IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 20028 of 2008(H) -------------------------- OS.29/2008 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: PLAINTIFF: -------------------------------------- SAINULABDEEN, AGED 44 YEARS, S/O.JAMAL MUHAMMAD, SABEEL MANZIL, CHULLIMANOOR, ANAD VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS RESPONDENTS: DEFENDANTS: ------------------------------------------------- 1. O.M.ABDUL RASHEED, AGED ABOUT 38 YEARS, S/O.ABDUL HAMEED, MANAGING DIRECTOR, HOTEL SAMANA TOWER, MANJERI, MALAPPURAM, RESIDING AT OTTAKATHU MANGARATHODY, HOUSE NO. 29/444, ARUKIYA DESOM, MANJERI VILLAGE, ERANAD TALUK, MALAPPURAM DIST. 2. K.M.ABDUL KAREEM, AGED ABOUT 57 YEARS, S/O.MUHAMMADAJI, MANAGING DIRECTOR, HOTEL CITY PLAZA (PVT) LTD, KATTAYATTUMADAM, HOUSE NO.IX/325, NELLIKKAPARAMBU KAKKAD, KOZHIKODE DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.20028 OF 2008 =========================== Dated this the 3rd day of July, 2008 JUDGMENT Petitioner instituted O.S.29/2008 during summer vacation before District Court, Thiruvananthapuram being the Vacation Court. It is a suit for specific performance of an agreement for sale which otherwise should have been filed before Sub Court. I.A.3642/2007 was filed to restrain respondents from alienating the property till the disposal of the suit. Ext.P2 order was passed by the Vacation Court on 26.12.2007, recording satisfaction of a prima facie case and balance of convenience in favour of petitioner and also finding that irreparable injury will be caused if an order without notice is not issued. An order of interim injunction was granted till 31.12.2007. Subsequently the order was extended by Sub Court, Thiruvananthapuram, which trying that suit. I.A.3692/2007 was filed by the petitioner for W.P.(C)20028/2008 2 extension of the order. Under Ext.P4 order dated 10.1.2008, the order of injunction granted earlier was extended upto 27.5.2008. On 23.5.2008 petitioner filed I.A.2407/2008 for extension of the order. On 27.5.2008, the day on which Ext.P4 order expired learned Sub Judge passed Ext.P5(a) order posting I.A.2407/2008 for objection and hearing to 29.8.2008. The order of injunction originally granted and extended was not further extended without recording any reason. On 31.5.2008 petitioner filed I.A.2628/2008 an application to advance I.A.2407/2008 which was adjourned to 29.8.2008. Learned Sub Judge under Ext.P6(a) order dated 4.6.2008, posted that application to 30.7.2008. This petition is filed under Article 227 of the Constitution of India to quash Ext.P5(a) and P6(a) orders and to direct Sub Judge to dispose Ext.P5 application. 2. Learned senior counsel appearing for petitioner was heard. 3. Under Ext.P2(a) order dated 26.12.2007 the W.P.(C)20028/2008 3 vacation court found that petitioner has a prima facie case and balance of convenience is in his favour and irreparable injury will be caused if no order is granted in his favour and thereafter granted an interim order of injunction till 31.12.2007. That order was thereafter extended till 27.5.2008. Respondent filed an objection to Ext.P2 application. As provided under Rule 3A of Order XXXIX, When an injunction has been granted without giving notice to the opposite side, court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable to do so, it should record reasons for the inability. When under Ext.P2(a) an ex parte order of injunction without notice was granted by the Vacation Court, learned Sub Judge, to whom the case was made over after reopening of the court, is bound to pass final order in that application as provided under Rule 3A of Order XXXIX, within thirty days from the date on which Ext.P2(a) order W.P.(C)20028/2008 4 was passed. Learned Sub Judge did not pass a final order and instead extended the order till 27.5.2008. Eventhough an application was filed for extension of that order, learned Sub Judge did not extent the order of injunction and posted that application to 29.8.2008. Inspite of the fact that petitioner filed an application to advance that petition, it was also posted to 30.7.2008. Learned Sub Judge has acted in violation of the mandatory provisions of Rule 3A of Order XXXIX of the Code. Even without an application for extension of order of injunction which was granted after recording a prima facie case and satisfaction of balance of convenience in favour of the petitioner and irreparable injury that will be caused, final order should have been passed. When there is already such an order, court should not have adjourned the case on 27.5.2008 without disposing the application on that day or extending the order of injunction granted earlier. The order of injunction earlier granted either should have been W.P.(C)20028/2008 5 vacated as provided under Rule 4 or court should have found that petitioner is not entitled to get extension of the order of injunction for reasons to be recorded. The action of the learned Sub Judge in not extending the order of injunction and adjourning the petition without passing a final order is illegal and irregular. In such circumstance, learned Sub Judge is directed to pass final order in Ext.P2 application (I.A.3642/2007) within three weeks from the date of receipt of a copy of this judgment. Respondents shall not alienate the property till then. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006