IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 OP(C).No. 2330 of 2011(O) ------------------------- IA NO.2971/2011 IN OS 517/2011 OF MUNSIFF COURT, KOLLAM PETITIONER(S): ------------------------------ MURALEDHARAN, S/O.NANOO, GURU MANDIRAM, PERINAD P.O., KOLLAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.RENU D.P. RESPONDENT(S): --------------- 1. SMT.SHEELA, D/O.SUBHADRA, ANANDA BHAVAN, DHARSANA NAGAR 97, PATTATHANAM, KOLLAM-691001. 2. SRI.VINAYABHANU, S/O.NANOO, ANANDA BHAVAN, DHARSANA NAGAR 97, PATTATHANAM, KOLLAM-691001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.2330/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DECREE IN AS NO.165/2006 DATED 4.12.2006 OF DISTRICT COURT, KOLLAM EXT.P2 TRUE COPY OF EXECUTION PETITION NO.410/2010 DATED 13.10.2010 FILED BY THE PETITIONER EXT.P3 TRUE COPY OF THE ORDER IN EP NO.410/2010 DATED 28.6.2011 OF THE ADDL.MUNSIFF COURT, KOLLAM EXT.P4 TRUE COPY OF PLAN OF THE PROPERTY EXT.P5 TRUE COPY OF TAX RECEIPT DATED 24.7.2010 EXT.P6 TRUE COPY OF TREATMENT CERTIFICATE OF THE PETITIONER EXT.P7 TRUE COPY OF OS NO.517/2011 DATED 7.7.2011 FILED BY FIRST RESPONDENT EXT.P8 TRUE COPY OF ORDER IN IA NO.2971/2011 IN OS 517/2011 DATED 11.7.2011 //TRUE COPY// P.A. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2330 of 2011 -------------------------------------- Dated this the 20th day of July, 2011. JUDGMENT The challenge in this Original Petition brought under Article 227 of the Constitution is to Ext.P8, the ad interim order of injunction passed by learned Munsiff, Kollam on I.A.No.2971 of 2011 in O.S.No.517 of 2011. That is a suit filed by respondents 1 and 2 against petitioner for a decree for prohibitory injunction to restrain petitioner from trespassing into plaint C schedule or any other portion of plaint A schedule property, from resorting to any other mischievous act threatening their absolute right over A schedule property or from effecting sale of B schedule property by including plaint C schedule or any other portion of plaint A schedule. In plaint schedule, the A schedule is described as 4.387 cents while B schedule is described as 3.150 cents. Plaint C schedule is described as a two feet wide area forming the extreme northern portion of plaint A schedule. According to the respondents, plaint A schedule belongs to them while plaint B schedule belongs to the petitioner. They alleged among other things that petitioner who owns plaint B schedule (according to them, 3.150 cents) intended to trespass into the northern portion of plaint A schedule and annexe the two feet wide northern portion to the plaint B schedule. It is accordingly that respondents sought relief against petitioner. Learned Munsiff obviously acting on the affidavit of respondents and the documents produced along with the plaint granted Ext.P8, order as above stated. OP(C) No.2330/2011 2 2. Learned Senior Advocate appearing for petitioner has contended that the suit and the ad interim order of injunction are nothing but an abuse of the process of law and the grant of injunction amounts to transversity of justice in that a long drawn litigation with the second respondent also on the party array had come to a close and accordingly petitioner was allotted 4.467 cents of land. It is contended by learned counsel that properties were originally partitioned as per a document which was challenged in the civil court in O.S.No.488 of 2002 by one of the sisters of petitioner and ultimately the shares of parties ignoring the partition deed was fixed as per the decree in A.S.No165 of 2006 of the learned District Judge, Kollam. Pursuant to that decree, shares were allotted to the parties and accordingly, the 4.467 cents was delivered to the petitioner as seen from Exts.P3 and P4, full satisfaction was recorded and the execution petition was closed. The second respondent who was a party to that proceeding has filed the suit along with his wife, the first respondent alleging that extent of property given to the petitioner as per the above decree is only 3.150 cents which is patently wrong. It is contended by learned Senior Advocate that in the above circumstances this Court is required and entitled to interfere under Article 227 of the Constitution and quash the impugned order. It is pointed out that petitioner is a heart patient and has entered an agreement for sale of the property belonging to him and allotted to him as per the decree in A.S.No.165 of 2006 of the District Court, Kollam and the order of injunction prevents petitioner from honouring his commitment after the said agreement. Learned Senior Advocate has placed reliance on the decisions in State of OP(C) No.2330/2011 3 Kerala v. Babu (2003 (2) KLT 526 – paragraph 5), Abdul Khader and another v. Suburban Chit Funds (P) Ltd. (ILR 2006 (1) Kerala 619 – paragraph 9) and Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd. (2006(2) KLT 525). 3. In State of Kerala v. Babu (supra) reference was made to the power of this Court under Article 227 of the Constitution. It was observed that the visitorial jurisdiction must be invoked in cases where the order passed by the Subordinate Court or Tribunal is wholly unreasonable that it can be said to be tainted with perversity. It is observed that the power under Article 227 could also be exercised to avoid manifest injustice. In Abdul Khader and another v. Suburban Chit Funds (P) Ltd. (supra), also a similar observation was made in paragraph 9. But the learned Judge declined to exercise power under Article 227 of the Constitution having regard to the facts and circumstances of the case observing that intervention under Article 227 of the Constitution could only be the medicine of law and not a daily diet. The Supreme Court in Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd. (supra) at page 533 referred to the power under Articles 226 and 227 of the Constitution and held that so far as exercise of jurisdiction under Article 227 of the Constitution is concerned, the power may be exercised in cases occasioning grave injustice or failure of justice such as when the Court or Tribunal has assumed a jurisdiction which it does not have, has failed to exercise a jurisdiction OP(C) No.2330/2011 4 which it does have, such failure occasioning a failure of justice, and the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 4. Question whether in a situation of this nature the power under Article 227 of the Constitution has to be exercised must depend on the facts and circumstances of the case. Now, challenge is to Ext.P8, order granting an exparte interim order of injunction. But, I must bear in mind that the said order was granted on the face of the averments in the plaint supported by an affidavit that the property allotted to the petitioner in partition was only 3.150 cents and a claim respondents made over the two feet wide portion adjoining plaint A schedule which according to them was allotted to them. I find that certain documents were also produced along with the plaint in support of the contention raised by respondents. I am not inclined to think on the facts and circumstances that this Court should exercise power under Article 227 of the Constitution and quash Ext.P8, order particularly when petitioner has the statutory remedy of either filing an appeal against the interim order or, preferring objection and requesting learned Munsiff to vacate the order of injunction. Adequate remedies are provided under Rule 4 of Order 39 of the Code of Civil Procedure (for short, “the Code”) as well whereby the court could be requested to vary or discharge or set aside the order of injunction. In such a situation, I am inclined to think that petitioner has to left the statutory remedy of either filing an appeal or preferring objection before learned Munsiff. OP(C) No.2330/2011 5 5. Certainly the grievance aired by learned Senior Advocate on behalf of petitioner requires consideration. The Statute prescribes (See Order 39, Rule 3A) that when an order of injunction is passed without notice to the opposite party, the court has to make every endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted. There is no reason to think that learned Munsiff will not comply with the said statutory requirement unless there are compelling reasons which is required to be recorded. In the circumstances the appropriate course open to the petitioner is to make application as provided under Rule 3A of Order 39 of the Code and request learned Munsiff to dispose of that application as expeditiously as possible. Having regard to the circumstances learned Munsiff, Kollam is directed to expedite disposal of I.A.No.2971 of 2011 in O.S.No.517 of 2011 in case objection to that application is preferred by the petitioner. With the above direction this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks