IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 FAO.No. 42 of 2008() -------------------- AGAINST THE ORDER DATED 10/10/2007 IN IA. 2702/2007 IN OS.432/2007 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANTS/PETITIONERS --------------------- 1. JOSEPH, S/O.JOSE, KANICHAI HOUSE, VYNTHALA DESOM, PALAYAMPARAMBU P.O. KALLUR VADAKKUMURI VILLAGE, MUKUNDAPURAM TALUK. 2. TESSY JOSEPH, W/O.JOSEPH, KANICHAI HOUSE, VYNTHALA DESOM, PALAYAMPARAMBU P.O., KALLUR VADAKKUMURI VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.JACOB THOMAS SRI.VPK.PANICKER RESPONDENT: RESPONDENT/RESPONDENT ---------------------------------- VIJAYA MENON, S/O.AMMUKUTTY AMMA, ALAKKATT HOUSE, PALAYAMPARAMBU DESOM, KALLUR VADAKKUMURI VILLAGE, MUKUNDAPURAM TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 42 OF 2008 = = = = = = = = = = = = = = = DATED THIS, THE 8TH DAY OF FEBRUARY, 2008. J U D G M E N T Raman, J. This is an appeal against the order passed by the Additional Subordinate Judge, Irinjalakuda, dismissing I.A. 2702/2007 - an application for temporary injunction against the defendants from alienating or encumbering the petition schedule property. 2. The appellant is the plaintiff in the suit. The suit is one for specific performance. The suit is laid based on Ext.A1 agreement. In the said suit, the appellant filed the present application for an interim injunction restraining the defendants from alienating or encumbering the property, as stated earlier. The court below, after considering the prima facie case and also the balance of convenience, declined to grant the prayer. In this regard, reference is made to an earlier suit filed by the appellant as O.S. 158/2007 before the Munsiff's Court, Chalakudy, in which also he filed a similar application - I.A. 620/2007 claiming identical relief. In that suit, the Munsiff's court entered a prima facie finding that the appellant was not ready and willing to perform the contract. Reference was also made to the FAO 42/2008 :2: notice issued by the defendants. Exts.A1, B1 and A2 produced in the said suit are respectively, the sale agreement dated 21.10.2006, the copy of the lawyer notice issued by the defendants and the copy of the reply notice issued by the plaintiff.. The court entered a finding as per its order dated 20.6.2007 that based on EXts.A1, B1 and A2, which would show that the plaintiffs have defaulted the condition of the agreement in spite of demand on the side of the defendants. Further, till date, the plaintiff did not pay the amount or interest to prove his bona fide. Thereafter, the appellant challenged the said order in appeal. The counsel appearing for the appellant submits that the said appeal was dismissed as infructuous. The suit is still pending. 3. It is the contention of the appellant that there is change of circumstances brought out enabling to get an injunction as sought for in the present application. The prima facie finding of default on the part of the appellant is not a finding which would change by change of circumstances unless there are fresh materials to come to a different conclusion. True that the suit is pending and whatever prima facie finding entered by the court below will not ultimately stand in the way of the plaintiff proving otherwise by adducing cogent evidence. But certainly, while considering the application for temporary injunction, the court is entitled to take all FAO 42/2008 :3: these circumstances into consideration so as to consider as to whether the balance of convenience is in favour of the plaintiff or in favour of the defendant and whether the interim injunction should be granted or not. The court below, in such circumstances, exercised his discretion after taking into consideration the totality of the facts and circumstances of the case and declined to grant the prayer sought for. We do not find any reason to interfere with the order passed by the court below. There is no merit in this appeal. It is dismissed. We, however, make it clear that the observation of the court below and finding are only for the limited purpose of disposal of the interim application and shall not affect in any way the final disposal of the suit by the court below, which shall be based on the evidence adduced by the parties. Hence untrammelled by the observation made, the suit shall be disposed of by the court below. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-