IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 37716 of 2009(O) -------------------------- PETITIONER(S): --------------- 1. ANTONY JOSEPH, S/O.LATE A.K.ANTONY KURUVILA, AGED 50 YEARS, ADIPUZHA FATHIMA SADANAM, KOTTANGAL MURI AND VILLAGE. 2. LATHA JOSEPH, W/O. ANTONY JOSEPH, AGED 43 YEARS, ADIPUZHA FATHIMA SADANAM, KOTTANGAL MURI AND VILLAGE. BY ADV. MR. V.SANTHARAM RESPONDENT(S): --------------- 1. SOPHIAMMA THOMAS, D/O. LATE A.K. ANTONY, AGED 60 YEARS, MANIMALAKUNNEL, VELICHIYANI, PARATHODU VILLAGE, KANJIRAPPALLY. 2. SAVITHAMMA MATHEW, D/O. LATE A.K. ANTONY, AGED 56 YEARS, KUNNATHU HOUSE, CHITOOPR MURI, PATHANAMTHATHITTA VILLAGE. 3. SALIMMA MATHEW, D/O. LATE A.K. ANTONY, AGED 54 YEARS, PUNNAMANGALATHU HOUSE, VETTIPURAM MURI, PATHANAMTHITTA. 4. SOLIMMA MATHEW, D/O. LATE A.K. ANTONY, AGED 49 YEARS, KUNNAMPALLIL VEEDU, CHIRAKKADAVU MURI AND VILLAGE, KANJIRAPPALLY TALUK. (...2) WP(C).37716/09 2 5. THRESSIAMMA SONY, D/O. LATE A.K. ANTONY, AGED 46 YEARS, KOTTANGAL MURI AND VILLAGE, CHUNGAPPARA, MALLAPPALLY. 6. ROSAMMA JOJI,D/O. LATE A.K. ANTONY, AGED 46 YEARS, PLAKKATTU HOUSE, PUTHENPEEDIKA MURI, OMALLOOR VILLAGE. ADV. MR. JACOB P.ALEX FOR R1,2,5 & 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).37716/09 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF O.S.75/09 DT.8.6.09 FILED BEFORE THE SUB COURT, THIRUVALLA EXT.P2:- TRUE COPY OF THE PARTITION DEED NO.886/84 DT.16.4.84 EXT.P3:- TRUE COPY OF O.S.87/02 DT.9.9.02 FILED BEFORE SUB COURT, THIRUVALLA EXT.P4:- TRUE COPY OF COUNTER CLAIM DT.2.4.03 IN O.S.87/02 FILED BY RESPONDENTS EXT.P5:- TRUE COPY OF JUDGMENT DT.29.9.07 IN O.S.87/02 BY SUB COURT, THIRUVALLA EXT.P6:- TRUE COPY OF THE DECREE DT.29.9.07 PASSED IN OS 87/02 BY DO DO- EXT.P7:- TRUE COPY OF INTERIM ORDER DT.16.6.08 IN IA.2316/08 IN RFA.371/08 EXT.P8:- TRUE COPY OF SALE DEED NO.1115/02 DT.7.8.02 EXT.P9:- TRUE COPY OF GIFT DEED NO.206/09 DT.18.5.09 EXT.P10:- TRUE COPY OF BUILDING PERMIT NO.A3/455/09 DT.2.6.09 ISSUED BY KOTTANGAL GRAMA PANCHAYAT EXT.P11:-TRUE COPY OF TAX RECEIPT NO.2487418 ISSUED BY KOTTANGAL VILLAGE OFFICE DT.22.4.09 TO THE 2ND PETITIONER. EXT.P12:-TRUE COPY OF DO- NO.155111 ISSUED BY DO- DT.1.1.05 EXT.P13:-TRUE COPY OF DO- NO.216685 ISSUED BY DO- DT.13.2.06 EXT.P14:-TRUE COPY OF DO- NO.2778360 ISSUED BY DO- DT.22.1.09 EXT.P15:-TRUE COPY OF IA.619/09 IN OS.75/09 DT.8.6.09 FOR TEMPORARY INJUNCTION EXT.P16:-TRUE COPY OF IA.706/09 IN OS.75/09 DT.23.6.09 EXT.P17:-TRUE COPY OF AFFIDAVIT DT.12.7.09 FILED IN O.S.75/09 EXT.P18:-TRUE COPY OF ORDER DT.4.8.09 IN IA.619/09 IN OS.75/09 PASSED BY SUB COURT, THIRUVALLA. EXT.P19:-TRUE COPY OF CMA.43/09 DT.25.8.09 FILED BEFORE DISTRICT COURT, PATHANAMTHATHITTA EXT.P20:-TRUE COPY OF IA.688/09 IN CMA.43/09 DT.25.8.09 DO DO.. EXT.P21:-TRUE COPY OF COUNTER AFFIDAVIT IN IA.688/09 IN CMA.43/09 DT.7.9.09DO..DO EXT.P22:-TRUE COPY OF JUDGMENT DT.21.10.09 IN CMA.43/09 PASSED BY DISTRICT COURT, PATHANAMTHATHITTA. EXT.P23:-TRUE COPY OF SURVEY SKETCH OF ITEMNO. 1 IN THE COUNTER CLAIM IN OS.87/02 EXT.P24:-TRUE COPY OF SEPARATE SKETCH OF DO- DO- EXT.P25:-TRUE COPY OF SALE DEED NO.220/02 DT.16.3.02 RESPONDENT'S EXHIBITS:- NIL OKB //TRUE COPY// P.A. TO JUDGE PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- W.P (C). No. 37716 of 2009 ---------------------------------- Dated this the 16th day of March, 2010 J U D G M E N T ---------------------- Pius C.Kuriakose,J. Under challenge in this writ petition filed under Article 227 is Ext.P22 judgment of the District Court, Pathanamthitta reversing Ext.P18 order of the Subordinate Court, Thiruvalla passed in an application for temporary injunction filed by the respondents in Ext.P1 suit filed by them. The plaint Ext.P1 will show that the only relief which is sought for in the suit is a perpetual prohibitory injunction restraining the defendants in the suit (appellants herein) from constructing any residential building or other building in the suit property till a final decree is passed in O.S.87/02 of the Sub Court, Thiruvalla. It is not disputed that the suit property in Ext.P1 suit is a part of the property covered by the counter claim which was lodged by the respondents in O.S.87/02. Even though O.S.87/02 filed by the appellants was dismissed by the Subordinate Court, that court did not allow the counter claim filed by the respondents in full. The counter claim was disallowed to the extent it pertains to the WP(C).37716/09 2 partition deed which is produced along with writ petition as Ext.P2. RFA.371/08 filed by the present appellants is directed against the decree in O.S. 87/02. At the time when Ext.P1 suit was filed the respondents had not filed any memo of Cross Objections against the decision of the Suboridnate Court, Thiruvalla in disallowing their counter claim at that time. But later, after the filing of Ext.P1 suit, the memorandum of Cross Objections have been filed by the respondents in RFA.371/08 with a petition for condoning the delay of 493 days caused in the matter of filing the memorandum of Cross Objections. The learned Sub Judge, under Ext.P18 order, found that the subject matter of that suit was part of the subject matter of RFA.371/08. The court noticed that the respondents are yet to file any appeal or Cross Objections against the decision of the Sub Court in O.S.87/02 to disallow the counter claim filed by them. The court also took the view that even if the respondents had a genuine cause of action, it was for them to seek redressal and relief in RFA.371/08 which is a continuation of OS.87/02 already instituted. The learned Sub Judge also noticed that the prayer in the suit was only for an injunction restraining WP(C).37716/09 3 construction of buildings and that if ultimately the decision in RFA.371/08 comes to be in favour of the respondents herein the respondents need not have a legitimate grievance since the buildings which are being put up on the suit schedule property will be available for partition. On these and other detailed reasons stated in Ext.P18 the application for injunction was dismissed and interim injunction initially issued was vacated. The learned District Judge under Ext.P22, however, interfered with Ext.P18. According to the learned District Judge, the suit property was covered by Ext.P7 interim order passed by this court in RFA.371/08 and the settlement deed executed by the first appellant in favour of the second appellant his wife is in gross violation of Ext.P7. The District Judge also took the view that the settlement deed being in respect of the subject matter of O.S.87/02 is hit by Rule of Lis Pendens and was liable to be ignored by the parties to O.S.87/02. According to the learned District Judge, allowing the appellants to continue with construction of buildings on the property which is subject matter of RFA.371/08 (the memorandum of Cross Objections therein) will amount to interfering with the WP(C).37716/09 4 respondents' interest in the property as co-owners and accordingly in reversal of the decision taken by the Sub Judge in Ext.P18 would restore the order of interim injunction which was initially granted by the learned Sub Judge. 2. In this writ petition filed under Article 227 various grounds have been raised by the appellants assailing Ext.P2 and Sri.V. Santharam, learned counsel for the appellant addressed extensive arguments before us on the basis of those grounds. Mr.Santharam submitted that the donee under the settlement deed is none other than the wife of the 1st petitioner, who is the 1st appellant in RFA.371/08. Notwithstanding the settlement deed, the husband 1st petitioner is also retaining possession of the property. Mr. Santharam submitted that as cross objectors it was always possible for the respondents to seek the relief which they sought for in Ext.P1 suit by way of temporary injunction from this court in RFA.371/08 itself. According to Mr. Santharam, it is by availing Bank loan that the petitioners started the construction of a residential building for themselves on the property in question. The local authority issued building WP(C).37716/09 5 permit for the proposed construction after making due enquiries and it was thereafter only that the petitioners started construction. Building materials for the construction were collected in large quantities and it was at that juncture that the respondents filed Ext.P1 suit and obtained interim order of injunction. The petitioners continued with the construction once Ext.P8 order was passed by the Sub Court. Ext.P22 prevents the petitioners from continuing with the construction. Construction cost is sky-rocketing on a daily basis. Unless the petitioners are permitted to continue with the construction the loss that they will sustain will be irreparable, so submitted Mr. Santharam. Mr. Santharam further submitted that if in RFA.371/08 and the memorandum of Cross Objections filed therein by the respondents it is ultimately found that the plaint schedule property in Ext.P1 suit is partible, then the petitioners will have no objection in this court treating the constructions put up on the plaint schedule property also as partible assets. The learned counsel submitted that his above submission can be recorded by us and that the petitioners will be filing an affidavit in that line before this court. He fervently appealed WP(C).37716/09 6 that Ext.P22 be vacated and the petitioners be permitted to continue with the construction subject to the final outcome of RFA.371/08. Mr.Santharam fortified his submissions by the judgments of the Hon'ble Supreme Court reported in Mandali Ranganna and others Vs. T. Ramachandra and others ((2008) 11 SCC 1) and Ajay Mohan and others Vs. H.N.Rai and others((2008) 2 SCC 507). Referring to the judgment in Mandali Raganna's case Mr. Santharam submitted that the conduct of the respondents disentitled them to grant of any relief at the hands of an equity court. The learned counsel relied on Ajay Mohan's case in support of his arguments that inasmuch as settlement executed by the 1st respondent in favour of 2nd petitioner is not under challenge Ext.P1 suit should have been found to be not maintainable. 3. All the submissions of Mr. Santharam were forcibly resisted by Mr. Jacob P. Alex, learned counsel for the respondents. Mr. Jacob P. Alex submitted that there is absolutely no warrant for invoking the supervisory jurisdiction of this court under Article 227 for interfering with Ext.P22. According to him, the supervisory jurisdiction WP(C).37716/09 7 under Article 227 is not to be invoked for correcting every wrong order that is passed by a Sub Court. It can be invoked only in exceptional circumstances. No exceptional circumstances is made out in this case. Learned counsel justified the action of his clients in filing Ext.P1 suit even during the pendency of RFA.371/08. According to him, in O.S.87/02 the 2nd writ petitioner is not a party. The 1st writ petitioner, her husband executed a settlement deed in her favour and Ext.P10 building permit was issued by the local authority (Kottangal Grama Panchayat) on the strength of that settlement deed. Only when it was noticed that on the strength of that settlement deed the 2nd petitioner ably assisted by her husband is going her ahead constructing building in the property which is the subject matter of counter claim in the suit that the respondents filed Ext.P1 suit. The respondents could not have obtained any relief against the 2nd writ petitioner in RFA.371/08 for the reason that the 2nd writ petitioner is not a party in that RFA. According to Mr.Jacob P.Alex, co-sharer though he may be the 1st writ petitioner is not entitled to appropriate a portion of the co-ownership property to himself by putting up WP(C).37716/09 8 buildings thereupon since such an action will amount to infringement of the right of the respondents as co-sharers. He would place strong reliance on the judgment of the Single Judge of this court in Gouri and others Vs. Dr.C.H. Ibrahim and another (AIR 1980 Kerala 94) for the above proposition. For the same proposition Mr. Jacob relied on the judgment of Punjab & Haryana High Court in Om Prakash and others Vs. Chhaju Ram (AIR 1992 Punjab and Haryana 219). According to him, permanent constructions are not to be permitted especially when a regular partition suit is pending before that suit is finally disposed of. The learned counsel further relied on certain observations in paragraph 6 of judgment in Gangubai Babiya Chaudhary and others Vs. Sitaram Bhalchandra Sukhtankar and others (AIR 1983 SC 742). 4. We have very anxiously considered the rival submissions addressed before us by the learned counsel for petitioners and respondents. We have scanned Ext.P18 order passed by the learned Sub Judge as well as Ext.P22 judgment passed by the learned District Judge reversing Ext.P18. We have also considered the ratio emerging from WP(C).37716/09 9 the decisions cited at the Bar by both the learned counsel. It is trite that the principles to govern grant or otherwise all temporary injunctions are the existence of prima facie case; the question whether irreparable injury will be caused if injunction is allowed or declined and also the question as to the balance of convenience whether it is in favour of grant or refusal. As we gauge the respondents' request for temporary injunction in Ext.P1 suit which is now seen granted by the District Judge under Ext.P22 we feel that the above considerations were not correctly kept in mind by the learned District Judge. The suit property, which is subject matter of Ext.P1, is scheduled to the counter claim which was filed by respondents in OS.87/02. Even though the suit was decided against the writ petitioners, the counter claim, which was tried as though it were a separate suit, was not decreed in full in favour of the respondents. To the extent it related to the suit property in Ext.P1 the counter claim was disallowed. In fact the counter claim disallowed was a counter claim for cancelling Ext.P2 partition deed. At the time when Ext.P1 suit was instituted and the motion for temporary injunction was made, the plaintiffs in Ext.P1 suit WP(C).37716/09 10 were yet to challenge the decision in O.S.87/02 declining their counter claim. The allegations in Ext.P1 cumulatively was that the 1st writ petitioner, who is the second appellant in RFA.371/08, and his wife are going ahead with putting up of constructions on the suit property to the detriment of the interest of the respondents in RFA.371/08. The illegality alleged to be perpetrated by the writ petitioners was not commission of any acts of waste on the property in question or even any alienation or induction of strangers into the property. On the contrary, the illegality alleged was that the petitioners were going about with the construction of building on the property. The prayer for temporary injunction was resisted by the writ petitioners raising contentions which have been almost correctly narrated by the learned Subordinate Judge in Ext.P18 order. We find that under Ext.P18 the injunction sought for was declined by the learned Sub Judge on fairly cogent reasons and making observations which will show that despite the vacation of the injunction order no legal prejudice was going to be occasioned to the respondents in so far as their interest in the property which is the subject matter of RFA.371/08 and WP(C).37716/09 11 the memorandum of Cross Objections lodged by them therein went. The question that falls for determination before us is whether learned District Judge was justified in interfering with Ext.P18 and in restoring the injunction that was declined by the learned Sub Judge. For the following reasons we hold that the learned District Judge was in error. 1. Suit property in Ext.P1 is part of property which is subject matter of RFA.371/08 and the memorandum of Cross Objections therein. 2. The suit property in Ext.P1 was found by the trial court after adjudication to be not partible. The best that the respondents can aspire for in RFA.371/08 and the memorandum of Cross Objections therein is a decision by this court that the suit property in Ext.P1 is also partible. 5. The result is that the writ petition is allowed. Ext.P22 is set aside. Ext.P18 is restored subject to the following conditions. The writ petitioners will file an affidavit before this court stating in clear terms that in the event of the decision in RFA.371/08 and the memorandum of Cross Objections WP(C).37716/09 12 filed by them therein coming to be against them in respect of the property which is subject matter of Ext.P1 they will not have any objections in this regard treating the buildings which are being put up by them on the strength of this judgment also being treated as partible assets amongst parties to RFA.371/08. Affidavit to be filed on or before 25.3.2010. Post as to be spoken to on 26.3.2010. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb