IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 FAO.No. 180 of 2011 --------------------------- AGAINST THE ORDER DATED 10/06/2011 IN IA 736/2011 IN OS.22/2011 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS (S):(DEFENDANTS 3 AND 4): ------------------------------------------------------------ 1. C.UNNIKRISHNAN,S/O.LATE DEVENDRAN, VEDIKKARAN HOUSE,CHANTHAMBULLI,ELAPPULLY II VILLAGE PALAKKAD TALUK,P.O.VENGODI-678622. 2. ABDUL KIZHORE,S/O.MUTHALIF,CHUTTIPPARA HOUSE,ELAPPULLY II VILLAGE,PALAKKAD TALUK, P.O.VENGODI-678622. BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA SMT.S.SANTHY RESPONDENT(S): (PLAINTIFF AND DEFENDANTS 1 AND 2): ------------------------------------------------------------------------------------ 1. AUSTIN BENNAN,S/O.BENNAN,AYYATH BUNGLOW, VADDAKKUM BHAGOM,PO-NORTH SIDE,CHAVARA SOUTH, 691584,KOLLAM DISTRICT. 2. MANIKANDAN,AMMANCHERI VEEDU,KUDUPUZHA DESOM,EAST CHALAKUDY VILLAGE,MUKUNDAPURAM TALUK, MUKUNDAPURAM.P.O,-691585,THRISSUR DISTRICT. 3. ANILKUMAR,S/O.MANI,RESIDING AT MAZHUVANPILLY HOUSE,KUDUPUZHA DESOM, EAST CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, MUKUNDAPURAM.P.O- 691585,THRISSUR DISTRICT. R1 BY ADV.SRI.PRAKASH P GEORGE( CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO 180/2011: APPENDIX: ANNEXURE-I TRUE COPY OF OBJECTION FILED IN IA 736/2011 IN OS.22/2011. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ F.A.O.No.180 of 2011 ---------------------------------------------- Dated, this the 14th day of July, 2011 J U D G M E N T K.M.Joseph, J. Appellants are defendants 3 and 4 in O.S.No.22/2011. The said suit was instituted by the Ist respondent herein seeking specific performance of an agreement for sale dated 5.3.2010 alleged to have been entered into between him and respondents 2 and 3 in this appeal. Briefly put, the case of the appellants is as follows: 2. Along with the suit the Ist respondent had filed an application for injunction restraining the respondents 2 and 3 from alienating the property. There was no order of injunction. Respondents 2 and 3 denied having executed any agreement in the written statement. They also stated that they had entered into an agreement dated 20.5.2008 with the appellants for sale of the property and had subsequently assigned the property for an amount of Rs.35 lakhs to the appellants under a registered document dated 5.1.2011. Thereupon, the Ist respondent filed an application to implead the appellants. On that petition notice was FAO 180/2011 -2- ordered to the appellants. The date of appearance was 23.5.2011. On 23.5.2011 the appellants appeared. The case was posted to 25.5.2011 for counter. Appellants filed counter. In the meantime, the Ist respondent filed I.A.No.736/2011 for an order of injunction restraining the appellants from alienating the property, giving possession of the property to others and committing act of waste therein. Appellants filed detailed objection. It is specifically pointed out that after purchase of the property they have improved the property spending more than Rs.15 lakhs and had assigned portions thereof to 127 persons as per registered documents, the particulars of which were also furnished along with the objections. Such documents were executed between 8.2.2011 and 27.4.2011. It is stated that they have entered into agreements with 7 persons for sale of the property. Such agreements were executed between 2.3.2011 and 29.3.2011. Annexure-I purports to be the objection filed by the appellants. However, the court below passed the following order. “In view of the fact that the properties are now directly involved in the litigation subsequent purchasers will be hit by the principle of lis pendens. Still for the sake of avoiding multiplicity of litigation, it is desirable to restrain the respondents from disposing the disputed property. FAO 180/2011 -3- Therefore, interim injunction is granted against alienation, committing waste and inducting third parties.” 3. Feeling aggrieved by the same, the appellants are before us. We heard the learned counsel for the appellants and learned counsel for the respondents at the admission stage itself. Learned counsel for the appellants would reiterate his contentions. He emphasizes that even prior to the alleged agreement relied upon by the Ist respondent the plaint schedule property itself had been assigned in favour of the appellants and what is more subsequently portions have been assigned to others who are not made parties. Agreement was also entered in respect of balance portion of the property and it is not a fit case for the Court to grant the relief sought for, it is contended. There is no discussion at all in the order. Learned counsel also brought to our notice the decision of the Apex Court in Seema Arshad Zaheer v. Municipal Corporation (2006 (4) KLT 65 (SC) wherein the Apex Court has referred to the principles applicable in the matter of grant of temporary injunction. He also relied on the decision in P.Muthukoya v. M.Muthukoya (1988 (1) KLT 664) for the very same proposition. He would therefore submit that the order has to be set aside. FAO 180/2011 -4- 4. The learned counsel for the Ist respondent/plaintiff submits that the Ist respondent has invested huge amounts. The learned counsel would support the order. 5. We see merit in the contention of the learned counsel for the appellants. The suit is one for specific performance. The only reason stated for granting the order appears to be for the sake of avoiding multiplicity of litigation it is desirable. The learned Judge noted that subsequent purchasers will be hit by the principle of lis pendens and thereafter interim injunction is granted. Annexure-I objection has already been filed. There was a duty on the part of the Court to look into the objection, consider the same and pass orders thereon. It may be true that avoiding of multiplicity of litigation may be one of the factors which can be considered. But, at the same time, other factors which are germane in the matter of consideration of grant of interim relief of injunction have been not adverted to in the order. In such circumstances, we set aside the impugned order and direct the Sub Court, (Additional) Palakkad to take up I.A.No.736/2011, hear the parties and pass orders in the matter. The parties shall appear before the Court below on 27.7.2011. Till FAO 180/2011 -5- a decision is taken by the Court below, in the circumstance of the case, we direct that there will be an injunction against alienation, committing waste and inducting third parties by the appellants herein. We further make it clear that, the Court will proceed to dispose of the matter untrammelled by the order we have passed including the direction. The Sub Court shall pass fresh order in the matter within two weeks from 27.7.2011. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS