IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 OP(C).No. 81 of 2010(O) --------------------------------- CMA.14/2010 of ADDL.DISTRICT COURT, KOZHIKODE OS.22/2010 of SUB COURT, VADAKARA .................... PETITIONER/PLAINTIFF/APPELLANT IN C.M.A. ------------------------------------------------------------ ANGADITHAZHA RAJAN, S/O.CHOYI, AGED 56 YEARS, THAZHATH PADIKKAL, P.O.ADAKKATHARU, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): 4TH DEFENDANT/RESPONDENT IN C.M.A. -------------------------------------------------------------------------------------- ANGADITHAZHA SARASA, D/O.CHOYI, AGED 63 YEARS, SADHANA, NUTSTREET.P.O., VADAKARA, KOZHIKODE DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.81 of 2010 ==================================== Dated this the 28th day of September, 2010 J U D G M E N T Petitioner challenges Ext.P9, order as confirmed by Ext.P11, judgment. Respondent is the sister of petitioner. The latter filed R.C.P. No.12 of 2002 seeking eviction of petitioner as if he is her tenant, under Section 11(2) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Petitioner contended that rent was paid to the respondent, there was no rent arrears as pleaded and that bona fide need put up by the respondent was not genuine. Rent Control authorities rejected contention of petitioner and granted an order of eviction in favour of respondent on both counts. Petitioner took up the matter in revision in this Court. In the revision a contention was advanced that consequent to the death of the father, petitioner became a co-owner of the shop rooms. This Court did not entertain that plea since there was no such contention raised by petitioner in the courts below and refused to interfere with the order of eviction. But it was made clear that the order of this Court (Ext.P9) order will not stand in the way of petitioner enforcing his other rights if any, as provided under law. Thereafter petitioner filed O.S. No.22 of 2010 in the O.P(C) No.81 of 2010 -: 2 :- court of learned Sub Judge, Vadakara seeking partition of the shop rooms and the land on which the rooms are situate. He claimed that the said property originally belonged to his father, Choyi who executed Ext.A1, Will and that as per the Will petitioner also is entitled to a share in the property. Petitioner filed I.A. No.201 of 2010 under Order XXXIX Rule 1 of the Code of Civil Procedure seeking an order of injunction to restrain respondent from taking delivery of the shop rooms in execution of the order in R.C.P. No.12 of 2002. Respondent contended that property over which petitioner is claiming co-ownership right is not the property in which shops rooms are situate. She contended that what was bequeathed to sons by the late Choyi is item No.15 of Ext.A1, Will and that petitioner assigned his right in the said property to one Raveendran as per Ext.B4. She also claimed that the shop rooms and the land where those shop rooms are situate was bequeathed to her as item No.8 of Ext.A1, Will. In the meantime petitioner filed I.A. No.431 of 2010 to appoint an Advocate Commissioner for identification of the property in the light of contentions raised by respondent. Learned Sub Jude was not impressed by the petition and dismissed I.A. No.201 of 2010 which order was confirmed by the leaned Additional District Judge O.P(C) No.81 of 2010 -: 3 :- by Ext.P11, judgment. Exhibits P9 and P11 and under challenge in this Original Petition. Learned counsel contends that when the suit for partition was pending and even before the dispute regarding identity of the property was resolved, courts below were not correct in allowing respondent to take delivery of the shop rooms in question. It is also contended that at least Ext.P7 (I.A.No.431 of 2001) for appointment of commission ought to have been allowed by the learned Sub Judge and question whether petitioner has a prima facie case should have been decided only after considering the report. Petitioner apprehends that if delivery is effected in favour of respondent, respondent might immediately pull down the building. 2. Now challenge in this petition is with regard to Ext.P9 and P11 refusing to restrain respondent from taking delivery of the shop rooms. Question is whether respondent who has obtained an order in her favour in R.C.P. No.12 of 2002 is to be restrained from taking delivery of the property. Learned Sub Judge has referred to the decision in Ittan (Plaintif) v. Subramonia Iyyer (Defendant) (1958 KLT 327) to hold that when decree has been lawfully obtained its execution cannot O.P(C) No.81 of 2010 -: 4 :- be prevented. There is no case that order on R.C.P. No.12 of 2002 was obtained fraudulently. Learned counsel contends that even in the counter in R.C.P. No.12 of 2002 petitioner had raised a claim of co-ownership over the land and the shop rooms situated thereon and had claimed that it was under the impression that respondent is the owner of property that rent was paid to her. Assuming so, that contention has been found against and an order for eviction is granted in favour of respondent which this Court refused to interfere though right of petitioner to enforce the claim he made over the property was left open. Until the suit is decided the order on R.C.P. No.12 of 2002 should and would stand as final. Respondent has been fighting the case from 2002 onwards and there is no reason why the hard earned order for eviction should be kept in abeyance until the dispute raised in the present suit is settled. Courts below have referred to Ext.B4, copy of assignment deed marked in the trial court as per which property assigned to petitioner was assigned to Raveendran where, boundary of that property is shown as rest of the property in the possession of the respondent. That also was taken into account by the courts below to hold that prima facie, contention raised by the petitioner cannot be sustained. Courts below have considered the question O.P(C) No.81 of 2010 -: 5 :- at length and found that no prima facie case is made out by petitioner justifying grant of injunction. Nor am I impressed that if injunction is not granted petitioner will be put to irreparable loss and hardship for, delivery is effected subject to the result of the suit. Balance of convenience also is not in favour of petitioner justifying the grant of injunction. Courts below have exercised the discretion in favour of not granting injunction. There is no illegality or irregularity committed by the courts below in the exercise of jurisdiction so that this Court is required to interfere under Article 227 of the Constitution. I find no reason to interfere. If petitioner has filed application in the trial court for identification of the property it is open to him to pursue that application. If petitioner has an apprehension that on delivery of shop rooms to the respondent she will immediately pull down the building, petitioner can seek appropriate relief in that regard from the trial court as provided under law. These are matters which the trial court has to consider if appropriate application is made by the petitioner. I make it clear that whatever observations made on the merit of the case will be confined to the dismissal of I.A. No.201 of 2010 and that trial court shall dispose of the suit untrammelled by any observation contained in Exts.P9 and P11 or in this judgment. O.P(C) No.81 of 2010 -: 6 :- With the above observations this Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv