IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).NO. 12456 OF 2010(O) -------------------------- AGAINST I.A.NO.1324 OF 2009 IN OS.261/2009 OF MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------- VARKEY, S/O.KOCHUKURU, KUPPAYIL HOUSE, THIRUVANIYOOR.P.O, MARANGATTULLI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.M.PAUL VARGHESE SRI.M.K.GINASH RESPONDENT(S): --------------- 1. MATHEW P.SEBASTIAN, S/O.DEVASIA, PERINGAMALAYIL HOUSE, MULAKKULAM VADAKKEKKARA KARA MULAKKULAM NORTH.P.O, PIRAVAM VILLAGE, MUVATTUPUZHA TALUK, PIN-686 664. 2. JOSE P.SEBASTIAN, S/O.DEVASIA, PERINGAMALAYIL HOUSE, MULAKKULAM VADAKKEKKARA KARA PIRAVAM VILLAGE, NOW RESIDING AT PERINGAMALAYIL HOUSE, PULLIYANNOOR.P.O, PULIYANNOOR VILLAGE, PALA, PIN-686 573. 3. MARY P.SEBASTIAN, D/O.DEVASIA, PERINGAMALAYIL HOUSE, MULAKKULAM VADAKKEKKARA KARA PIRAVAM VILLAGE, NOW RESIDING AT HOUSE NO.CRA-7, KUTTIKKATTU, NALANCHIRA.P.O, THIRUVANANTHAPURAM PIN-695 015. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.12456 of 2010 ==================================== Dated this the 27th day of May, 2010 J U D G M E N T Writ petitioner is the plaintiff in O.S. No.261 of 2009 of the court of learned Munsiff, Muvattupuzha. An ex parte interim order of injunction was passed in his favour on I.A. No.1324 of 2009 restraining respondents from trespassing into plaint A schedule and causing obstruction to the plaint B schedule. Alleging that respondents violated the ex parte interim order of injunction petitioner filed I.A. No.2387 of 2009 for enforcement of the interim order of injunction with the assistance of police. On the respondents undertaking not to violate the interim order of injunction that application was posted along with the suit. Alleging that there was further violation on the part of the respondents, petitioner filed I.A. No.94 of 2010 again for enforcement of the interim order of injunction with the assistance of police. That application was dismissed by the learned Munsiff observing that a similar application is pending and that remedy of petitioner was to seek an order on the said application (I.A. No.2387 of 2009), that interim order of injunction sought to be W.P(C) No.12456 of 2010 -: 2 :- enforced is not a final order after hearing both sides and hence no police assistance can be ordered. Petitioner is aggrieved by Ext.P10, order. Learned counsel placed reliance on the decision in Kochupennu Ambujakshi v. Velutha Kunju (1992 [2] KLJ 606) to contend that it is sufficient that notice on the application for injunction is served on respondents and that there need not be a final order so that assistance of police could be ordered to enforce the same. Learned counsel relied on the decision in Black Marble Granites v. Biju (1998 [2] KLT 635) to contend that application for injunction (I.A. No.1324 of 2009) should have been disposed of by the learned Munsiff within 30 days. 2. It is not disputed that the interim order of injunction now sought to be enforced with police assistance was passed without giving notice to the respondents. This Court while considering the issue of granting police assistance under Article 226 of the Constitution of India held in Kunhumuhammed v. Bava Haji (1999 [2] KLJ 208) that police assistance can be granted only when there is a final order of injunction passed under Rule 1 or 2 of Order XXXIX of the Code of Civil Procedure. It W.P(C) No.12456 of 2010 -: 3 :- is also stated that otherwise there is possibility of the parties committing mischief with the assistance of police which might give rise to further litigation. In this case respondents have preferred their objection to I.A. No.1324 of 2009 and that application has not been finally disposed of. As such learned Munsiff is justified in holding that the ex parte interim order of injunction cannot be enforced with police assistance. It is also to be noted that it is while I.A. No.2387 of 2009 seeking police assistance is pending that petitioner again filed I.A. No.94 of 2010 for the same relief. Learned Munsiff is justified in observing that petitioner had to request for hearing of I.A. No.2387 of 2009. But even without a request from the petitioner it was open to the learned Munsiff to dispose of I.A. No.2387 of 2009 rather than keeping that application pending and hearing I.A. No.94 of 2010. 3. Having regard to the position of law and circumstances stated above I do not find reason to interfere with Ext.P10, order. I make it clear that it will be open to the petitioner to request for an early hearing and disposal of I.A. No.1324 of 2009 if necessary by seeking review of the order posting that application for hearing along with the suit. I also make it clear that if the ex parte interim order of injunction is made absolute W.P(C) No.12456 of 2010 -: 4 :- after hearing the respondents and if there is further violation of the order it will be open to the petitioner to seek appropriate orders on I.A. No.2387 of 2009. Writ Petition is dismissed with the above observations. THOMAS P. JOSEPH, JUDGE. vsv