IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 FAO.No. 176 of 2011 ---------------------------- AGAINST THE ORDER DATED 17/03/2011 IN IA 2500/2010 IN OS.125/2008 of SUB COURT,ATTINGAL .................... APPELLANTS (S):COUNTER PETITIONERS/DEFENDANTS 1 & 2: ------------------------------------------------------------------------------------------- 1. JYOTHISHKUMAR, JYOTHI BHAVAN, KUNNUMMEL, KILIMANOOR. 2. VINOD, JYOTHI BHAVAN, KUNNUMMEL, KILIMANOOR. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): PETITIONER & 3RD COUNTER PETITIONER/PLAINTIFF & 3RD DEFENDANT: -------------------------------------------------------------------------------------------------------- 1. CHITHRA, GEETHA BHAVAN, MULLARAKODU, VADASSERIKONAM, P.O.VARKALA, THIRUVANANTHAPURAM DISTRICT, PIN - 695 141. 2. SMT.PADMINI (I.P), GOVERNMENT MENTAL HOSPITAL, PEROORKADA, THIRUVANANTHAPURAM PIN - 695 601. R1 BY ADV.SRI.R.S.KALKURA. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.176 of 2011 ---------------------------------------------- Dated, this the 13th day of July, 2011 J U D G M E N T K.M.Joseph, J. This appeal is directed against the order dated 17.3.2011 passed by the learned Sub Judge, Attingal in I.A.No.2500/2010 in O.S.No.125/2008 filed by the Ist respondent herein. The Ist respondent is the sister of the appellants. The 2nd respondent is the mother of the appellants and the Ist respondent. The suit is one for partition. I.A.No.2500/2010 filed by the Ist respondent was one seeking an order of temporary prohibitory injunction restraining the appellants from ousting the Ist respondent from the plaint schedule properties and from taking part in the collection of income from the plaint schedule properties and from getting the Ist respondent's due share either 1/3rd or 1/4th till the disposal of the suit. The order in I.A.No.2500/2010 dated 17.3.2011 reads as under: “Allowed as no objection is yet filed”. 2. We heard the learned counsel for the appellants and learned counsel for the Ist respondent. In view of the nature FAO 176/2011 -2- of the order we propose to pass, we do not deem it necessary to issue notice to the 2nd respondent. The complaint of the appellants as voiced in the memorandum of appeal inter alia are as follows: The Ist respondent had filed I.A.No.802/2008 and I.A.No.806/2008. The prayer in I.A.No.802/2008 was for injunction against the appellants from committing waste. The prayer in I.A.No.806/2008 was for appointment of a Receiver. I.A.No.802/2008 was allowed and I.A.No.806/2008 was dismissed. The Ist respondent filed F.A.O.No.91/2009 against the order in I.A.No.806/2008 and the same is pending in this Court. The case of the appellants is that the Ist respondent has suppressed these facts and filed I.A.No.2500/2010 through her husband who is a practicing lawyer of Attingal Bar. It is stated that the Advocate had not intimated the appellants about the posting dates. Hence counter could not be filed in time. Appellants are seriously prejudiced, it is contended. It is also the case of the appellants that the Ist respondent suffered an order in I.A.No.806/2008 which was for appointment of a Receiver and against which appeal is pending. It is stated that the order of the FAO 176/2011 -3- Court below is arbitrary and illegal. 3. The learned counsel for the Ist respondent would contend that actually copy of the Interlocutory Application was served. That was adjourned on four occasions for filing counter affidavit and there is an advance petition filed by the Ist respondent seeking early disposal of the matter and it was in such circumstances the order came to be passed. 4. It may be true that there were many adjournments taken by the appellants for filing counter affidavit and still the counter affidavit is not filed. But, we must notice that the application was one for injunction. There are well settled principles governing the circumstances in which an interim order of injunction can be granted. We have already extracted the impugned order. None of the elements which must be established for grant of interim relief has been adverted to. We would think that the order as passed cannot be sustained. In such circumstances, we allow the appeal, set aside the impugned order and direct the Sub Court, Attingal to take I.A.No.2500/2010 and pass fresh orders. The parties will appear before the Court below on 26.7.2011. After hearing the parties, the Court below will pass FAO 176/2011 -4- orders on I.A.No.2500/2010 within a period of three weeks from 26.7.2011. We must note here that the learned counsel for the Ist respondent brought to our notice that, in fact, the appellants have filed a Review Petition against the order. But, learned counsel for the appellants, on instructions, would submit that in the RP, the appellants have filed a not pressed memo. We record the same. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS