IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 WP(C).No. 37361 of 2009(O) -------------------------- AS.49/2009 of SUB COURT,NEYYATTINKARA OS.28/2008 of PRL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ------------------------ S.KRISHNAMMA, D/O.SARASAMMA PILLAI, CONVENT ROAD, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. BY ADV. MR.B.KRISHNA MANI RESPONDENT(S): --------------------------- 1. S.MURUGAN, AGED 62 YEARS, GAYATHRI BHAVAN, PALAKADAVU ROAD, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. 2. ANIL KUMAR, S/O.RAMANACHARY, THIRUVONAM, PALAKADAVU KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. R1 & R2 BY ADV. MR.PIRAPPANCODE V.S.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37361/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGMENT DTD. 28/09/02 IN O.S.NO.17/2000 BEFORE THE SUB COURT, NEYYATTINKARA. P2: COPY OF THE JUDGMENT IN O.S.28/08 BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DTD. 9/12/2008. P3: COPY OF THE DECREE IN O.S.28/08 BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DTD. 9/12/2008. P4: COPY OF THE APPEAL MEMORANDUM DTD. NIL IN A.S.49/09 BEFORE THE SUB COURT, NEYYATTINKARA. P5: COPY OF THE APPLICATION DTD. 16/10/09 IN I.A.1807/09 IN A.S.NO.49/09 BEFORE THE SUB COURT, NEYYATTINKARA. P6: COPY OF THE OBJECTION DTD. NIL IN I.A.1807/09 IN A.S.NO.49/09 BEFORE THE SUB COURT, NEYYATTINKARA. P7: COPY OF THE ORDER DTD. 25/11/09 IN I.A.1807/09 IN A.S.NO.49/09 BEFORE THE SUB COURT, NEYYATTINKARA. P8: COPY OF THE APPLICATION DTD. 26/12/2009 FILEDBY THE 1ST RESPONDENT. P9: COPY OF THE OBJECTION DTD. 25/01/2010 FILED BY THE PETITIONER. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LEASE DEED. R1(B): COPY OF THE ELECTRICITY BILLS. R1(C): COPY OF THE L.I.C. RENEWAL PREMIUM RECEIPT. R1(D): COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSIONER TO SANGEETHA, THE DAUGHTER OF THE 1ST RESPONDENT. R1(E): COPY OF THE PLAN AND REPORT PREPARED BY THE COMMISSIONER APPOINTED BY THE COURT. Kss ..2/- ..2... WPC.NO.37361/2009 O R1(F): COPY OF THE ELECTRICITY CONSUMER CARD ISSUED IN FAVOUR OF THE 2ND RESPONDENT. R1(G): COPY OF THE ORDER IN I.A.214/2008 IN O.S.28/2008 OF THE LEARNED PRINCIPAL MUNSIFF. R1(H): COPY OF THE JUDGMENT DTD. 9/12/2008 OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA IN OS.NO.28/2008. R1(I): COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.79/2009 OF THE NEYYATTINKARA POLICE STATION. R1(J): COPY OF THE EXECUTION PETITION DTD. 28/01/2009 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA. R1(K): COPY OF THE REPORT CONTAINING THE LIST OF ITEMS EXCLUSIVELY BELONGING TO THE 1ST RESPONDENT. R1(K): COPY OF THE MEMORANDUM OF APPEAL SUIT NO.49/2009. R1(M): COPY OF THE APPLICATION SEEKING CONDONATION OF DELAY. /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 37361 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 11th day of March, 2010 JUDGMENT Aggrieved by Ext.P7 order dated 25-11-2009 in I.A. No.1807 of 2009 in A.S. No.49 of 2009 passed by the Sub Court, Neyyattinkarka, the 1st respondent before the Appellate Court has come up before this Court with this petition under Article 227of the Constitution of India. 2. It seems that 1st respondent herein instituted O.S. No.28 of 2008 before the Munsiff's Court, Neyyattinkara against the petitioner herein for an injunction restraining the petitioner herein from forcibly evicting him from the premises involved in the suit. In the suit it was found that the petitioner was the true owner of the property. However, the suit was decreed in favour of the 1st respondent and injunction as sought for was granted. Aggrieved by the above, the petitioner filed A.S. No.49 of 2009 before the Sub Court, Neyyattinkra. He obtained a stay of the execution of the decree of the trial court. Thereafter, the 1st respondent W.P.(C) No. 37361/09 2 complaining of forcible dispossession of him filed I.A. No.1807 of 2009 for restoration of possession of the property. The petitioner resisted the petition. However, the petitioner was directed to hand over possession of the plaint schedule building to the 1st respondent. The said order is assailed in this writ petition. 3. The learned counsel appearing for the petitioner points out that fraud has been committed by respondents 1 and 2 to defeat the claim of the petitioner. It is submitted that O.S. No.28 of 2008 was filed by the 1st respondent herein showing the petitioner as well as the 2nd respondent as defendants. The claim of the 1st respondent was that he was in occupation of the building, as permitted by the 2nd respondent. He complained that the petitioner herein tried to forcibly evict him and he may not be so dispossessed. So, he sought permanent prohibitory injunction from evicting him otherwise than in accordance with law. 4. The petitioner herein entered appearance and filed written statement pointing out that the 1st respondent has W.P.(C) No. 37361/09 3 no manner of right what so ever over the plaint schedule building. She also stated that the 1st respondent could not have obtained right from the 2nd respondent. Attention was drawn by the petitioner that the 2nd respondent had instituted O.S. No. 17 of 2000 for specific performance of contract in respect of same property. He had no possession. In the said circumstances, it is contended that the building could not have been in possession of the 1st respondent. 5. The appellate court allowed the petition for re- induction of the 1st respondent into the building. Learned counsel for the petitioner points out that by no stretch of imagination the impugned order can be sustained in law. 6. Per contra the learned counsel for the 1st respondent points out that question involved in this case is limited one only regarding the re-induction of a dispossessed person. Merits of the decree is not to be adjudicated at this stage and it has to be determined in the appeal pending before the appellate court. According to the learned counsel for the 1st respondent, there were W.P.(C) No. 37361/09 4 materials to show that the 1st respondent is entitled to repossession of the building and no interference is called for. 7. The issue is not as simple it appears. It is seen that the plaintiff in O.S. No.17 of 2000 is the 2nd defendant in O.S. 28 of 2008. The 2nd defendant had instituted O.S. No.17 of 2000 against the petitioner for specific performance of the contract. In the suit instituted by the 2nd defendant he was not granted a decree for specific performance of contract but only for return of advance money paid. 8. It is seen that the plaintiff in O.S. No.17 of 2000 who was 2nd defendant in O.S. No.28 of 2008 had never been in possession of the property. That suit was decreed on 28th September, 2002. It is thereafter in 2006 the 1st respondent herein is said to have been inducted into the building. Nowhere the 2nd respondent has averred that in pursuant to the agreement for sale with petitioner he had been put in possession of the property. W.P.(C) No. 37361/09 5 9. Validity of the decree passed in the present suit need not be considered in this proceeding. The story of forcible dispossession of 1st respondent seems doubtful in the light of what has been stated above. His very induction into the building is in serious doubt. One cannot rule out the possibility of collusion between the plaintiff and the 2nd defendant in O.S. No.28 of 2008. Under such circumstances, the court below ought not to have allowed I.A. No.1807 of 2009. 10. The appellate court ought to have seen that the decree is under challenge and operation of the decree has been stayed. The definite case of the petitioner is that a fraud is being played by respondents 1 and 2. The fact should have been taken note before passing the impugned order. The appeal memorandum gives the case of the petitioner in detail. Therefore the order allowing I.A. No.1807 of 2009 ought not to have been passed. 11. Hence, Ext.P7 order is set aside and I.A. No.1807 of 2009 shall stand dismissed. There will be a direction to W.P.(C) No. 37361/09 6 the Sub Court, Neyyattinkara to take up A.S. No.49 of 2009 and dispose of the same as expeditiously as possible, at any rate within three months from the date of receipt of copy of this judgment. The writ petition is allowed as above. P.BHAVADASAN, JUDGE. mn.