IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 OP(C).No. 461 of 2011(O) ------------------------ AS.35/2010 of SUB COURT, VADAKARA OS.58/2010 of MUNSIFF COURT, NADAPURAM .................... PETITIONERS -------------------- KOVUMMAL KUNHIPATHU, D/O.KOVUMMAL KUNHABDULLA, KORANGAD POOZHIKKUNNAM HOUSE, RAROTH AMSOM, KATTAVOOR DESOM, POST THAMARASSERI, KOZHIKODE DISTRICT. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SMT.RUKHIYABI MOHD KUNHI RESPONDENTS: ----------------------- 1. MUKKATHKOLLANDY ASYA HAJJUMMA, D/O.ALIKUTTY, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508. 2. ASYA, W/O.MOIDU, VELUTHAPARAMABTH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508. 3. SAMEERA, D/O.MOIDU, MUKKATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508. 4. ALIKUTTY, VELUTHAPARAMBATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508. OP(C).No. 461 of 2011(O) ----------------------------------------- 5. AARIF, VELUTHAPARAMBATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508. 6. SHAFEEK, VELUTHAPARAMBATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508. BY. ADV. SRI.GEORGE THOMAS (MEVADA), SENIOR ADVOCATE BY ADVOCATE SRI.MANU GEORGE KURUVILA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk K.T.SANKARAN, J. ------------------------------ O.P(C).No.461 OF 2011 ------------------------------ Dated this the 3rd day of February, 2011 JUDGMENT The petitioner is the plaintiff in O.S.No.58 of 2010 on the file of the Court of the Munsiff of Nadapuram. The suit was filed for recovery of possession of the plaint schedule immovable properties. The trial court, as per the judgment and decree dated 22nd October,2010, held that the plaintiff is not entitled to get a decree for recovery of possession. 2. Challenging the judgment and decree of the trial court, the plaintiff filed A.S.No.35 of 2010 on the file of the Sub Court Vadakara. In that appeal, the appellant/plaintiff filed I.A.1340 of 2010 for an injunction restraining respondents from taking surrender of building situated in item 3 of the plaint schedule property from the tenant therein. The Lower Appellate Court dismissed the O.P(C).No.461 OF 2011 2 application for injunction, as per the order dated 19th January, 2011, which is under challenge in this Original Petition. The learned counsel for the petitioner submitted that the order of injunction sought for would really come under Rule 7 of Order 39 of the Code of Civil Procedure and therefore, the order is not appealable under Order 43 Rule 1 (r). No serious contention is raised by the respondent challenging the maintainability of the Original Petition. 3. The case of the plaintiff is that the property belonged to one Ayanki Pathu and others. Ayanki Pathu leased out the property to one Alikutty as per registered deed executed in the year 1957. Alikutty died in the year 1968. Defendants 1 to 6 are the legal representatives of Alikutty. The plaintiff is claiming right and title as one of the legal representatives of Ayanki Pathu. O.P(C).No.461 OF 2011 3 4. The defendants claimed that they are entitled to the protection under Section 106 of the Kerala Land Reforms Act, as the lease in question is a commercial lease and as the predecessor of the defendants had constructed the building in the property before 20th May, 1967. 5. As stated above, the trial court did not accept the case put forward by the plaintiff. On the other hand, the case put forward by the defendants that they are entitled to the protection of the Kerala Land Reforms Act was accepted by the trial court. 6. The building in item 3 of Plaint schedule property is in the possession of one Abdul Rasheed as a tenant. The first defendant in the present suit filed a Rent Control Petition to evict the tenant from the building. The Rent Control Petition was allowed. The tenant took up the matter up to Supreme Court. It is stated that before the O.P(C).No.461 OF 2011 4 Supreme Court, Abdul Rasheed, the tenant, gave an undertaking that he would vacate the building on or before 19.11.2010. The tenant did not vacate the premises. The Execution Proceedings are going on. The injunction sought for by the petitioner in the application filed by him in the Appeal is to restrain the defendants from getting possession from Abdul Rasheed. In effect, the prayer for injunction if granted, it would have the effect of injuncting the decree holders in the Rent Control Petition from executing the decree which they have obtained. The court below held that the petitioner is not entitled to get the injunction prayed for. Even if the tenant is evicted at the instance of the defendants in the present suit, no irreparable injury would be caused to the petitioner/plaintiff. The prayer in the suit is to get recovery of possession. If the petitioner succeeds in the appeal, by the mere fact that the tenant was evicted from the building, the plaintiff would not lose anything. The balance of convenience was O.P(C).No.461 OF 2011 5 certainly not in favour of granting injunction. No irreparable injury would be caused to the petitioner if injunction is not granted. The court below considered all the relevant facts and held that the prayer for injunction cannot be granted. There is no error of jurisdiction or error of law warranting interference under Article 227 of the Constitution of India. The Original Petition lacks merits in so far as it relates to challenge against the order passed by the court below. 7. There is also a prayer in the Original Petition to direct the Subordinate Judges Court, Vadakara to dispose of A.S.No.35 of 2010 expeditiously. The respondents have no objection in granting that prayer. Of course the appeal is of the year 2010. The Lower Appellate Court shall make every effort to give an early posting of the appeal so that the appeal can be disposed of without delay. O.P(C).No.461 OF 2011 6 8. The order passed by the court below does not call for any interference and the Original Petition is dismissed to that extent. The Original Petition is partly allowed as mentioned above, in so far as it relates to the prayer for early disposal of the appeal. K.T.SANKARAN, JUDGE. cms