IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 OP(C).No. 1008 of 2010(O) ------------------------- CMA.30/2009 of ADDL. DISTRICT COURT,NORTH PARAVUR OS NO.122/2009 OF SUB COURT, PERUMBAVOOR .................... PETITIONERS ------------------------------- 1. RATNAMMA,AGED 60,W/O.KUNJAPPAN, CHERAMBILLY HOUSE, MALAYATTOOR DESOM, MALAYATTOOR VILLAGE, ALUVA TALUK. 2. KUNJAPPAN,AGED 68,S/O.,PAPPU, CHERAMBILLY HOUSE,MALAYATTOOR DESOM, MALAYATTOOR VILLAGE, ALUVA TALUK. 3. SHIBU,S/O.KUNJAPPAN,AGED 48, CHERAMBILLY HOUSE,MALAYATTOOR DESOM, MALAYATTOOR VILLAGE, ALUVA TALUK. BY ADV. SRI.K.NARAYANAN (PARAVUR) SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): --------------- 1. C.P.TIMBERS,OPERATING AT CHELMATTOM KARA CHELAMATTOM VILLAGE,KUNNATHUNADU TALUK,REP.BY THE MANAGING PARTNER AJI,AGED 38,S/O.CHERMBILLY KUNJAPPAN,RESIDING AT ARIVALKUDY HOUSE,SREEMOOLANGARAM KARA, VADAKKUMBHAGOM VILLAGE, 683 580. 2. C.P.TIMBERS,OPERATING AT CHELMATTOM KARA CHELAMATTOM VILLAGE,KUNNATHUNADU TALUK,REP.BY THE PARTNER ,LEENA,AGED 33,W/O.AJI,R/AT ARIVALKUDY HOUSE,SREEMOOLANGARAMKARA, VADAKKUMBHAGOM VILLAGE, 683 580. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1008 of 2010 -------------------------------------- Dated this the 6th day of December, 2010. JUDGMENT Defendants in O.S.No.122 of 2009 of the court of learned Sub Judge, Perumbavoor are the petitioners before me aggrieved by the direction made by learned Additional District Judge, North Paravur in C.M.A.No.30 of 2009 for sale of timber and logs stacked in plaint B schedule by auction and disbursement of sale proceeds after the disposal of the suit. Respondents filed the suit claiming right over plaint A schedule and further claiming that they have a right to stack timber and logs in plaint B schedule. There were certain other claims made in the suit. They alleged that petitioners are attempting to remove timber and logs kept in plaint B schedule and filed I.A.No.799 of 2009 against such act. Petitioners filed Ext.P2, objection contending that dispute between the parties was settled as per an exchange deed dated 12.03.2009 and as per that exchange deed, plaint B schedule belong to the petitioner. That was followed by Ext.P3, agreement dated 19.03.2009 whereby other disputes also were settled and as per that settlement articles stacked in plaint B schedule were shared by petitioners and respondents equally. Petitioners further contended that share of respondent No.1 was removed from plaint B schedule and what is left in plaint B schedule belonged to the petitioners. Learned Sub Judge after considering various contentions passed Ext.P4, order vacating the interim order of injunction over plaint B schedule but directing parties to maintain status quo regarding the timber and logs. Respondent challenged the order vacating the interim injunction OP(C) No.1008/2010 2 in C.M.A.No.30 of 2009. Learned Additional District found no reason to interfere but, considering the dispute regarding the timber and logs stacked in plaint B schedule and Ext.P3 dated 19.03.2009 is disputed by the respondent thought it appropriate that the timber and logs are sold in auction and sale proceeds are disbursed to the parties after disposal of the suit. Aggrieved by that part of direction in Ext.P5, judgment petitioners are before me with this petition under Article 227 of the Constitution. Learned counsel submitted that a perusal of Ext.P3, agreement dated 19.03.2009 would show that dispute over timber and logs was also settled as aforesaid, respondent No.1 has already removed his share of timber and logs from plaint B schedule and what is left behind in plaint B schedule belonged to the petitioners. It is contended that in view of the exchange deed dated 12.03.2009, it is not disputed that plaint B schedule belonged to the petitioners so that, learned Additional District Judge was not correct in issuing a direction as aforesaid. A further contention advanced is that in C.M.A.No.30 of 2009 challenge was only to the order vacating interim injunction. 2. It is not disputed that it was after hearing both sides that learned Additional District Judge passed the impugned judgment. It is not as if the learned District Judge was without power to make interim arrangement regarding timber and logs stacked in plaint B schedule pending disposal of the suit. Ext.P3, agreement dated 19.03.2009 is not admitted by the respondents. They contended that it is fraudulently created. At the same time it is also not disputed that there was a licence in favour of respondents for running the OP(C) No.1008/2010 3 industry and to stack timber and logs in plaint B schedule. That licence should remain in force until it is terminated. No doubt, petitioners have their version about the licence and its validity. It is in such a situation that learned Additional District Judge thought it fit, rather than allowing the timber and logs remain in plaint B schedule and get lost or damaged that the same is sold in auction and the sale proceeds are disbursed to the winner at the end of suit. Having regard to the nature of dispute and nature of the materials involved I do not find reason to interfere with the discretionary jurisdiction exercised by the learned Additional District Judge. It is not as if the discretion has been exercised arbitrarily or, beyond the power of court so that this Court is required to interfere under Article 227 of the Constitution. It is open to the parties or any of them to request learned Sub Judge after the sale is over to deposit the sale proceeds in such a way it carried interest so that the winner will be benefited by deposit of the amount. Learned Sub Judge is directed to expedite disposal of the suit taking into account the rival claims made over the timber and logs stacked in plaint B schedule and which is directed to be sold by the learned Additional District Judge. Petition is closed with the above direction. THOMAS P.JOSEPH, Judge. cks