IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 WP(C).No. 17290 of 2008(G) -------------------------- AGAINST THE ORDER DATED / / IN IA.473/2008 IN AS.43/2008 of SUB COURT, PERUMBAVOOR .................... PETITIONER: ------------ 1. RAJESH.V.G., S/O.GOVINDAN, AGED 45 YEARS, VAZHAYILVEETIL, PERUMBAVURKARA, PERUMBAVUR VILLAGE. 2. RENJITH, S/O.GOVINDAN, REPRESENTED BY POWER OF ATTORNEY V.G.SANTHOSH, S/O.GOVINDAN, AGED 42 YEARS, VAZHAYILVEETIL, PERUMBAVURKARA, PERUMBAVUR VILLAGE. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: ----------------- 1. MOHAMMED RAFEEQUE ALIAS MOIDU.A, S/O.MAMMOOTTY MILL HOUSE, PERUMBAVOOR. 2. PERUMBAVOOR MUNICIPALITY REPRESENTED BY ITS SECRETARY, PERUMBAVOOR. 3. AISHA, W/O.LATE B.M.MAMMOOTTY MILL HOUSE, PERUMBAVOOR. 4. SHAHEED, S/O.B.M.MAMMOOTTY, MILL HOUSE, PERUMBAVOOR. BY ADV. SRI.G.RAJAGOPAL (R1) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.17290 of 2008 ------------------------------- Dated this the 10th June, 2008. J U D G M E N T Petitioners are the appellants in A.S.No.43/2008, on the file of the Sub Court, Perumbavoor. They are the plaintiffs in O.S.No.301/2004, on the file of the Munsiff Court, Perumbavoor. Appeal is filed challenging the dismissal of the suit. In the appeal, petitioners filed I.A.No.473/2008, an application under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction, till the disposal of the appeal. It was rejected under Ext.P8 order. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for petitioners and the learned counsel who took notice for the first respondent were heard. 3. The argument of the learned counsel appearing for the petitioners is that throughout the pendency of the suit, there was W.P.(C) No.17290/2008 2 an order of temporary injunction, till the disposal of the suit, and after the dismissal of the suit, there was an order to maintain status quo passed by the trial court, and thereafter under Ext.P7 order, and in such circumstances, learned Sub Judge should have granted an order of temporary injunction or at least an order to maintain status quo, and therefore, Ext.P8 order is to be quashed. 4. On hearing the argument of the counsel for the petitioners and on going through Ext.P8 order, I do not find any reason to interfere with the said order in exercise of the powers of this Court under Article 227 of the Constitution of India. Though an order of temporary injunction was originally granted in favour of the petitioners, trial court after elaborate consideration of the evidence on record, found that petitioners are not entitled to the decree sought for. Suit was dismissed. Even though judgment is challenged in A.S.No.43/2008, unless there is prima facie finding that judgment is not sustainable, First appellate court could not have granted an order, as against the successful party in that suit, for the reason that an appeal is pending. In such circumstances, the petition was dismissed. I do not find any illegality or irregularity in the order. Writ Petition is W.P.(C) No.17290/2008 3 dismissed. The learned Sub Judge is directed to dispose A.S.No.43/2008 as expeditiously as possible. It is made clear that if ultimately the appeal is to be allowed, any construction made by the petitioners pursuant to Ext.P8 order is liable to be removed. M.SASIDHARAN NAMBIAR, JUDGE nj.