IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 FAO.No. 163 of 2011(I) -------------------------------- AGAINST THE ORDER DATED 08/04/2011 IN IA.NO. 2188/2010 IN AS.NO.185/2010 of SUB COURT,KOTTARAKKARA .................... APPELLANT/PETITIONER. ----------------------------------------- INDIRA AMMA, D/O. KAMALAKSHY AMMA, PATHIRAPALLIL VEEDU, ELAMBAL MURI, VILAKKUDY VILLAGE, PATHANAPURAM - 689 695. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): RESPONDENT. ------------------------------------------------- P.T.SUBASH BABU, S/O. THOMAS VAIDYAN, JAYABHARATHAM BUNGLOW, AARAMPUNNA, PUNALUR, PATHANAPURAM - 689 695. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts F.A.O.NO.163/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1: COPY OF THE ORDER DATED 6/2/2008 IN I.A.NO.204/2008 IN O.S.NO.27/2008 OF THE MUNSIFF'S COURT, PUNALUR. ANNEX A2: COPY OF THE ORDER DATED 19/3/2008 IN I.A.NO.159/2008 IN O.S.NO.23/2008 OF THE MUNSIFF'S COURT, PUNALUR. ANNEX A3: COPY OF THE COMMON ORDER DATED 21/8/2009 IN WP(C)NO.7680/2009 & 7681/2009 OF THIS HON'BLE COURT. ANNEX A4: COPY OF THE APPEAL MEMORANDUM IN A.S.NO. 185/2010AND I.A.NO.2188/2010 FILED BY THE APPELLANT BEFORE THE SUB COURT, KOTTARAKKARA. ANNEX A5: COPY OF THE APPEAL MEMORANDUM IN A.S.NO. 186/2010 AND I.A.NO.2190/2010 FILED BY THE APPELLANT BEFORE THE SUB COURT, KOTTARAKKARA. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. --------------------------------- F.A.O.No. 163 of 2011 --------------------------------- Dated this the 26th day of July, 2011 JUDGMENT Aggrieved by the order dated 11.4.2011 in I.A. No.2188/2010 in AS 185/2010 of the court below the petitioner has come up in appeal before this Court. The facts ncessary for the disposal of the appeal are as follows:- 2. Two suits namely OS No.23/2008 and OS No.27/2008 were instituted before the Munsiff’s Court, Punalur. OS No. 23/2008 is filed by the respondent seeking a declaration that the sale deed executed in favour of the petitioner herein is not valid and for other reliefs. The petitioner, in turn, filed OS No.27/2008 before the same court. 3. This court is given to understand that in OS No.27/2008 the plaintiff had moved an application for temporary injunction. The plaintiff in O.S.No. 23/2008 has also moved a similar application. The application filed in OS No.27/2008 was allowed and the application filed in OS No. 23/08 was dismissed. This court by Annexure III order directed status quo to be maintained. 4. Thereafter the suits went for trial. OS No. 23/2008 was F.A.O.No. 163 of 2011 2 decreed and O.S. No. 27/2008 was dismissed. The plaintiff filed two appeals. Aggrieved by the common judgment in O.S. Nos.23/2008 and 27/2008, the appellant filed A.S. No. 185/2010 and A.S.No. 186/2010 against the judgment and decree in O.S.No.23/2008. 5. It appears that the appellant in AS No. 185/2010 moved an I.A No.2188/2010 seeking temporary injunction against the respondent therein from interfering with the appellant’s peaceful possession and enjoyment of the property and from committing any waste in the property. The lower court of the opinion that unless the judgment and decree in O.S. No.23/2008 is set aside by the competent appellate Court, the appellant cannot seek relief in respect of the plaint schedule properties. Holding so the petition was dismissed. That brings the petitioner before this court. 6. Learned counsel for the appellant pointed out that in fact an appeal had been filed against the judgment and decree in O.S.No.23/08 and an interim order was passed staying the operation of the decree in O.S.No.23/08. 7. Therefore it is pointed that the basis on which the lower F.A.O.No. 163 of 2011 3 court proceeded to dismiss the IA No.2188/10 is not justified. It is also pointed out that there has not been proper consideration of the prayers in the I.A. 8. Learned counsel for the respondent pointed that it is not correct to say that the relief denied was unjustified because there was no material to show that the decree in OS No.23/08 had been challenged. Learned counsel referred to the pleadings and evidence adduced in the case and contended that even on merits the petitioner is not entitled to succeed. Learned counsel also referred to certain acts committed by the petitioner causing considerable damages to the property and pointed that even on equitable consideration, he was not entitled to any relief. Learned counsel pointed out that lower court was justified in declining to grant relief as long as the judgment and decree in O.S.No.23/08 stands. 9. On going through the impugned order, it is seen that the facts which made the lower appellate court dismiss the petition is that at that point of time when the matter was taken for consideration there was nothing to show that appeal has been filed against the judgment and decree in OS 23/08. The suit filed F.A.O.No. 163 of 2011 4 by the respondent herein against the petitioner was decreed against him. However it is seen that the appeal has been filed against the judgment and decree in OS 23/08. 10. It does not appear that the lower court considered the petition on merits and whether the necessary ingredients enabling the petitioner to get an interim order, exist or not. It has not considered the relevant aspects before coming to the conclusion whether the petitioner is entitled to any relief. As already stated, the court below was mainly guided by the fact that the judgment and decree in O.S No.23/08 had become final in the light of the fact no order could be granted in the I.A. The above assumption is not correct. 11. Therefore it has become necessary to remand the matter to the lower appellate court for fresh consideration. The lower appellate court will consider whether the essential factors necessary to grant an interim relief are established or not. 12. In the result, this appeal is allowed. Impugned orders are set aside. The matter is remanded to the lower court for fresh consideration in accordance with law and in the light of what is stated above. F.A.O.No. 163 of 2011 5 The matter may be heard and disposed of by the lower appellate court within three months from the date of receipt of a copy of this judgment. P.BHAVADASAN, JUDGE. rkc