IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(C).No. 3551 of 2011(O) ------------------------- CMA.55/2011 of ADL.SUB COURT, THALASSERY .................... ORIGINAL PETITIONERS/APPELLANTS IN CMA/DEFENDANTS IN OS: ------------------------------------------------ 1. K.K.PREMARAJAN, S/O.ACHUTHAN,AGED 59 YEARS,BUSINESS,SREENIKILAM,EDAKKAD AMSOM, KARUVA DESOM, KANNUR 670 007. 2. P.KARUNAKARAN,S/O.KANNAN,AGED 77 YEARS, THEERTHAM,EDAKKAD AMSOM,KARUVA DESOM, KANNUR 670 007. 3. M.K.RATHEESHAN,S/O.KRISHNAN,AGED 48 YEARS MAVILAKKANDY HOUSE, EDAKKAD AMSOM, KARUVA DESOM, KANNUR 670 007. 4. V.SREEJITH,AGED 37 YEARS, UNNIKKIL HOUSE, EDAKKAD AMSOM, KARUVA DESOM, KANNUR 670 007. 5. C.M.RASHEED,S/O.KHADER,AGED 33 YEARS, C.M HOUSE,EDAKKAD AMSOM,KARUVA DESOM, KANNUR 670 007. 6. JITHU @ JITHENDRIYA,S/O.SASIDHARAN AGED 23 YEARS,EDAKKAD AMSOM, KARUVA DESOM, KANNUR 670 007. BY ADV. DR.K.P.PRADEEP SRI.K.N.VIKRAMATHITHYAN PILLAI RESPONDENT/RESPONDENT IN CMA/PLAINTIFF IN OS: ------------------------------------- A.RAJAN,S/O.KUNHIKANNAN,AGED 67 YEARS, RESIDING AT AYADATHIL HOUSE,EDAKKAD AMSOM, KURUVA DESOM, KANNUR 670 007. ADV. SRI.GEORGE MATHEWS SMT.CELINE JOSEPH FOR R THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3551 of 2011 2 APPENDIX PETITIONERS' EXHIBITS : EXHIBIT P1 . TRUE COPY OF THE PLAINT IN OS NO.285 OF 2011 ON THE FILES OF THE MUNSIFF COURT, THALASSERY. EXHIBIT P2 . TRUE COPY OF THE IA NO.1941 OF 2011 IN OS 285 OF 2011 BEFORE THE MUNSIFF COURT, THALASSERY. EXHIBIT P3 . TRUE COPY OF THE COUNTER STATEMENT DATED 17.08.2011 FILED BY THE RESPONDENTS IN IA NO.1941 OF 2011 IN OS NO.285 OF 2011. EXHIBIT P4 . TRUE COPY OF THE ORDER DATED 26.08.2011 IN IA NO.1941 OF 2011 IN OS NO.285 OF 2011 OF THE MUNSIFF COURT, THALASSERY. EXHIBIT P5 . TRUE COPY OF THE CMA 55 OF 2011 DATED 12.10.2011 FILED AGAINST EXT.P4 ORDER. EXHIBIT P6 . TRUE COPY OF THE IA NO.3272 OF 2011 IN CMA 55 OF 2011 DATED 12.10.2011. EXHIBIT P7 . TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN IA NO.3505 OF 2011 IN CMA NO.55 OF 2011 BEFORE THE ADDITIONAL SUBORDINATE JUDGE, THALASSERY. EXHIBIT P8 . TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN IA NO.3506 OF 2011 IN CMA 55 OF 2011 BEFORE THE DDITIONAL SUBORDINATE JUDGE, THALASSERY. EXHIBIT P9 . TRUE COPY OF THE ORDER DATD 29.10.2011 IN IA NO.3506 OF 2011 IN CMA NO.55 OF 2011 BEFORE THE DDITIONAL SUBORDINATE JUDGE, THALASSERY. RESPONDENTS EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3551 of 2011 --------------------------------------- Dated this 08th day of November, 2011 JUDGMENT Ext.P9, order dated 29.10.2011 on I.A.No.3506 of 2011 in C.M.A.No.55 of 2011 of the Court of learned Additional Sub Judge, Thalassery is under challenge. Respondent/plaintiff filed O.S.No.285 of 2011 in the Court of learned Munsiff, Thalassery on 10.08.2011 for a declaration that gift deed No.333 of 2005 executed by him in favour of Jawarlal Nehru Bhavan Building Committee, Kuruva, Kannur is null and void, not binding on him as it is vitiated by fraud and other vitiating circumstances and for a decree for prohibitory injunction against petitioners trespassing into the suit property. He filed I.A.No.1941 of 2011 for an order of temporary injunction. Petitioners objected to the grant of temporary injunction on various grounds. Learned Munsiff as per Ext.P4, order dated 26.08.2011 restrained petitioners from committing waste in the suit property. Petitioners challenged Ext.P4, order in C.M.A.No.55 of 2011 and filed I.A.No.3272 of 2011 for stay of operation of the order. Learned Sub Judge on 15.10.2011 granted stay of the order (against commission of waste) without notice to the respondent and posted the appeal on O.P(C).No.3551 of 2011 -: 2 :- 16.12.2011. On 29.10.2011 respondent filed I.A.No.3505 of 2011 to advance hearing of I.A.No.3272 of 2011 and I.A.No.3506 of 2011 to vacate the order of stay contending that respondent had filed caveat in the District Court, Thalassery as O.P.No.164 of 2011 on 11.10.2011, notice of caveat was served on petitioners on 13.10.2011 and that the order of stay (on I.A.No.3272 of 2011) was obtained on 18.10.2011 without notice to the respondent or counsel notwithstanding service of caveat on petitioners. Learned Sub Judge thereon passed Ext.P9, order vacating the interim stay granted on I.A.No.3272 of 2011 (without notice to the petitioners, it is argued). Ext.P9, order is under challenge. 2. Learned counsel contends that it is not correct to say that copy of caveat petition was served on petitioners and that on 14.10.2011 a copy of the caveat petition was delivered through post at the residence of the sixth petitioner who was not able to contact the counsel since the sixth petitioner was not in station. In that situation, learned Sub Judge was not correct in vacating the order on I.A.No.3272 of 2011 without notice to the petitioners or their counsel, it is contended. 3. On going through Ext.P9, it is seen that I.A.No.3272 of 2011 filed by petitioners in C.M.A.No.55 of 2011 is not finally disposed of. Learned Sub Judge has only vacated the interim order staying operation of Ext.P4, order against petitioners O.P(C).No.3551 of 2011 -: 3 :- committing waste in the property. I am told that the C.M appeal is posted on 16.12.2011. Grievance of petitioners is that Ext.P4, order stands in the way of petitioners constructing building in the suit property. According to the learned counsel, construction of building does not amount to commission of waste. 4. I stated that I.A.No.3272 of 2011 has not been finally disposed of by the learned Sub Judge by Ext.P9, order though, the interim order passed thereon stands vacated by the said order. Now that I.A.No.3272 of 2011 is pending consideration before the learned Sub Judge, appropriate course open to the petitioners is to request learned Sub Judge to hear the parties on I.A.No.3272 of 2011 (if steps are over) and pass appropriate orders thereon. If necessary, it is open to the petitioners to request learned Sub Judge to advance hearing of I.A.No.3272 of 2011. Since that remedy is available to the petitioner, I do not find reason to interfere with Ext.P9, order. I make it clear that I have not expressed any opinion on the merit of any of the orders involved. Leaving it open to the petitioners to seek appropriate remedy as above stated, this original petition is closed. (THOMAS P. JOSEPH, JUDGE) Sbna/-