IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 10924 of 2009(O) ---------------------------------------- CMA.NO.33/2009 OF I ADDL.DISTRICT COURT, ERNAKULAM, OS.NO.153/2009 OF I ADDL.MUNSIFF COURT,ERNAKULAM. .................... PETITIONER: ------------------- VATSALA NAYAR, LAKE VIEW 3, FINE ARTS AVENUE, ERNAKULAM, COCHIN-16, REP.BY HER SISTER AND POWER OF ATTORNEY HOLDER MRS.MANI RAVINDRANATH, AGED 70, W/O.LATE K.RAVINDRANATH, LAKE VIEW 1, FINE ARTS AVENUE, COCHIN-682 016. BY ADVS. MRI.DINESH R.SHENOY, MR.V.V.UNNIKRISHNAN. RESPONDENTS: ------------------------ 1. JOSEPH PHOENIX, AGED ABOUT 35, PROPRIETOR, M/S.AROMA ASSOCIATES, KOCHERY HOUSE, PUNNAKKAL, ELAMAKKARA, COCHIN-26. 2. T.K.RAMACHANDRAN, SUDHARSHANA ADVERTISING & MARKETING, M/S.CORPORATE ZONE, DOOR NO.60/4081, PALLIYIL LANE, OFF FINE ARTS AVENUE, ERNAKULAM. R1 BY ADV. MR.SHAJI P.CHALY, R2 BY ADV.SMT.M.CHANDRALEKHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.10924 of 2009 - O --------------------------------- Dated this the 25th day of June, 2009 J U D G M E N T This writ petition is filed by the first defendant in O.S.No.153/2009 on the file of the Munsiff Court, Ernakulam. Suit is one for possession filed under Section 6 of the Specific Relief Act. First respondent is the plaintiff in that suit. In the suit, the first respondent filed an application under Order XXXIX Rules 1 and 2 CPC seeking a relief of interim mandatory injunction to direct the defendants to hand over vacant possession of the building to him. Learned Munsiff after considering the objections raised by the defendants, allowed that application. Incidentally, it has to be stated that the second defendant, according to the plaintiff, had been inducted to the premises, subsequent to his dispossession, which is stated to be a cubicle, bearing No.44, on the first floor of a two storied building. Aggrieved by the order of interim mandatory injunction, first defendant preferred an appeal C.M.A.No.33/2009 before the District Court, Ernakulam, in which an application to stay the W.P.(C).No.10924 of 2009 - O 2 operation of the order impugned was also moved. That application was disallowed by the learned District Judge. Ext.P5 is the copy of that order. Impeaching the correctness and propriety of Ext.P5 order, the first defendant has preferred this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. Having regard to the submissions made and the facts and circumstances presented with reference to the order impugned (Ext.P5), I find that appropriate directions/orders have to be issued to the court below for an expeditious disposal of the suit on merits. Admittedly, the second respondent is in possession of the building at present, but, according to the plaintiff after his forcible dispossession. The relief claimed in the suit for putting the plaintiff in possession of the building stands practically decreed by allowing the application for mandatory injunction, without giving opportunity to defendants to lead evidence though both of them have resisted the suit claim. Of course, even in a suit filed under Section 6 of the Specific Relief W.P.(C).No.10924 of 2009 - O 3 Act, if any exceptional circumstances are shown, the court can pass an interim order of mandatory injunction. In the given facts of the case, after hearing counsel on both sides and perusing the materials produced, I find that the interim mandatory injunction which has the effect of granting a decree in the suit should have been avoided by the court. Having regard to the facts presented I find that the appointment of second defendant, who is at present in possession of the property, as receiver over the building involved will safeguard the interest of the plaintiff as well, in case ultimately the suit is decreed in his favour. The learned counsel for the petitioner submits that the petitioner will not be pursuing the appeal filed against the order of interim mandatory injunction in the light of the appointment of the second defendant as receiver by this Court. The second defendant is appointed as receiver by this Court shall surrender vacant possession of the building to the successful party in the suit, after its disposal on merits. Petitioner is entitled to get the rent/fee agreed to be paid by the second defendant, whatever be the nature of arrangement made for occupation of the premises, W.P.(C).No.10924 of 2009 - O 4 during the pendency of the suit, while that defendant continues in occupation as receiver. Appointment of second defendant as receiver by the court is not to be taken in any way advancing the case of that defendant or that of the first defendant. The second defendant shall file an undertaking before the court within 15 days of this judgment accepting her occupation as receiver of the building and to surrender vacant possession to the successful party in the suit. Submission made by the petitioner that he will not prosecute the appeal C.M.A.NO.33/2009 is recorded. The court below is directed to give the suit top priority in hearing and dispose it as expeditiously as possible at any rate within a period of four months from the date of receipt of a copy of this judgment. The court below shall pass appropriate orders untrammelled by any of the observations made in the order allowing interim mandatory injunction as prayed for by the plaintiffs. The District Court, Ernakulam, shall send back the records, if called for and received in C.M.A.No.33 of 2009, to the court below forthwith and close the above appeal in the light of the submission made by the counsel for the petitioner W.P.(C).No.10924 of 2009 - O 5 (appellant), as indicated above, before this Court. The learned Munsiff is directed to report compliance of the orders issued for disposal of the suit, after the time limit fixed. The writ petition is disposed of as above. Send a copy of the judgment to the Munsiff Court and also District Court, Ernakulam, forthwith, and issue a copy to the counsel on both sides on usual terms. S.S.SATHEESACHANDRAN, JUDGE. bkn/-