IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 FAO.No. 96 of 2009() -------------------- AGAINST THE ORDER DATED 17/03/2009 IN IA. 526 /2008 IN AS.8/2008 of DISTRICT COURT,THODUPUZHA .................... APPELLANT/PETITIONER/APPELLANT ------------------------------------------- PUTHIYACHIRA SIVA KSHETRAM, PANOOR, REP. BY ITS PRESIDENT BHASKARAN, AGED 65, S/O.RAMAN, ETTOLICKAL HOUSE, PALLIKAMURY KARA, KARIMANOOR VILLAGE THODUPUZHA TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): RESPONDENTS/RESPONDENTS ------------------------------------------------------ 1. THE STATE OF KERALA, REP.BY DISTRICT COLLECTOR IDUKKI. 2. THE TAHSILDAR, THODUPUZHA TALUK OFFICE, THODUPUZHA. 3. THE RESURVEY SUPERINTENDENT, RESURVEY OFFICE, THODUPUZHA. 4. KARIMANOOR GRAMA PANCHAYATH , REP. BY ITS SECRETARY. BY GOVERNMENT PLEADER SRI.BENNY VARGHESE THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.1415/2009 IN F.A.O. NO.96/2009 7.4.2009 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO. 96 OF 2009 =========================== Dated this the 7th day of April,2009 JUDGMENT Appellant in A.S.8/2008 on the file of District Court, Thodupuzha who is the plaintiff in O.S.350/2004 on the file of Munsiff Court, Thodupuzha is the petitioner. Respondents are the defendants and the respondents in the first appeal. The suit was dismissed and challenging the dismissal of the suit, A.S.8/2008 was filed. In the first appeal appellant filed I.A.526/2008 under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction restraining respondents from committing any act of waste or damage or closing the road to the temple or from establishing a Harijan Colony in the plaint schedule property. The case of the appellant is that when the suit was pending there was an F.A.0.96/2009 2 order of temporary injunction and appellant has got a very good chance of success in the first appeal and if during the pendency of the appeal the respondents are to set up a Harijan Colony in the plaint schedule property it would cause irreparable injury and hardship and therefore an order of temporary injunction should have been granted especially when an order of injunction was there when the suit was pending. Learned counsel argued that the learned Munsiff did not consider the evidence in the proper perspective and the judgment is not sustainable and in such circumstance the impugned order is to be set aside and an order of temporary injunction is to be granted. 2. On hearing the learned counsel, I find no reason to interfere with the impugned order dated 17.3.2009. Learned Munsiff after trial found that appellant is not entitled to the decree sought for. The correctness of that findings is to be decided only in the first appeal. Before entering a F.A.0.96/2009 3 finding that the findings of the learned Munsiff is not correct, it is not possible to accept the case of the appellant that he has right, title and possession to the plaint schedule property. When after recording the evidence, on the evidence it is found that petitioner has not proved the case, a prima facie case cannot be found in favour of the appellant. When appellant has no prima facie case, no order of temporary injunction could be granted. Hence appellant is not entitled to the order of temporary injunction sought for. The appeal can only be dismissed as bereft of merits. But while dismissing the appeal District Judge, Thodupuzha is directed to dispose of A.S.8/2008 as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of the judgment. M.SASIDHARAN NAMBIAR JUDGE tpl/- F.A.0.96/2009 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006