IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 2213 of 2005(L) -------------------------------- CMA.338/2003 of D.C.& SESSIONS COURT,THODUPUZHA .................... PETITIONER(S): -------------------- 1. M/S. KARIKODE RUBBERS LTD., REPRESENTED BY ITS MANAGING DIRECTOR, MR.TOM K.THOMAS, KOTTUKAPPALLY HOUSE, LALAM KARA, LALAM VILLAGE, PALA. 2. THOMAS MATHEW, KOTTUKAPPALLY HOUSE, LALAM KARA, LALAM VILLAGE, PALA. 3. DEEPAK MATHEW, KOTTUKAPPALLY HOUSE, C.B.I.COURT LANE, ERNAKULAM, REPRESENTED BY HIS POWER OF ATTORNEY, MR.THOMAS MATHEW. 4. THOMAS CHANDY, KOTTUKAPPALLY HOUSE, CONVENT ROAD, ERNAKULAM. 5. LISA CHANDY, KOTTUKAPPALLY HOUSE, CONVENT ROAD, ERNAKULAM. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE ADV. SRI.MATHEWS K.UTHUPPACHAN RESPONDENT(S): -------------------- VELLIMATTOM BHAGAVATHY (SREEDEVU) TEMPLE, REPRESENTED BY ITS PRESIDENT MR.V.R.RAJESH VENDAKKUNNEL HOUSE, ELAM DESOM P.O., ALAKODE, THODUPUZHA. BY ADVS. SRI.P.R.VENKETESH SRI.P.C.CHACKO(PARATHANAM) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2011, ALONG WITH WPC NO. 5279 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 2213/2005 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF O.S. NO.209/2003 BEFORE THE MUNSIFF COURT, THODUPUZHA DATED 20/08/2003. P2: COPY OF DOCUMENT NO.1206 OF 1081 M.E. OF THODUPUZHA SUB REGISTRY OFFICER. P3: COPY OF WRITTEN STATEMENT DATED 20/09/2003 FILED BY THE PETITIONERS IN O.S. NO.209/2003. P4: COPY OF I.A. NO. 1174/2003 FILED BY THE RESPONDENT IN O.S.NO.209/2003 DATED 20/08/2003. P5: COPY OF COUNTER AFFIDAVIT DATED 01/09/2003 FILED BY THE PETITIONERS IN I.A. NO.1174/2003. P6: COPY OF ORDER DATED 07/10/2003 OF THE MUNSIFF COURT, THODUPUZHA IN I.A. NO.1174/2003. P7: COPY OF C.M.A. NO.338/2003 BEFORE THE DISTRICT COURT, THODUPUZHA. P8: COPY OF CERTIFIED COPY OF JUDGMENT DATED 17/06/2004 OF THE DISTRICT COURT, THODUPUZHA IN C.M.A. NO.338/2003. P9: COPY OF DOCUMENT NO. 1395/2003 DATED 11/08/2003. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. ------------------------ W.P.(C).Nos.5279/2006 & 2213/2005 ---------------------- Dated this the 14th day of June, 2011. J U D G M E N T The plaintiff in O.S.No.209/2003 on the file of the Munsiff Court, Thodupuzha, is the petitioner in W.P.(C).No.5279/2006. Suit was filed for permanent prohibitory injunction to restrain the respondents/defendants from committing any waste in the plaint schedule property or inducting strangers of doing anything inconsistent with the plaintiff's jenm right in the property. The defendants claimed fixity of tenure. The plaintiff contended inter alia that the the property being a leasehold property, the plaintiff is exempted from the provisions of the Kerala Land Reforms Act. The learned Munsiff by order dated 6.12.2005 considered the contentions of the respective parties. The court, by the order under challenge marked as Ext.P2, ordered that the question of fixity of tenure has to be referred to the Land Tribunal as per Section 125(3) of the Kerala Land Reforms Act. This order is under challenge in W.P.(C).No.5279/2006. 2. The questions raised by the plaintiff are covered by the decision of the Full Bench of this Court in RT.REV.Dr.Jerome Fernandez v. BE BE Rubber Estate Ltd. ::2:: W.P.(C).Nos.5279/2006 & 2213/2005 [1972 KLT 613 (F.B)]. After referring to Section 3(1)(viii) of the Kerala Land Reforms Act, the Full Bench of this Court held that the intention of the legislature was to restrict the scope of the exemption to leases of land which were already “plantations” on the date of the transactions. The contention of the plaintiff that whether in a suit for injunction of the present nature, issue regarding tenancy would “arise”, was also considered by this Court vide judgment dated 9.9.2010 in W.P.(C).No.8556/2010. Following the principles laid down in the said decision, on the facts of the case and in the nature of injunction prayed, the issue of tenancy and fixity of tenure raised by the petitioner did genuinely “arise” for a decision. 3. In these circumstances, the decision taken by he learned Munsiff, referring the question to the Tribunal as per Section 125(3) of the Kerala Land Reforms Act, suffers from no legal infirmity. 4. The connected W.P.(C).No.2213/2005 was filed by the defendants in O.S.No.209/2003 challenging Ext.P8 judgment dated 17.6.2004 in C.M.A.No.338/2003 on the file of the Additional District Court, Thodupuzha. Along with the suit, the ::3:: W.P.(C).Nos.5279/2006 & 2213/2005 plaintiff filed I.A.No.1174/2003 for an interim injunction to restrain the defendants from committing acts of waste in the suit property, from inducting strangers in possession of the property or from doing anything inconsistent with the plaintiff's jenm right in the property. The trial court granted interim injunction as prayed for. Subsequently, after hearing both sides, the trial court passed Ext.P6 order dated 7.10.2003, vacating the interim injunction granted on 21.8.2003. The plaintiff in the suit preferred C.M.A.No.338/2003 before the Additional District Court, Thodupuzha. The lower appellate court, after considering the contentions of the parties on merits, held that the plaintiff has got a prima facie case and granted an order of interim injunction. Ext.P8 is the order passed by the appellate court allowing the appeal. The appellate court restrained the defendants from committing acts of waste in the plaint schedule property or inducting third parties in possession of the property or alienating or encumbering the property till the disposal of the suit. Ext.P8 judgment passed by the Additional District Court, Thodupuzha, is challenged in W.P.(C).No.2213/2005. 5. The writ petition was filed in the year 2005. Ext.P8 ::4:: W.P.(C).Nos.5279/2006 & 2213/2005 order of injunction is in force till date. Ext.P8 judgment was passed by the court after considering the facts, circumstances and evidence and concluded that the plaintiff has got a prima facie case to obtain an interim relief. It is the plaintiff's case that he is entitled to resume possession of the plaint schedule property after the expiry of the lease period on 17.4.2005. The appellate court, in Ext.P8 judgment, therefore observed that if actually the plaintiff is entitled to resume possession of the plaint schedule property on termination of the lease arrangement, it is only appropriate that the subject matter of the suit is kept in tact without inducting strangers or committing acts of waste therein. In view of the above said facts and for the reason that the interim injunction passed in 2005 is continued for all these years, I do not find any reason to interfere with Ext.P8 judgment at this stage. 6. In the facts and circumstances of the case, the only direction that can be issued is to direct the trial court to expedite the trial and disposal of the suit, as early as possible. ::5:: W.P.(C).Nos.5279/2006 & 2213/2005 For the aforesaid reasons, petitioners in both writ petitions are not entitled to any reliefs. Therefore, the writ petitions are dismissed. The trial court shall dispose of the suit, as early as possible. HARUN-UL-RASHID, Judge. bkn/-