IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 FAO.No. 192 of 2007() --------------------- AGAINST THE ORDER DATED 13/04/2007 IN IA 10/2007 IN OS.1/2007 of SUB COURT, NEDUMANGAD .................... APPELLANT: 2ND COUNTER PETITIONER/2ND DEFENDANT ------------------------------------------------------------------- SAKKIR HUSSAIN, S/O.SAIDKKANNU, MARHABA, CHITTOOR, PERINGAMMALA, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, BISNI, W/O.SAKKIRHUSSAIN, MARHABA, CHITTOOR, PERINGAMMALA. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): PETITIONER & IST COUNTER PETITIONER/PLAINTIFF ------------------------------------------------------------ 1. K.SOBHANA KUMAR, KOLANIANGALATHU VEEDU, ANAD, NEDUMANGAD. 2. NIRMALA, D/O.GOMATHY, CHIRAG, TC 2/6691(2), VALIYAVILA, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM. ADV. SMT.T.S.MAYA (THIYADIL) FOR R1 SMT.K.REENA FOR R1 SMT.K.G.BINDU FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.192 OF 2007 -------------------------------------------------------- Dated 23rd July 2009 Judgment RAMAN, J. This appeal is filed against an order, restraining the defendants by an order of temporary injunction from trespassing into the plaint schedule property and from interfering with the peaceful possession and enjoyment of the plaint schedule property by the petitioner/plaintiff till the disposal of the suit. 2. The suit is one for specific performance. The plaintiff states that he was in possession of the property pursuant to the agreement and he continues to be in possession thereafter. He has also paid advance consideration on different dates. It came to the knowledge of the plaintiff that in violation of the agreement, the first defendant executed a sale deed in respect of the plaint schedule property in respect of the 2nd defendant with an intention to cheat him. It was also known that the second defendant was taking hectic steps to trespass into the plaint schedule property. It was in such circumstances that the interim 2 application was filed. An ex parte order of injunction was granted on 04.01.2007 and after contest, the said order was confirmed by the impugned order. 3. Defendant No.1 admitted that the plaintiff was in possession of the property on 4.8.1999. But, according to her, everything was done as a result of fraud played by the second husband of the plaintiff. Exts.A1 to A5 and B1 to B10 were marked for reference. The court below, after analysing the evidence on record and considering the prima facie case and balance of convenience, found that the plaintiff should be granted the injunction as sought for. 2. The appellant would contend that the court below ought not have granted the injunction as sought for as it had not considered the guiding factors for granting injunction. At the time of admission, after issuing notice by special messenger, a direction was given to maintain status quo with regard to the possession of the property. That status quo order continues even now. Subsequently, on 11.4.2008, this court clarified that the pendency of this appeal will not stand in the way of dismissal 3 of the suit. In the factual situation, when it is not seriously disputed that the plaintiff was put in possession and in the light of the order to maintain status quo, we feel that the said order should be made absolute till the disposal of the suit, if the suit is still pending. The court below will expedite the trial of the suit and dispose of the same in accordance with law as expeditiously as possible. The observations made in the order under appeal or the observations made by us herein above, being for the limited purpose of finding out the prima facie case and the balance of convenience, will not influence the mind of the court in deciding the main issues that may arise in the suit and it shall dispose of the suit, untrammelled by any of such observations. The appeal is thus disposed of. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta 4 5