IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 OP(C).No. 3007 of 2011(O) ------------------------- IA NO.4660/2011 IN OS NO.............OF 2011 of DISTRICT COURT, ERNAKULAM (VACATION COURT) .................... PETITIONER (S): -------------------- DR.V.K.UMA DEVI,(RETIRED PROFESSOR) AGED 62 YEARS,W/O.DR.G.GANGADHARAN NAIR, SIVAGANGA,TRIPUNITHURA. BY ADV. SRI.K.P.SREEKUMAR SRI.V.K.GANGADHARAN RESPONDENT(S): --------------- USHAKUMARI, W/O.O.G.SASIDHARAN,AGED 49 YEARS, VADAKKE MALIYEKKAL HOUSE, KAIPPATTOOR, PIN 682 313. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.3007/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1. TRUE COPY OF THE SALE DEED NUMBER 807 OF 2010 OF THE SUB REGISTRY OFFICE, MULANTHURUTHY. EXHIBIT P2. TRUE COPY OF THE RECIEPT DATED 30.3.2010 EVIDENCING THE PAYMENT ISSUED BY THE KANAYANOOR CO-OP. AGRI.&RURAL DEV.BANK LTD. EXHIBIT P3. TRUE COPY OF THE RECIEPT ISSED FROM THE VILLAGE OFFICE, KAIPPATTOOR ON 30.6.2010. EXHIBIT P4. TRUE COPY OF THE INJUNCTION ORDER DATED 15.9.2011 IN I.A 5660/2011 IN O.S PASSED BY THE DISTRICT JUDGE, ERNAKULAM. EXHIBIT P5. TRUE COPY OF THE INJUNCTION ORDER DATED 15.9.2011 IN I.A 4660/2011 IN O.S PASSED BY THE DISTRICT JUDGE, ERNAKULAM. EXHIBIT P6. TRUE COPY OF THE APPLICATION FOR INJUNCTION I.A 4660 OF 2011 AND THE AFFIDAVIT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3007 of 2011 -------------------------------------- Dated this the 20th day of September, 2011. JUDGMENT 1st defendant in an un-numbered suit of 2011 of the Vacation Court (the District Court, Ernakulam) and a respondent in I.A.No.4660 of 2011 who was suffered Ext.P5, exparte interim order of injunction against alienation and encumbering the suit property challenges the said order invoking Article 227 of the Constitution of India. Respondent filed the suit in the Vacation Court seeking various reliefs with respect to the suit property. A copy of the plaint, it is submitted by learned counsel has not been served on the petitioner, nor is it produced before me and hence I am unable to say what exactly the reliefs respondent has claimed in the suit. But, going by Ext.P6 (copy of I.A.No.4660 of 2011) it would appear that she has a contention that the sale deed in question was executed in the name of petitioner in connection with a loan transaction and as per the averments in paragraph 7 of the affidavit, that notwithstanding execution of the sale deed she claims to be in possession of the property. She apprehended that petitioner might transfer the property or encumber the same and hence prayed for injunction against doing so. The Vacation Court found a prima facie case, balance of convenience, etc. in favour of the respondent and granted exparte interim order of injunction. 2. Learned counsel for petitioner has contended that Ext.P5, order is OP(C) No.3007/2011 2 ex facie illegal and without jurisdiction. It is contended that it is admitted by the respondent also that a registered sale deed was executed in favour of petitioner and petitioner was given possession of the property. It is pointed out by learned counsel from the copy of sale deed in question that the said document does not contain any provision for re-conveyance of the property as (may be) contended by the respondent and that when there is a completed sale in favour of the petitioner, the Vacation Court ought not have granted an interim order of injunction particularly without notice to the petitioner. It is pointed out by the learned counsel that though there are other alternative remedies available to the petitioner by filing appeal against the impugned order or preferring objection to the application for injunction in the trial court, the hands of this Court are not tied by such alternative remedies and this Court is entitled and required to grant relief in such circumstances, in exercise of the power under Article 227 of the Constitution. Learned counsel has placed reliance on the decisions in Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan and another ((2002) 5 SCC 760, Kokkanda B. Poondacha v. Ganapathi (2011 (1) KLT SN.106 (Case No.150)) and Manoj v. Guruvayoor Devaswom(2011 (2) KLT 1022). 3. There are two remedies available to the petitioner – an appeal against Ext.P5, order to the court to which appeal would lie from the judgment and decree that may be passed in the case (be it the District Court which as the OP(C) No.3007/2011 3 Vacation Court granted the interim order of injunction) and/or file objection in answer to the application for injunction. The question is whether, when such remedy is available, this Court is required to straight away exercise the power under Article 227 of the Constitution. In Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan and another the Supreme Court states the circumstances under which the trial court would be justified in granting interim order of injunction. It states about existence of prima facie case, balance of convenience and irreparable loss and injury if injunction is not granted. The decision in Kokkanda B. Poondacha v. Ganapathi deals with the supervisory power of this Court under Article 227 of the Constitution and the restrictions which this Court should bear in mind while exercising that power. The decision in Manoj v. Guruvayoor Devaswom ofcourse stated that when the order of injunction passed by the trial court is per se illegal it can be challenged under Article 227. But I must bear in mind that in the said case, a third party who was not a party to the proceeding and affected by the order of injunction approached this Court for relief under Article 227 of the Constitution and this Court holding that the order is ex facie illegal interfered. 4. I am inclined to think that the decisions must apply to the facts of the case. As seen from paragraph 7 of the affidavit of the respondent in support of the application for injunction she has a case, right or wrong, that notwithstanding the assignment deed she continues to be in possession. As OP(C) No.3007/2011 4 aforesaid, a copy of the plaint is not produced in this Court. But, what is discernible from the averments in the affidavit in support of the application for injunction is that the assignment deed was executed in connection with a loan transaction. I am not inclined to think that on the facts and circumstances this Court should straight away interfere with the impugned order under Article 227 of the Constitution when alternative remedies are available to the petitioner. 5. I do not intend to go into the correctness or otherwise of the order or to the merit of the case pleaded by petitioner since that may have a bearing on the decision on the proceeding that may be moved by petitioner and hence I refrain from doing so. Having heard learned counsel and considered the relevant aspects I am not inclined to think that this Court should invoke the power under Article 227 of the Constitution at this stage. Petitioner has to be left to the proper remedy that she has under law. But, having regard to the grievance of the petitioner I direct the court concerned which entertains the challenge to the impugned order to dispose of such challenge as early as possible ofcourse, after hearing both sides on the question. With the above direction, this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks