IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 FAO.No. 272 of 2009(C) --------------------- AGAINST THE ORDER DATED 22/08/2009 IN IA 2654/09 IN OS.70/2007 of ADL.SUB COURT, THALASSERY .................... APPELLANT/PETITIONER/2ND DEFENDANT --------------------------------------------------- V. ASHOKAN, AGED 40 YEARS, S/O.MADHAVI, RESIDING AT VALIYAMBRA HOUSE, NARATH AMSOM DESAM, NARATH.P.O, KANNUR TALUK, PRESENTLY WORKING AT METRO PACIFIC APPARELS, 1877/5, 18 FEET ROAD, 2ND BLOCK, ABR LAYOUT, KALYAN NAGAR, BANGALORE-43. BY ADV. SRI.P.SHRIHARI SMT.P.VANI RESPONDENTS: DEFENDANTS 1 & 2 AND PLAINTIFF --------------------------------------------- 1. VALIYAMBRA RAVEENDRAN, AGED 47 YEARS, S/O. MADHAVI, RESIDING AT VALIYAMBRA HOUSE, BUSINESS, NARATH AMSOM DESOM, NARATH.P.O, KANNUR TALUK AND DISTRICT. 2. VALIYAMBRA PRAKASHAN, AGED 38 YEARS, S/O. MADHAVI, BUSINESS RESIDING AT VALIYAMBRA HOUSE, NARATH.P.O, KANNUR TALUK AND DISTRICT. 3. VALIYAMBRA PURUSHOTHAMAN, AGED 44 YEARS, S/O. MADHAVI, BUSINESS, RESIDING AT VALIYAMBRA HOUSE, KURUVANTHERU, KAMBIL, NARATH.P.O, KANNUR TALUK AND DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 SRI.P.U.SHAILAJAN FOR R2 SRI.S.SUJIN FOR R1 SMT.NITA.N.S. FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. NO. 272 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th Day of December, 2009. JUDGMENT K. M. Joseph J., This appeal is directed against the order passed in I.A. No. 2654 of 2009 in O.S. No. 70 of 2007 on the file of Additional Sub Court, Thalassery. The prayer in that interlocutory application is for an injunction restraining the respondent/1st defendant from constructing, altering, modifying and changing the nature of the building situated in the plaint schedule property so as to suffice the performance of hotel business or any other proposed business likely to be commenced. The appellant is the second defendant in a suit for partition. The Trial court has dismissed the application taking note of the fact that I.A. No. 2926 of 2007 was filed by the plaintiff, wherein the said prayer has been incorporated. The Trial :2: F.A.O. NO. 272 OF 2009 court also took note of the fact that an order was obtained by the plaintiff restraining the first defendant from disposing, leasing, selling and changing the lie and nature of the plaint schedule property. It is noted that the hotel was inaugurated on 27.7.2009 and it was got the four star facilities, according to the first respondent. 2. It is further noted that the first defendant was allowed to dispose of Items 7 to 26 properties, as per I.A. No. 4341 of 2008 and on the basis of the same he sold items nos. 13 and 14 to strangers, who filed petition for impleading. It is noted that if an injunction was granted, it would have worked out untold miseries and hardship to the first defendant in conducting the hotel business in item nos. 10 and 11 properties. It is also noted that it is not maintainable as some relief is already sought for. Further, the Trial court found that the first defendant/respondent started hotel business in item nos. 10 and 11 of the plaint schedule property at his own risk and therefore he shall not claim any special right if it is found :3: F.A.O. NO. 272 OF 2009 that the above properties are partible. 3. We heard the learned counsel for the appellant, Smt. P. Vani and Sri. N. N. Sugunapalan, learned senior counsel for the first defendant. 4. Smt. P. Vani would submit that it is a suit for partition. There are 26 items of properties in the plaint schedule. As already noted, I.A. No. 2926 of 2007 was filed for injunction. The Trial court had granted such an injunction. The first respondent challenged the matter in F.A.O No.204 of 2008 before this court. Therein the first respondent filed I.A. No. 4341 of 2008 for permission to sell items No. 7 to 26 in the plaint schedule properties. According to the learned counsel, the copy of that petition was not served on the present appellant. The application was allowed on 20.10.2008. Thereupon the third defendant filed an application to suspend the operation of the order and to rehear the matter. It is pointed out that on 24.10.2008 this court had deferred the order passed earlier and directed the parties to appear on :4: F.A.O. NO. 272 OF 2009 31.10.2008. It is pointed out that further the first defendant sold items 13 and 14 of the plaint schedule properties to third parties on 24.10.2008. It is pointed out that the present application has been filed in respect of items 10 and 11. Having regard to the facts as already mentioned, the learned counsel would contend that the application for injunction is sustainable, particularly having regard to the fact that the suit is for partition. 5. The case of the 1st respondent is that apart from item nos. 1 and 6, the rest of the properties are not partible. Even though in the earlier F.A.O., the court found that the first defendant had sold items 7 to 26 to third parties, the Court disposed of the appeal taking note of the request of the additional respondents that construction may be allowed at their risk. Subsequently a review was filed which was allowed. The learned senior counsel further pointed out that the hotel business is going on. The suit is of the year 2007 and he submits that the party will co-operate for the disposal of the suit. We would think that in the interest of justice an :5: F.A.O. NO. 272 OF 2009 order is to be passed ordering the early disposal of the suit itself. Accordingly, we direct the Sub Court, Thalasserry to dispose of the suit at the earliest, at any rate, on or before 1st April 2010. The trial Court will dispose of the same untrammeled by anything contained in the impugned order. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/