IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 FAO.No. 142 of 2011 ----------------------------- [AGAINST THE ORDER DATED 18/03/2011 IN I.A. NO.1102/2010 IN OS.NO.193/2010 OF SUB COURT, SULTHAN BATHERY] .................... APPELLANT/PETITIONER/DEFENDANT: -------------------------------------------------------- P.BALAN, S/O.SANKARAN, AGED 80 YEARS, EX-SERVICEMAN, RESIDING AT 'SUMITH', P.O.ERANHOLI, ERANHOLI AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN. RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- PARAYIDATHIL GEORGE, S/O.KURIAN, AGED 51 YEARS, DRIVER IN KERALA STATE ROAD TRANSPORT CORPORATION, VALAD AMSOM PORUR DESOM, P.O.VALAD, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN- 670 643. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.NO.142/2011: ORDER ON I.A. NO. 1455/2011 IN F.A.O. NO. 142/2011 DISMISSED SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE, 27/05/2011. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.142 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of May, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.We have heard learned counsel for the appellant quite in extenso on this appeal filed against the dismissal of an application for temporary injunction. The defendant filed the application for temporary injunction in a suit instituted for specific performance of an agreement for sale. The initial agreement is not disputed. Though we find from the impugned judgment that there are some controversies as to whether certain clauses in the revised agreements were manipulated and inserted, we mention it only for the purpose of continuity of facts and to note that the parties are at dispute on the fundamental question as to whether the plaintiff was given possession of the property. While the learned counsel for the appellant-defendant states that none of the agreements relied on by the plaintiff is registered and therefore, the plaintiff is not FAO142/11 -: 2 :- entitled to the protection of Section 53A of the Transfer of Property Act, we find that the defendant stands to state even before the court below that as per first agreement, the plaintiff was permitted to dig pits for planting rubber saplings. These factors would show that the disputed questions have to be decided on a full fledged trial. The impugned order has been issued on the basis of the documents placed on record by either side and report of the Advocate Commissioner. Oral evidence is yet to be recorded. 2.In an application by a defendant for temporary injunction against the plaintiff, the parameters for consideration would be fundamentally the preservation of property. The learned counsel for the appellant says that acts of waste cannot be committed. We are clear in our mind that it will be too premature to express anything without any material to indicate any attempt to commit waste. Obviously, it may be open to the appellant to move the court below for issuance of further commission to assess any alleged damage or waste, FAO142/11 -: 3 :- if so advised. The court below will pass appropriate orders in accordance with law in the event of any such application. Beyond that, we do not find any ground to interfere with the impugned order except to state that the court below has to decide the suit finally untrammelled by anything stated in the impugned order and in this judgment affecting the merits of the rival contentions between the parties. Let this exercise be carried out expeditiously since the materials tend to indicate that the disputed property lies near vested forests and it would not be in public interest that encroachments are made under the guise of this litigation. Subject to the aforesaid, this appeal is dismissed. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/0206