IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 4499 of 2009(I) CMA.47/2008 of ADDL.DISTRICT COURT (ADHOC), KOTTAYAM PETITIONER: --------------- SAJINI JACOB, AGED 57 YEARS, W/O.LATE P.JACOB THOMAS @ YACOB, PUKADAYIL HOUSE,PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE. BY ADV. SRI.A.V.THOMAS SRI.G.SHRIKUMAR SRI.JOJO GEORGE SRI.NIDHI SAM JOHNS RESPONDENTS: --------------- 1. JACOB MATHEN , AGED 55 YEARS, S/O. LATE MATHEN, PUKADIYIL HOUSE, PANAYAKAZHIPPU KARA, MUTTAMABALAM VILLAGE. 2. MATHEW P.MATHEN, AGED 55 YEARS S/O. LATE MATHEN, PUKADIYIL HOUSE, PANAYAKAZHIPPU KARA, MUTTAMABALAM VILLAGE. 3. VINEETH P.MATHEW, AGED 17 YEARS (MINOR) REPRESENTED BY NEXT FRIEND AND FATHER MATHEW P.MATHEN, S/O. LATE MATHEN, PUKADIYIL HOUSE, PANAYAKAZHIPPU KARA, MUTTAMABALAM VILLAGE. R1 TO R3 BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4499 OF 2009 I ------------------------------------------------------ Dated this the 5th March, 2009 JUDGMENT The respondents filed O.S.No.325 of 2008, on the file of the Sub Court, Kottayam, for partition. There are four items in the plaint schedule. The petitioner herein is the first defendant in the suit. 2. I.A.No.1769 of 2008 was filed by the plaintiffs against the first defendant for temporary injunction restraining the first defendant from alienating the plaint schedule properties and from committing any waste in the property. As per Ext.P3 order dated 26.6.2008, an interim injunction was granted. The petitioner/first defendant filed I.A.No.1956 of 2008 under Order XXXIX Rules 1, 2 and 4 of the Code of Civil Procedure for a temporary injunction restraining the plaintiffs from obstructing the first defendant from enjoying the plaint schedule item Nos.1 to 3 and from collecting rents from the tenants. In that application, a prayer was also made to vary the order of interim injunction passed in the case. The court below disposed of I.A.No.1956 of 2008 as per Ext.P5 order dated 16.7.2008, holding that the order of interim injunction would not preclude the tenants from paying rent to the first defendant or anybody else to whom rent was being paid. It was also held thus: W.P.(C) NO.4499 OF 2009 :: 2 :: “So there is no bar on any restriction from paying rent to the petitioner. So it is clarified that the tenants in the building are not restrained by any injunction from paying rent to the petitioner or to the person to whom they are already paying the rent.” It was also clarified that the injunction was only for the purpose of restraining the first defendant from alienating the property or from committing waste. After holding so, the court below in Ext.P5 order held thus: “So the 13th defendant in the suit is directed to pay the rent without fail to the petitioner.” 3. The 13th defendant is the tenant. Challenging the order dated 16.7.2008, the plaintiffs filed C.M.A.No.47 of 2008, on the file of the Court of the District Judge of Kottayam. C.M.A.No.47 of 2008 was disposed of as per the judgment dated 15.12.2008, by which the court below allowed the Appeal, set aside the order in I.A.No.1956 of 2008 and remanded the application for fresh consideration. It was held by the Appellate Court that I.A.No.1956 of 2008 was filed not for clarification of the order passed in I.A.No.1769 of 2008, but the relief sought for was for temporary injunction. The court below set aside the order mainly for the reason that there was a direction to the tenant (Defendant No.13) to pay rent to the first defendant. The court below thought that it is a matter to be decided independently and without deciding that question, the trial court was not W.P.(C) NO.4499 OF 2009 :: 3 :: justified in issuing a direction to the 13th defendant to pay the rent to the first defendant. It was held in the appellate judgment that since the point whether the first defendant is entitled to collect rent exclusively was not decided in I.A.No.1956 of 2008, the order passed by the learned Sub Judge was liable to be set aside. 4. The Writ Petition is filed by the first defendant challenging Ext.P7 judgment in C.M.A.No.47 of 2008. Learned counsel for the petitioner submitted that an enquiry as directed in the judgment in C.M.A.No.47 of 2008 is unnecessary since the petitioner does not want a direction to the 13th defendant to pay the rent to her. At the same time, it was clarified by the appellate court itself that the interim injunction order does not preclude the tenant from paying the rent to the person to whom it was being paid. Since the lower appellate court has held so, according to the counsel for the petitioner, no further enquiry was necessary. The counsel for the petitioner submitted that even the direction contained in the order dated 16.7.2008 in I.A.No.1956 of 2008, passed by the learned Subordinate Judge directing the 13th defendant to pay the rent to the petitioner can be deleted. Learned counsel appearing for the respondents submitted that if such a deletion of the direction is made from Ext.P5 order dated 16.7.2008, the respondents would have no further grievance on that aspect and that a remand would not be W.P.(C) NO.4499 OF 2009 :: 4 :: necessary. At the same time, learned counsel for the respondents submitted that they have filed an application for appointment of a Receiver before the trial court and that the order in the Writ Petition should not be a bar for the trial court in considering that application. This submission made by the learned counsel for the respondents is just and reasonable. Accordingly, the Writ Petition is allowed in part, as follows: a) The finding in the judgment in C.M.A.No.47 of 2008 that the order of injunction passed by the trial court does not preclude the tenant (13th defendant) from paying the rent to the person to whom it was being paid is confirmed. b) The direction issued by the trial court to the 13th defendant in the order dated 16.7.2008 in I.A.No.1956 of 2008 to pay the rent to the first defendant is deleted. c) In view of the above, it is not necessary to set aside the order in I.A.No.1956 of 2008 and a remand, as made by the lower appellate court, is unnecessary. W.P.(C) NO.4499 OF 2009 :: 5 :: d) The disposal of this Writ Petition in the manner indicated above would not affect the right of the plaintiffs to proceed with the application for appointment of a Receiver. That application shall be considered on its merits by the trial court. (K.T.SANKARAN) Judge ahz/