IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 FAO.No.108 of 2010 (D) --------------------------- AGAINST THE ORDER DATED 18/11/2009 IN IA 4091/09 IN OS.70/2009 of ADDL.SUB COURT, THALASSERY .................... APPELLANT/RESPONDENT IN I.A./DEFENDANT IN O.S. ------------------------------------------------------------ KALATHUMKANDI MURIKKOLI GIRIJA, D/O.KRISHNAN NAMBIAR, MUZHAKKUNNU AMSOM, PALA DESOM. BY ADV. SRI.R.PARTHASARATHY SRI.C.JAYACHANDRAN RESPONDENT(S): PETITIONER IN I.A/PLAINTIFF IN O.S. -------------------------------------------------------------- POILAN LATHEEF, S/O.ABDULLA, MUZHAKKUNNU AMSOM, DESOM, THROUGH P.A.HOLDER V.HAMZA, S/O.AHAMMED KUTTY HAJI, VAMBAN HOUSE, KAKKAYANGAD P.O. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ F. A. O. No.108 of 2010 ------------------------------------------------ Dated this the 9th day of April, 2010 JUDGMENT Pius C. Kuriakose, J Under challenge in this FAO filed by the defendant in the suit who was the respondent in an interlocutory application for temporary injunction filed by the plaintiff is the order of the learned Subordinate Judge granting injunction subject to certain observations. The injunction granted is an injunction restraining the appellant from committing 'any waste in the plaint schedule property and from putting up structures by burdening the plaint schedule properties with substantial construction works'. In fact, elsewhere F. A. O. No.108 of 2010 -2- in the impugned order an observation in the following line is made by the learned Sub Judge:- “The respondent has got every right to make necessary repairs of the house till the handing over of the property and all other structures as per the sale agreement, if so ordered by the Court.” On considering the appeal for admission, we enquired of the learned counsel for the appellant as to why the appellant should be aggrieved by the impugned order. The learned counsel submitted before us that the appellant has no intention to commit any acts of waste. While reiterating before us that the appellant has no grievance regarding the order of injunction restraining commission of waste, the counsel submitted that construction of two additional F. A. O. No.108 of 2010 -3- rooms in the first floor of the building in question is more than half way through and unless necessary clarifications are issued by us, the impugned injunction order may stand in the way of the appellant being able to put up roofs for those rooms. It was in view of the above submission that we issued notice to the respondent by special messenger. Even though, the respondent has been served with notice, he has not entered appearance before this Court to resist the request of the appellant. We accept the submission of Mr.C.Jayachandran that the construction of the two rooms in the first floor of the building in question is nearing completion and modify the impugned order to the extent of permitting the appellant to put up roofs for those F. A. O. No.108 of 2010 -4- rooms. In all other respects, the impugned order will stand confirmed. The appeal is allowed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-