IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 FAO.No. 42 of 2007() -------------------- OS.3/2004 of DISTRICT COURT, KAVARATHY .................... APPELLANT/PETITIONER/1ST DEFENDANT ------------------------------------------------------ KARIYAMCHETTA SYEDMOHAMMED, AGATTI. BY ADV. SRI.R.RAMADAS RESPONDENT(S): RESPONDENTS/5TH PLAINTIFF AND OTHERS --------------------------------------------------- 1. BEEPAPPADA ABDURAHMAN, S/O. THIRUVATHAPURA AHAMMED, AGATTI. 2. MOIDEENKAKKADA JAMALUDHEEN, S/O. BEEPAPPADA, ABDURAHMAN, AGATTI. 3. -DO- ADHHAM, S/O. BEEPAPPADA ABDURAHMAN, -DO- -DO- 4. BEEPAPPADA ADHHAM ALIAS SADIQUE, S/O. KADAPPURATHA ILLAM UMMER, AGATTI. 5. BEEPAPPADA, MIGDHAD, S/O. UMMAMMODA POOKUNHIKOYA, AGATTI. ADV. SRI.P.V.JYOTHI PRASAD FOR R1TO5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON 01/07/2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 42 OF 2007 -------------------------------------------------------- Dated 1st July 2009 Judgment RAMAN, J. The appellant is the first defendant in a suit for partition of the plaint D schedule property. In the written statement, he claimed exclusive right over the said property. Pending suit, IA No.95/05 was moved by him for a temporary injunction, restraining the plaintiff from trespassing into the plaint D schedule property, pending suit. The court below granted the injunction as prayed for against which an appeal as FAO No.285/05 was filed before this court. This court modified the injunction order, directing the parties to maintain status quo. Thus, the order of injunction that is now in force is to maintain status quo by both sides. While so, it was the contention that in violation of the status quo order, the plaintiff still trespasses into the plaint D schedule property. Hence the appellant moved an application under Order XXXIX Rule 2 CPC for appropriate direction. But, in the meantime, the plaintiff sought to withdraw FAO 42/07 2 the suit with liberty to file a fresh suit. That application and also the application filed under Order XXXIX Rule 2 were considered on the same day and since the plaintiff was allowed to withdraw the suit, the other application was also closed, stating that the question as to who was in possession of the property and whether there was any violation of the status quo order, could be decided in the suit and the suit having been disposed of, a definite finding could not be reached in this application, against which the present appeal is preferred. 2. It is true that ordinarily, an interim order may merge with the final relief granted in the main matter. But, there are exceptions. When there is an interim order passed and if there is any violation of that order by either of the parties, a complaint made thereto does not become infructuous by virtue of the disposal of the main matter. In this connection, it will be useful to refer to the decision of the Apex Court in Tayabbhai.M.Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. (AIR 1997 SC 1240) wherein it was held that when an order FAO 42/07 3 of injunction is flouted or disobeyed, though ultimately, the suit is dismissed, the defendant can be punished for violation of the said order. The said decision of the Apex Court was followed by this Court in Aravindaksha Menon v. Raghava Menon (2007(2) KLT 427). In the case on hand, the violation complained of being of an order, which was in force, the complaint could be deferred for consideration for good reason till the main issue is decided. True that regarding possession, better evidence would be available in the suit. Perhaps, in such a situation, there would be a justification to defer the consideration of the complaint until the disposal of the suit, but once the suit itself having been disposed of, permitting to withdraw the same, that cannot automatically make the complaint application infructuous. In such a situation, the only course open to the court is to take independent evidence in the application for the limited purpose of deciding as to whether there was any violation of the order by either of the parties. In that view of the matter, we find that there is force in the contention of the appellant that the order passed by the court below suffers from material irregularities. FAO 42/07 4 Accordingly, the appeal is allowed. The order passed by the court below is set aside and the matter is remanded for fresh consideration in accordance with law. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 42/07 5