IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 23399 of 2007(I) ------------------------------------ CMA.46/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.723/2006 of II ADDL.SUB COURT,ERNAKULAM (IA.8168/2006) .................... PETITIONER(S): ------------------------ GEORGE, AGED 55 YEARS, S/O.CHACKO, KIZHAKKEKATTUPARAMBIL, PALATHURUTHU DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM, KOCHI-20. BY ADV. MR.JIMMY JOHN VELLANIKARAN RESPONDENT(S): -------------------------- 1. M/S.SHANYA DEVELOPERS & REALTORS (P)LTD. STATE OF MAHARASHTRA, REP.BY AND ACTING THROUGH THE MANAGING DIRECTOR RANGANATH JAWAHAR SHANKAR ALIAS R.J.SHANKER, RESIDING AT KARTHIKA, CHALIKAVATTOM NO.2651 B1, PONNURUNNI, VYTTILA P.O. KOCHI-19. 2. FR.ANDREWS CHALIL, AGED 68 YEARS, S/O.ANTHRIYOSE, KADUTHURUTHY VILLAGE, VAIKOM TALUK, RESIDING AT 1867 TOTTER STRAPE 14,48507, OCHTRUP, GERMANY. ADV. MR.DENY JOSEPH FOR R1 MR.SREEKUMAR D.MENON FOR R1 MR .S.SREEKUMAR FOR R1 MR.K.J.ANTONY (KANIAMPARAMPIL) FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23399/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AGREEMENT DT. 22.9.05 RANGANATH JAWAHAR SHANKAR ALIAS R.J.SHANKER ENTERED INTO AN AGREEMENT WITH THE PETITIONER. P2:- COPY OF THE AGREEMENT DT. 22.9.05 WAS EXECUTED BETWEM SRI.R.J.SHAKER AND THE PETITIONER. P3:- COPY OF THE AGREEMENT DT. 2.11.05 EXECUTED BETWEEN SRI.R.J.SHAKER AND THE PETITIONER. P4:- COPY OF THE POWER OF ATTORNY DT. 9.11.05 TO R.J.SHANKER FOR THE CONSTRUCTION OF FLATES IN 3 ACRES OF LAND . P5:- COPY OF THE POWER OF ATTORNEY ANOTHER POWER OF ATTORNEY DT. 9.11.05 GIVEN TO SRI.R.J.SHANKER FOR CONSTRUCTION OF FLATS IN 1 ACRE CENT OF LAND. P6:- COPY OF THE POWER OF ATTORNEY DT. 9.11.05 GIVEN TO SRI. R.J.SHANKER FOR CONSTRUCTION OF FLATES IN 30.170 CENT. P7:- COPY OF THE ORDER DT. 9.3.07 IN IA. 8168/06 IN OS. 723/06 PASSED BY THE HONOURABLE SUB JUDGE ERNAKULAM. P8:- COPY OF THE JUDGMENT DT. 29.6.07 IN CMA. 46/07 PASSED BY THE HONOURABLE DISTRICT JUDGE ERNAKULAM. TRUE COPY P.S. TO JUDGE TSS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 23399 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd June, 2009. J U D G M E N T The petitioner is one of the defendants in O.S.No. 723/2006 before the Sub Court, Ernakulam. The same was filed by the 1st respondent for a declaration that Exts. P1 to P3 agreements executed between the parties are still in force and for an injunction against the defendants from interfering with the construction activities permitted by the agreements. Originally, the Sub Court dismissed the application for interim injunction in I.A.No. 8168/2006. Against that, the 1st respondent filed C.M.A. No. 46/2006, which was allowed and an interim injunction was granted. The petitioner is challenging that order in this writ petition. According to the petitioner, if the injunction is allowed to stand, it would cause irreparable injury to the petitioner in so far as any construction made by the 1st respondent in the property would be useless to the petitioner and for removing the same, the petitioner and other defendants have to incur further expenses. 2. I have heard learned counsel for the respondents also. 3. The impugned order is only an interim order. All what it does is to injunct the petitioner from interfering with the activities permitted by Exts. P1 to P3 in the plaint schedule properties. If, during the pendency of the suit, any construction is made, naturally, if the suit is ultimately dismissed, the 1st respondent is duty bound to remove the same. I am not satisfied that there is any infirmity in that order. The petitioner is also not in any way prejudiced by the same. However, there must be some safeguard to ensure that if the suit is dismissed, the 1st respondent would remove the constructions made on the strength of the interim order. Therefore, this writ petition is W.P.C. No. 23399/2007 -: 2 :- disposed of making it clear that if, ultimately, the suit is dismissed, the 1st respondent would be liable to remove any construction made in the property during the pendency of the suit and if the 1st respondent do not do so, the cost for doing the same can be realised from the 1st respondent by the defendants in the suit. There would be a direction to the Sub Court, Ernakulam to make that also a condition in the decree, if the suit is ultimately dismissed. Sd/- S. Siri Jagan, Judge. Tds/