IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 OP(C).No. 1782 of 2011(O) ------------------------- CMA.88/2010 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... PETITIONER: -------------------- P.VIJAYAMOHAN, S/O.PARAMESWARA PANICKAR, TC 9/266(1), PAIPPINMOODU, SASTHAMANGALAM P.O., TRIVANDRUM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): --------------- 1. BALAKRISHNAN SURENDRAN, ASWANTH BHAVAN, KOTTALAM, PARASSUVAKKAL, PARASALA, TRIVANDRUM-695502. 2. RAJENDRAN, S/O.PARAMESWARA PANICKAR, EASWARAVILASOM, KATTAKKADA ROAD, BALARAMAPURAM P.O., ATHIYANNOOR VILLAGE, TRIVANDRUM-695502. 3. SREEKUMARAN, S/O.PARAMESWARA PANICKAR, SREEPADAM, KATTAKKADA ROAD, ATHIYANNOOR VILLAGE, BALARAMAPURAM P.O., TRIVANDRUM-695502. 4. RADHAKRISHNA, S/O.PARAMESWARA PANICKAR, EASWARAVILASOM, KATTAKKADA ROAD, ATHIYANNOOR VILLAGE, BALARAMAPURAM P.O., TRIVANDRUM-695502. 5. KARUNAKARAN, S/O.PARAMESWARA PANICKAR, EASWARAVILASOM, KATTAKKADA ROAD, ATHIYANNOOR VILLAGE, BALARAMAPURAM P.O., TRIVANDRUM-695502. 6. RAGHU, S/O.PARAMESWARA PANICKAR, EASWARAVILASOM, KATTAKKADA ROAD, ATHIYANNOOR VILLAGE, BALARAMAPURAM P.O., TRIVANDRUM-695502. ADV. SRI.V.AJAKUMAR FOR R1 SRI.T.M.CHANDRAN FOR R1 SRI.SIDHARTH A.MENON FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1782 of 2011(O) PETITIONER'S EXTS: EXT.P1: COPY OF PLAINT IN OS NO.100/10 EXT.P2: COPY OF OBJECTION FILED BY THE PETITIONER IN OS 100/10 EXT.P3: COPY OF ORDER DTD.30.11.2010 IN IA 630/10 IN OS NO.100/10 EXT.P4: COPY OF ORDER DTD.31.3.2011 IN CMA NO.88/10 RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.1782 OF 2011 ------------------------------ Dated this the 15th day of June, 2011 JUDGMENT The petitioner, the first defendant in O.S.No.100 of 2010 on the file of the Sub Court, Neyyattinkara, challenges the concurrent findings of the courts below allowing the application for temporary injunction filed by the plaintiff. 2.The first respondent filed the suit for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property. According to the plaintiff, the property was purchased by him from the first defendant as per Ext.A1 sale deed dated 17.6.2006. Since mistakes crept in the document, Ext.A2 correction deed was executed by the first defendant on 12.1.2009. According to the plaintiff, he completed the construction of the building in the plaint schedule property and he entered into a Memorandum Of Understanding with the State Bank of India to let out the ground floor of the building to O.P(C)No.1782 OF 2011 2 the Bank. 3. According to the first defendant, the plaintiff is a money lender and the first defendant borrowed `10,00,000/- from him. As a security for the transaction, Ext.A1 was executed by him. Later, Ext.A2 correction deed was executed under misrepresentation and coercion at the instance of the plaintiff. The first defendant also stated that he filed a suit for cancellation of Exts.A1 and A2 documents and that suit is pending. 4. The trial court, after considering the facts and circumstances of the case and the documentary evidence in the case, held that the plaintiff is entitled to get temporary injunction. On appeal by the first defendant, the Appellate Court concurred with the view taken by the trial court. The balance of convenience, prima facie case, irreparable injury and other parameters for granting temporary injunction were considered by the courts below. The Lower Appellate Court also relied on the decision of the Supreme Court in Seema Arshad Zaheer v. Municipal Corporation, (2006(4) KLT 65)) and held that as the trial court exercised the discretion properly, the Appellate O.P(C)No.1782 OF 2011 3 Court was not justified in interfering with such exercise of discretion in the absence of any material to show that the discretion was exercised arbitrarily or capriciously or perversely or against the settled principles of law. 5. The courts below took into account the execution of Exts.A1 and A2 registered documents, the letter given by the first defendant to the local authority for registering the name of the plaintiff as the owner of the property, the cancellation of the Memorandum Of Understanding entered into between the first defendant and the State Bank of India, the execution of the Memorandum Of Understanding between the plaintiff and the State Bank of India and other materials and came to the conclusion that the plaintiff has established prima facie case for granting the temporary injunction. The discretion exercised by the courts below and the findings rendered by them do not suffer from any illegality, impropriety or jurisdictional error warranting interference under Article 227 of the Constitution of India. For the aforesaid reasons, the Original Petition is dismissed. It is made clear that the trial court shall dispose of the suit O.P(C)No.1782 OF 2011 4 untrammeled by any of the observations and findings made in the order and judgment. K.T.SANKARAN, JUDGE. cms