IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 FAO.No. 205 of 2005() --------------------- AGAINST THE ORDER DATED 03/08/2005 IN IA.NO.458/2005 IN OS.4/2004 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD .................... (S): APPELLANT/ISTRESPONDENT. -------------------------------------------- M.V.SATHYABHAMA, W/O.LATE K.V.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): APPLICANT AND RESPONDENTS. ----------------------------------------- 1. K.V.HAREESH, S/O.LATE K.V.KUNHAMBU, RESIDING AT KANICHIRA, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.THAIKADAPPURAM, KASARAGOD DISTRICT. 2. K.V.SATHEESHAN, S/O.LATE K.V.KUMNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. 3. K.V.PRAKASHAN, S/O.LATE K.C.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. 4. K.V.PRASAD,, S/O.LATE K.V.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. 5. K.V.SABITHA,S/O.LATE K.V.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. 6. K.V.LATHIKA, D/O.LATE K.V.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. FAO 205/05 -2- 7. K.V.VINOD, S/O.LATE K.V.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. 8. K.V.SANTHOSH, S/O.LATE K.V.KUNHAMBU, AKASH NIVAS, THERU, NILESHWAR P.O. KASARAGOD DISTRICT. 9. N.P.KUNHAHAMMED HAJI, S/O.RUKKIYA HAJJUMMA, SAKEENA MANZIL, KOTTAPPURAM, P.O.NILESHWAR, KASARAGOD DISTRICT. 10. ABDUL RAZAK, S/O.T.M.KUNHAMED HAJI, RESIDING AT PADNEKKAD, KANHANGAD VILLAGE, PANDKEKKAD P.O. KASARAGOD DISTRICT. 11. T.ASHRAF, S/O.ABDUL KHADER HAJI, THALAKKAL HOUSE, KOTTAPPURAM P.O. NELESHWAR, KOTTAPPURAM P.O. NILESHWAR, KASARAGOD DISTRICT. 12. K.MLOIDU, S/O.FATHIMA UMMA, PADNEKKAD P.O. KANHANGAD VILLAGE, KASARAGOD DISTRICT. 13. K.MARIYAM, W/O.MOIDU, PADNEKKAD P.O. KANHANGAD VILLAGE, KASARAGOD DISTRICT. 14. P.M.FAREEDA, W/O.E.ABOOBACKER, NILESHWAR BAZAR, P.O.NILESHWAR, KASARAGOD DISTRICT. 15. T VALAPPIL NARAYANI, W/O.RAMAN, ANCHAM THURUTHI P.O. CHERUVATHUR. 16. P.YESHODA, W/O.GOVINDAN, ANCHAMPTHURUTHI P.O. CHERUVATHUR. 17. T.KANNAN MASTER, S/O.CHIRUTHA, ACHAMTHURUTHI P.O. CHERUVATHUR VILLAGE. 18. PATARAVALAPPIL KUNHIKANNAN, S/O.KARICHI, ANCHAMTHURUTHI P.O. CHERUVATHUR VILLAGE. 19. KAVILEVALAPPIL VISHWAMBARAN, S/O.PANCHALI, ACHAMTHURUTHI P.O. CHERUVATHUR VILLAGE. 20. KAVILEVALAPPIL KRISHNAN, S/O.PANCHALI, FISHERIES INSPECTOR, ANCHAMTHURUTHI, CHERUVATHUR VILLAGE. FAO 205/05 -3- 21. P.BHASKARAN MASTER, S/O.KALYANI TEACHER, ANCHAMTHURUTHI, CHERUVATHUR VILLAGE. 22. P.CHANDRASEKHARAN, S/O.P.KUNHAMBU, RESIDING AT CHANDRAGIRI, SHIVA BHAG, KADRI IN MANGALORE. 23. VELIKOTH SHEREEF, S/O.BEEPATHUMMA, RESIDING AT KOTTAPPURAM IN NILESHWAR VILLAGE, HOSDURG TALUK. 24. PARAYANKAT GEORGE AUGUSTINE, S/O.AUGUSTINE, RESIDING AT PADNEKKAD, KANHANGAD VILLAGE, HOSDURG TALUK, P.O. PADNEKKAD. ADV. SRI.D.KRISHNAPRASAD SRI.M.HARISHARMA FOR R.1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NO.205 OF 2005 -------------------------------------------------------- Dated 23rd June 2009 Judgment BHAVADASAN, J. Aggrieved by the order dated 3.8.2005 in IA No.458/05 in OS No.4/04, the petitioner before the court below has come up in appeal. The parties are referred in this judgment as referred in the order passed by the court below. 2. The suit was one for partition. It appears that the plaintiff had filed IA No.458/05 seeking temporary injunction restraining respondents 1 to 8 from alienating the A schedule property during the pendency of the suit. It appears, respondents 2 to 8 had filed a counter affidavit. After considering the averments made in the application and the counter affidavit, the court below thought it fit to issue a temporary injunction. The said order is assailed in this appeal. 3. The learned counsel for the 1st respondent pointed out that the 1st respondent or his counsel had no notice of the application and therefore, the said respondent could not file any FAO 205/05 2 counter affidavit. It is contended that the suit was initially posted to 2.9.2005. Within a short time after the suit, the plaintiff seems to have filed an IA for temporary injunction. It is stated that the plaintiff sought for advancing the hearing of the suit. The application was posted to 30.07.2005. It is conceded by the appellant that his counsel had sought for time to file counter affidavit. It was adjourned to 1.8.2005. The contention is that on that day, they could not file the counter affidavit and the counsel for the appellant sought for some more time to file the counter. That prayer was rejected and the order was passed. 4. One fails to see how the impugned order would adversely affect the 1st respondent before the court below. The suit is one for partition. Even assuming there is no injunction, any alienation by the parties would be hit by the doctrine of lis pendens. Thus viewed, no grievance remains to be redressed in the appeal. In the result, the appeal fails and the FAO stands dismissed. The court below may dispose of the suit untramelled FAO 205/05 3 by any of the observations contained in the order at the interlocutory stage. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 205/05 4