IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 OP(C).No. 3826 of 2011(O) -------------------------------------- I.A.1789/2007 IN O.S. NO.390/2007 OF SUB COURT, ALAPPUZHA. .................. PETITIONER/APPELLANT/PLAINTIFF ----------------------------------------------------- R. SOMANATHA RAO, (76), S/O.RAMACHANDRA RAO, KARADI THEKKE MADOM, AMBALAPUZHA VILLAGE, ALAPPUZHA. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENTS/RESPONDENT/DEFENDANTS ------------------------------------------------------------------- 1. N. SELVI, W/O.P. SUDHAKAR, AGED ABOUT 46 YEARS, T.C.NO.17/2123, HOUSE NO.S. 410, DR.PAIS ROAD, POOJAPPURA, THIRUVANANTHAPURAM. 2. R. NAGENDRA RAO, (78), T.C.NO.17/2123, HOUSE NO.S.410, DR.PAIS ROAD, POOJAPPURA, THIRUVANANTHAPURAM. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3826 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT-P1: TRUE COPY OF THE PLAINT IN OS 390/07 DT: 19-10-07 OF THE SUB COURT, ALAPPUZHA. EXT-P2: TRUE COPY OF THE ORDER OF THE SUB COURT IN I.A.1789/07 DATED 04-03-2009. EXT-P3: TRUE COPY OF THE ORDER OF THE DISTRICT COURT, ALAPPUZHA IN CMA.10/09 DATED 29-09-2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3826 of 2011 --------------------------------------- Dated this 24th day of November, 2011 JUDGMENT Petitioner is the plaintiff in O.S.No.390 of 2007 of the Court of learned Sub Judge, Alappuzha. That was a suit filed by petitioner for a declaration that document referred to in the plaint was executed as security for a money transaction he had with the 1st respondent, the same did not confer any right, title, interest and possession to the first respondent over the suit property and for consequential relief of injunction. In that suit petitioner filed I.A.No.1789 of 2007 for an order of temporary injunction. The trial court did not find a prima facie case in favour of petitioner and dismissed the application. Petitioner challenged that order before learned District Judge, Alappuzha in C.M.A.No.10 of 2009. Learned District Judge by Ext.P3, judgment took the view that the suit itself is barred by limitation since it is filed on 23.10.2007 as the request is to declare a document of the year 1982 as executed for security. Learned District Judge also directed the learned Sub Judge to dispose of the suit within a period of one month from the date of receipt of a copy of judgment. Ext.P2, order of the learned Sub Judge as O.P(C).No.3826 of 2011 -: 2 :- confirmed by the learned District Judge in Ext.P3, judgment is under challenge. 2. Learned counsel has contended that apart from correctness of Ext.P2, order and Ext.P3, judgment the Courts below have travelled beyond the scope of a decision on I.A.No.1789 of 2007 in making observations as if the suit is not maintainable on account of limitation and that too, based of factual mistakes. It is submitted by learned counsel that in an application for injunction what the Courts below were concerned was only whether petitioner has a prima facie case, whether irreparable loss and injury will be caused to the petitioner if injunction is not granted and on whose side the balance of convenience was. On the other hand, learned Sub Judge has made unnecessary observations in Ext.P2, order touching upon the conduct of petitioner in filing the suit and learned District Judge went a step further to say that the suit itself is not maintainable which was pending consideration before learned District Judge. It is contended that the C.M appeal is not continuation of the suit so that learned District Judge could have made any observation in the C.M appeal concerning maintainability of the suit which will certainly have a bearing on the decision which the trial court has to take and that too, directing disposal of the suit within one month from the date of O.P(C).No.3826 of 2011 -: 3 :- receipt of a copy of Ext.P3, judgment without giving opportunity to the petitioner to adduce evidence. Learned counsel submitted that the counsel who was engaged in the trial court to prosecute the suit has relinquished vakalath for the reason that in view of the direction made by learned District Judge for time bound disposal, he had no time to prepare the brief and prosecute the case. On merit, it is contended that the decision of the courts below are erroneous. The litigation arose from a document styled as a sale deed executed in favour of the first respondent which according to the first respondent is a sale deed pure and simple while according to the petitioner, that document was executed merely as a security of `.30,000/- he had borrowed from the first respondent, with an agreement between the parties that on repayment of the amount, property will be reconveyed to the petitioner. It is in the above circumstances, petitioner sought declaration that the sale deed in question is only a security for the money transaction. 3. As rightly pointed out by the learned counsel, learned District Judge was not considering an appeal from the judgment and decree in the suit so that learned District Judge could have gone into the question whether the suit itself is maintainable and enter a finding either way. It was therefore unnecessary for the learned District Judge to have entered a finding that the suit is O.P(C).No.3826 of 2011 -: 4 :- barred by limitation. Learned counsel also pointed out that learned District Judge proceeded on the basis that the suit was filed on 23.10.2007 but actually it was presented on 19.10.2007. I am inclined to think that observations made by the learned Sub Judge and the learned District Judge while disposing of C.M appeal and I.A.No.1789 of 2007 to the extent it did not concern the question of prima facie case, irreparable loss and injury and balance of convenience was unnecessary. I make it clear that trial court has to dispose of the suit based on the pleadings before it and the issues framed, untrammelled by any observation contained in Ext.P2, order or Ext.P3, judgment. 4. Now coming to the finding of the trial court regarding the existence of a prima facie case - first respondent filed R.C.P.No.5 of 2003 before the Rent Control Court, Alappuzha seeking eviction of petitioner from the building in the suit property on various grounds under Sec.11 of Act 2 of 1965. In defence, petitioner denied title of the first respondent on the grounds above stated. The Rent Control Court found that there is bonafide denial of title and relegated parties to the civil court. First respondent challenged that order before the appellate authority in R.C.A.No.29 of 2006. That appeal was allowed and the Rent Control Court was decided to decide R.C.P.No.5 of 2003 on the grounds for eviction pleaded by the first respondent. O.P(C).No.3826 of 2011 -: 5 :- Petitioner challenged judgment in R.C.A.No.29 of 2006 in R.C.R.P.No.145 of 2007 but, without any success. Thereafter the Rent Control Court ordered eviction on the grounds pleaded by the first respondent. That was challenged in appeal at the instance of petitioner but, again without success. I am told that judgment of the Rent Control appellate authority is under challenge in this Court in R.C.R.P.123 of 2011 and this court has granted a stay of the eviction proceeding. It was finally heard on 26.06.2011. 5. Going back to the case pleaded by petitioner requesting for injunction, as it is there is a document styled as a sale deed in favour of the first respondent and until the plea raised by petitioner is accepted, that has to remain. In the Rent Control proceeding it has been found that denial of title is not bonafide. I do not find reason to interfere with refusal of the Courts below to grant injunction on I.A.No.1789 of 2007, in exercise of supervisory power under Art.227 of the Constitution in so far as it was within the power of the courts below to enter a finding that petitioner is not entitled to get injunction as prayed for in I.A.No.1789 of 2007. Therefore, I do not find reason to interfere with the ultimate dismissal of I.A.No.1789 of 2007. 6. It is submitted by learned counsel that O.S.No.390 of 2007 is posted for trial in the list on 28.11.2011 (in view of the O.P(C).No.3826 of 2011 -: 6 :- directions which learned District Judge has made for disposal of the case). I also referred to the inconvenience of petitioner on account of his counsel relinquishing engagement as the counsel was not able to prepare the brief within a short time. Learned counsel requested that the trial scheduled on 28.11.2011 may be adjourned so that petitioner could prepare for conducting the case. 7. Having regard to the above circumstances, I am inclined to think that the trial scheduled to be held on 28.11.2011 has to stand adjourned to a convenient day. Hence, learned Sub Judge is directed, notwithstanding the observations contained in Ext.P3, judgment, to adjourn the trial of the case to a day after 15.12.2011. Resultantly this original petition is disposed of with a direction to the learned Sub Judge to adjourn the trial of O.S.No.390 of 2007 to a day after 15.12.2011. Learned Sub Judge shall dispose of the suit untrammelled by any observation contained in Ext.P2, order or Ext.P3, judgment. (THOMAS P. JOSEPH, JUDGE) Sbna/-