IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 20253 of 2009(R) -------------------------- OP.1829/2008 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------- MOHAMMED HUSSAIN, 50 YEARS, S/O.ABDULLAKUTTY, MANATH THOPPIL HOUSE, (MARAKKATTIL HOUSE) THRIKKAKARA P.O., KAKKANAD, ERNAKULAM. REP.BY P/A HOLDER SRI.M.A.ABDUL LATHEEF, MURUKKATTIL HOUSE, KUTTIKKATTUKARA P.O., PUTHALAM, ERNAKULAM. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SMT.RAMEENA.P.K. SMT.C.B.ANUROOPA SRI.T.U.ZIYAD SMT.C.B.ANUROOPA RESPONDENT(S): --------------- MRS.HAFSA, D/O.LATE IBRAHIM, MANATH THOPPIL HOUSE, THRIKKAKARA P.O., KAKKANAD, ERNAKULAM. ADV. SRI.T.G.RAJENDRAN SRI.K.S.FRIJO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 20253 of 2009-R ------------------------------------------------- Dated this the 16th day of June, 2010 JUDGMENT Basant,J. The husband is the petitioner in this writ petition. He assails Ext.P9 interim order passed by the Family Court, Ernakulam, as the same is not an appealable order under Sec.19 of the Family Court Act. 2. The respondent is the wife of the petitioner. There is a property acquired in the joint name of the petitioner and the respondent. It is submitted that the said acquisition was during the currency of the marriage. The petitioner filed O.P.No. 1829/08 before the Family Court, Ernakulam, claiming partition of his half rights in the property. The wife, it is submitted, is resisting the claim for partition with the plea that the entire funds for the purchase was invested by her and the petitioner W.P.(C) No. 20253 of 2009 -: 2 :- has actually no rights whatsoever in the property, he having contributed no amount for the purchase. 3. Be that as it may, it is not necessary for us to embark on the details of the said dispute. The petitioner filed an application Ext.P7 for issue of a temporary mandatory injunction to the respondent to keep open the two doors in the first floor i.e., one to out side and the other to the balcony allowing free ingress and egress to the petitioner. 4. The wife resisted the claim. She contended that the attempt of the petitioner was to induct undesirable elements into the first floor with an obvious intention to vex and harass her. The wife asserted that the petitioner being her husband, she has no objection in her husband the co-owner using the property provided he would enter through the front door during day time and shall not induct any other person into the building or permit user of the building by them. 5. The court below by the impugned order, a copy of which is produced as Ext.P9, dismissed the application after recording the submission of the respondent that the petitioner can come through the front door during day time into the building and the respondent has no objection against the same. W.P.(C) No. 20253 of 2009 -: 3 :- 6. This petition was filed as early as in July 2009. Sufficient time has been granted to the parties to work out a harmonious settlement. Parties have not been able to work out such a settlement. Admittedly, the petitioner is employed abroad. There is no question of any need on his part to enter the building now for his own occupation or use. The learned counsel for the petitioner submits that the petitioner wants other close relatives to reside in the building. Admittedly, no one is so residing now. In these circumstances, we are of the opinion that the ideal course to be followed by this Court now is to direct the Family Court, Ernakulam, to dispose of O.P.No.1829/08 as expeditiously as possible and not disturb the impugned Ext.P9 order now. 7. In law, the position is very clear. The spouses are co- owners in respect of a property. It is a residential property including a residential building. The respondent/wife is admittedly residing in the property. There is nothing to show that she has any other residential building for her convenient occupation. The petitioner is employed abroad and does not actually need the petition schedule building for his occupation now. Moreover, the respondent has raised no objection against W.P.(C) No. 20253 of 2009 -: 4 :- the petitioner alone entering the house through the front door during day time. One co-owner is certainly entitled to insist that the other co-owner should not use the property owned jointly by them in such a manner as to cause difficulties, inconvenience and hardship to him. Use by the petitioner is not objected to. But the respondent insists that no other person claiming under the petitioner should enter the house and interfere with her possession and enjoyment as a co-owner till the disposal of the suit. The respondent is well within her rights to make such insistence. Moreover, we are satisfied that it is absolutely equitable and just to accept the said stand of the respondent. We are not, in these circumstances, persuaded to interfere with Ext.P9 order. 8. In the result: (a) This writ petition is dismissed. (b) Ext.P9 order is upheld. (c) The court below is directed to dispose of O.P.No.1829/08 pending before it as expeditiously as possible - at any rate, within a period of one year from this date. 9. Compliance shall be reported to this Court. Needless to say, no observations in the impugned order or this judgment W.P.(C) No. 20253 of 2009 -: 5 :- shall in any way fetter the rights of the petitioner to raise all appropriate and relevant contentions before the Family Court when the O.P. is taken up for disposal. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge W.P.(C) No. 20253 of 2009 -: 6 :-