IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 CRP.No. 864 of 2008() ---------------------------------- CMA.102/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM IA. NO.4256/2007 IN OS.562/2007 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/PETITIONER/PLAINTIFF ------------------------------ M/S.SYNTHITE INDUSTRIAL CHEMICALS LTD. A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT AJAY VIHAR, M.G.ROAD, KOCHI-682016, ERNAKULAM VILLAGE, KANAYANNUR TALUK, REP. BY MANAGER (ADMN), JIJU VARGHESE, S/O. P.G.GEEVARGHESE, 36 YEARS, HOSPITALITY DIVISION OF M/S.SYNTHITE INDUSTRIAL CHEMICALS LTD. BY ADV. MR.C.T.JOSEPH RESPONDENT(S): RESPONDENTS/ RESPONDENTS/ DEFENDANTS 1 TO 3 -------------------------- 1. V.K.PURUSHAN, S/O.V.S.KRISHNAN, AGED 59 YEARS, SIVALAYAM, VELIYIL HOUSE, KUMBALAM, KUMBALAM VILLAGE, ERNAKULAM. 2. V.K.RAVINDRAN, S/O.V.S.KRISHNAN, 55 YEARS, KRISHNAKRIPA, VELIYIL HOUSE KUMBALAM, KUMBALAM VILLAGE, ERNAKULAM. 3. M.D.MOHANAN, S/O.DAMODARAN, 58 YEARS MUKKIL KATTIPARAMBIL HOUSE, KUMBALAM, KUMBALAM VILLAGE, ERNAKULAM. R1 – R3 BY ADVS. MR.N.RATHEESH, SMT.SUMA RATHEESH. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P No.864 OF 2008 -------------------------------- Dated this the 17th day of February 2010 ORDER Concurrent decision rendered by two inferior courts holding the petitioner, a company, engaged in hotel business, is not entitled to the decretionary relief of injunction is challenged in the revision invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. Petitioner is the plaintiff in O.S No.562 of 2007 on the file of the Sub Court, Ernakulam. The above suit is one for perpetual prohibitory injunction to restrain the defendants from trespassing upon or installing any constructions in the plaint schedule property or interfering with the possession and enjoyment of the same by the plaintiff company. Admittedly, the respondents, the defendants in the above suit, have filed another suit as O.S No.763 of 2007 seeking a decree of injunction against the defendant therein, the present petitioner company. That suit, filed as O.S No.763 of 2007 on the file of the Munsiff Court, Ernakulam, was transferred later to the Sub court, Ernakulam and renumbered as O.S No.784 of 2007 on the orders passed in a transfer petition filed before the District Court, Ernakulam. Both the suits are now being jointly considered by the learned Sub Judge, Ernakulam. An application moved by the petitioner company seeking an equitable relief identical to the relief C.R.P No.864 OF 2008 Page numbers canvassed in his suit, after hearing both sides, was dismissed by the learned Sub Judge. Challenge against the dismissal of that application for injunction before the District Court, Ernakulam was also turned down by the District Judge. Revision is against the dismissal of the application for injunction which was confirmed by the District Judge in appeal. 3. The petitioner company, at the time of institution of the suit was constructing a five star hotel in the property described in the plaint. The learned counsel for the petitioner submits that the construction is practically over and the hotel has already started functioning. Being a five star hotel constructed beside the Kumbalam lake, two floatels have been put up in the river after obtaining license from the concerned authorities. The case of the petitioner company in short is that the respondents claiming to be traditional fishermen, which is disputed by the plaintiff, with intend to coerce the company to meet their unlawful demands, are bent upon causing obstruction to the smooth functioning of the hotel. Plaintiff company alleged that in order to cause obstruction to its business activities, they made attempts to put up some constructions beside the floatels close to the plaint schedule property under the guise of putting up China nets for fishing, which is claimed as their vocation for livelihood as fishermen. On the other hand, the respondents contended that they are traditional C.R.P No.864 OF 2008 Page numbers fishermen who earn their livelihood by fishing engaging in connected activities of their vocation as fishermen. The constructions for fixing China nets has been in existence at the site close to the plaint property from decades before and they have been making use of it for the purpose of fishing was the case canvassed by the respondents. Both sides produced documentary evidence to substantiate their respective case. An advocate commissioner deputed by the court after conducting inspection also filed a report. The learned Munsiff after examining the materials produced and hearing the counsel on both sides was inclined to hold that the contentions raised by the defendants that they are traditional workmen and they have been using the constructions which are found close to the plaint property for putting up China nets prima facie tenable. In that view of the matter, the discretionary relief claimed by the plaintiff company for orders of injunction against the defendants was declined. On reappreciation of the materials produced and hearing the counsel as well, the Appellate court concurring with the view taken by the learned Munsiff confirmed the dismissal of the application for injunction. 4. I heard the counsel. Perusing the impugned order/judgment passed by the two inferior courts with reference to the submissions made, I find no interference in exercise of the revisional jurisdiction is called for. This court will be justified in C.R.P No.864 OF 2008 Page numbers interfering with the order/judgment only if it is shown that the orders of the court below suffered from such jurisdictional infirmity, which if not corrected is likely to result in miscarriage of justice. On the materials placed, both the courts have came to the conclusion that the plaintiff company is not entitled to the discretional relief of injunction canvassed for. The case set up by the defendants that they are traditional fishermen eaking their livelihood by fishing appeared to be more probable to the courts below. Needless to point out, the views and observations made by both the courts are tentative subject to final decision to be taken in the suit after affording reasonable opportunity to both sides to lead evidence in the case. I direct the learned Sub Judge to have an expeditious trial of both suits untrammelled by any of the observations made in its order or the judgment rendered by the appellate court. Considering the fact that the petitioner company has already started a five star hotel in the plaint schedule property, every endeavour has to be made to dispose both the suits as expeditiously as possible, but, after providing reasonable opportunity to both sides to lead evidence in support of their respective case. Subject to the above observations, the revision is closed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// vdv P.A TO JUDGE