IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 FAO.No. 128 of 2010 --------------------- AGAINST THE ORDER DATED 31.3.2010 IN I.A.417/2010 IN OS.40/2010 OF SUB COURT, MAVELIKKARA .................... APPELLANT/IST COUNTER PETITIONER: --------------------------------------------------------- RAGINI, W/O.PUSHPANGATHAN, PARACKAPALLI THARAYIL (MANKEEZHIL), PUTHIYAVILA MURI, KANDALLOOR VILLAGE. BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENT(S): PETITIONER AND 2ND COUNTER PETITIONER: -------------------------------------------------------------------------------------------- 1. PRASANNAKUMARI, W/O.PRASANNAKUMAR, THAYYIL VEETTIL, PUTHIYAVILA MURI, KANDALLOOR VILLAGE. 2. T.RAJAN, S/O.THANKAPPAN, PAYIKKATTU THEKKATHIL, KRISHNAPURAM MURI, KRISHNAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ALONG WITH FAO.129/2010 ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = FAO Nos.128 & 129 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of May, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.These appeals are filed by the plaintiff in O.S.40/2010 of the Sub Court, Mavelikara. Her brother is the second defendant in that suit. She executed a sale deed in favour of her brother. Later, acting as the power of attorney holder, she executed a further sale deed on his behalf in favour of the first defendant. 2.Apparently, when disputes as to possession arose, the first defendant, the third party, moved the Munsiff's Court and a commission was issued for local inspection. After the commissioner's visit, the plaintiff filed the suit from which these FAO128 & 129/10 -: 2 :- appeals arise, before the Sub Court. She also sought for an order of temporary prohibitory injunction against her brother and the first defendant. The first defendant, in turn, sought for an order of temporary mandatory injunction requiring the plaintiff to vacate from the veranda of the building in question which she was allegedly occupying unauthorizedly, even after the sale deeds. 3.The court below, after hearing the parties on the basis of affidavits and other materials on record, took note of certain vital facts. The plaintiff had admittedly executed a sale deed in favour of her brother. Acting on that sale deed, she again executed a sale deed in favour of the first defendant as the power of attorney holder of the second defendant, the brother. With these two documents and the recitals therein staring at her face, the plaintiff could not have been heard to contend, at any rate, at this point of time, that the said sale deeds had not taken effect. FAO128 & 129/10 -: 3 :- Coupled with this, the court below also noticed that the plaintiff had suppressed the fact of the earlier suit while she instituted the suit from which these appeals arise. Having held that she had not demonstrated any prima facie case and that she had come to court by suppressing material facts, the court below dismissed the plaintiff's application for temporary prohibitory injunction. Taking the materials on record into consideration, the court below found a strong prima facie case for grant of a temporary mandatory injunction in favour of the first defendant, the third party, requiring the plaintiff to vacate from the veranda of the building in a time bound manner. The balance of convenience was, obviously, in favour thereof. The plea that the plaintiff was running a petty shop near the veranda is itself a sufficient ground to hold that the order for temporary mandatory injunction is coupled with the fact that irreparable injury would be caused, if that order does not sustain pending suit. FAO128 & 129/10 -: 4 :- For the aforesaid reasons, we do not find any error of law or of facts or any failure in the appreciation of the materials on record by the court below. Both the appeals, therefore, fail. They are dismissed accordingly in limine. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- S.S.Satheesachandran, Judge. Sha/1905 -true copy- P.S.to Judge.