS: --------------- 1. ANANDAVALLI PILLAI, D/.BHARATHI PILLAI, KOYILAPPIL VEEDU, SAKTHIKULANGARA CHERY,KOLLAM. 2. SINDHU,D/O.ANANDAVALLI PILLAI, KOYILAPPIL VEEDU, SAKTHIKULANGARA CHERRY,KOLLAM. 3. ARUNKUMAR,D/O.ANANDAVALLI PILLAI, KOYILAPPIL VEEDU, SAKTHIKULANGARA CHERY,KOLLAM. 4. PADNABHA PILLAI, S/O.GOVINDA PILLAI, KATTAKALATHIL VEEDU, SAKTHIKULANGARA CERY,KOLLAM. ADV. SRI.K.JAYAKUMAR FOR R1 TO 3 SRI.P.B.KRISHNAN FOR R1 TO R3 SRI.R.SURAJ KUMAR FOR R1 TO R3 SRI.BIMAL K.NATH FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPEBNDIX: WPC. 16449/2009 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF SALE DEED NO. 2924/2007 DATED 1-10-2007. EXT.P2: TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE PROPERTY COVERED BY EXT.P1 SALE DEED IN THE NAMME OF THE PETITIOENR DATED 3-10-2007. EXT.P3: TRUE COPY OF THE PLAINT IN OP 261/2008 ON THE FILE FO THE FAMILY COURT, KOLLAM DATED 22-3-2008. EXT.P4: TRUE COPY FO I.A.; NO. 674/2008 IN OP 261/2008 DATEDE 25-3-08. EXT.P5: TRUE COPY FO THE PLAINT IN O.S. NO. 157/2007 ON THE FILE OF THE FAMILY COURT, KOLAM DATED 20-4-2007. EXT.P6: TRUE COPY OF THE ORDER ON I.A. NO. 774/2007 IN O.S. NO. 157/2007 ON THE FILE OF THE FAMILY COURT, KOLLAM DATED 6-10-2007. EXT.P7: TRUE COPY OF THE OBJECTION FILED DBY THE PETITIOENR TO EXT.P4 APPLICATION IN EXT.P3 SUIT DATED NIL. EXT.P8: TRUE COPY OF THE ORDER ON I.A. NO. 674/08 IN O.P. NO. 261/08 ON THE FILE OF THE FAMILY COURT, KOLLAMM DATED 21-11-2008. KS. TRUE COPY P.S. TO JUDGE R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 16449 OF 2009 ============================ DATED THIS THE 25TH DAY OF NOVEMBER 2009 JUDGMENT Basant,J. The matter was posted on 23-11-2009 and orders were dictated. But before the same was signed, we felt the need to speak to the counsel as some obvious errors had crept in while dictating the order. Accordingly, learned counsel are heard today and we proceed to dictate this judgment. 2. The petitioner herein is the 3rd respondent in O.P.No.261/2008 pending before the Family Court. There has been a long history behind this proceedings. 3. O.S.No.157/2007 was filed by respondents 1 to 3 herein against the 4th respondent claiming maintenance. Respondents 1 to 3 herein are the wife and children of the 4th respondent. In that suit, for maintenance past and future, an I.A.was filed for WPC.16449/2009 -2- attachment of the property. The learned Judge of the Family Court by order dated 6-10-2007 in that I.A. granted only an injunction against alienation of the property, which is scheduled as petition B schedule property in O.P.No. 261/2008. 4. According to the petitioner herein, who is a stranger to O.S.No.157/2007, even prior to the date of that order, i.e. 6-10-2007, title of the 4th respondent over petition B schedule property had been conveyed to him by a valid sale deed executed by the 4th respondent. Mutation has been effected and according to the petitioner, he was in exclusive possession as exclusive title holder – transferee from the 4th respondent. 5. Obviously, realising the risk involved, respondents 1 to 3 filed another petition before the Family Court as O.P.No.261/2008. In that proceedings, there were three respondents. First respondent therein was the 4th respondent herein, their husband/father. Second respondent in O.P.No.261/2008 is a stranger and we are not concerned with the dispute between her and respondents 1 to 3 in this writ petition. Respondent No.3 in O.P.No.261/2008 is the petitioner WPC.16449/2009 -3- herein. 6. In O.P.No.261/2008, respondents 1 to 3 herein took the stand that the sale deed dated 1-10-2007 executed by the 4th respondent herein in favour of the petitioner herein is not a valid document and that it deserves to be set aside. An interim application was filed claiming, inter alia, an order restraining the petitioner herein from entering petition B schedule property. In that application, the court below proceeded to pass the impugned order. Order of injunction as claimed was not granted, but an order to the following effect was granted: “But for preserving the subject matter since the transfer of the petition B schedule was during the pendency of suit the 3rd defendant will keep status quo in respect of the B scheduled property till the disposal of suit.” (emphasis supplied) 7. The petitioner claims to be aggrieved by the said interim order. As an appeal against an interlocutory order is not WPC.16449/2009 -4- maintainable under Section 19 of the Family Courts Act, he has come to this court with this petition under Article 227 of the Constitution of India. 8. The learned counsel for the petitioner submits that he is, without dispute, in exclusive possession of B schedule property. No one has any dispute about the actual physical possession of his over the property. Respondent No.4 assigned the property even prior to the date of the interlocutory order(6-10-2007) passed in O.S.No.157/2007. As per the sale deed executed by the 4th respondent dated 1-10-2007, he continues in exclusive possession from that date. The court below without specifically ascertaining status quo in respect of B schedule property had granted the impugned order directing maintenance of status quo. This has resulted in great amount of unnecessary confusion. Armed with such an order, respondents 1 to 3 are attempting to trespass into petition B schedule property to restrain the petitioner from keeping possession of the property and enjoying the said property. In these circumstances, the impugned order may be set aside, it is prayed. WPC.16449/2009 -5- 9. We must frown upon the practice of courts ordering maintenance of status quo without and before ascertaining the status quo. Such a callous order of maintenance of status quo without specifying the status quo is likely to create doubts and confusion in the minds of the parties. Rival contestants may assert different status quo and may try to justify their action on the basis of alleged status quo as perceived by them. We have no hesitation to hold that no court should grant an order directing maintenance of status quo ever without and before ascertaining the existing status. Such confusing interim orders must certainly be avoided by all courts in the interest of proper maintenance of law and order and to avoid unnecessary confusion. 10. It is relevant to note that respondents 1 to 3 do not assert before us that they are in possession of B schedule property. The learned counsel for respondents 1 to 3 submits that their anxiety is only that the petitioner herein should not transfer possession or title and should not alienate the property pending disposal of the O.P. They further want that it should be ensured that the property is maintained in its present form without any WPC.16449/2009 -6- damage or destruction. 11. We are satisfied, in these circumstances, that appropriate modification of the impugned order can be directed. 12. The learned counsel for the petitioner prays that it may be made clear that he is in possession and can continue to keep possession of the property without any hindrance until final orders are passed in O.P.No.261/2008. That request does also appears us to be absolutely reasonable. 13. In the result: a) This petition is allowed. b) Impugned order is modified. In supercession of the directions in the impugned order extracted above, the following directions are issued: 1) The third respondent in O.P.No.261/2008 (i.e. petitioner herein) shall not transfer his title or possession of petition B schedule property till the disposal of O.P.No. 261/2008. 2) The third respondent in O.P.No.261/2008 (petitioner herein) shall not commit any act of waste or damage in the petition B schedule property till the disposal of O.P.No.261/2008. WPC.16449/2009 -7- 3) It is made clear that the above direction shall not fetter the rights of the petitioner herein to keep exclusive possession of petition B schedule property until O.P.No.261/2008 is disposed of. 4) The learned counsel for the petitioner prays and accordingly we reserve the right of the petitioner to move the court below for permission to effect improvements in petition B schedule property. The court below shall consider the same and pass appropriate orders, if necessary, subject to such appropriate conditions as the court may deem fit. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. WPC.16449/2009 -8-