IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 7153 of 2009(O) ------------------------------------- CMA.NO.97/2008 OF DISTRICT COURT, PATHANAMTHITTA, OS.NO.326/2008 OF MUSNIFF COURT, ADOOR. .................... PETITIONER: ------------------- T.B.MOHAMMED, AGED 48 YEARS, S/O.BABAKUNJU, THENNATTU HOUSE, MALIKOM PEEDIKA MURI, AALANGATTU VILLAGE, PARAVOOR TALUK. BY ADVS. MR. K.SHAJ, MR.SAJJU.S, SMT.REXY ELIZABETH THOMAS. RESPONDENTS: ----------------------- 1. BABY, AGED 65 YEARS, S/O.DANIEL, BINDU BHAVAN, EDATHITTA MURI, KODUMON VILLAGE. 2. AMMINI BABY, AGED 52 YEARS, W/O.BABY, BINDU BHAVAN, EDATHITTA MURI, KODUMON VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, ALONG WITH W.P.(C). NO. 7165/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.7153 of 2009 & W.P.(C).No.7165 of 2009 --------------------------------------------- Dated this the 11th day of March, 2009 JUDGMENT The plaintiff in O.S.No.326 of 2008 on the file of the court of the Munsiff of Adoor challenges in these Writ Petitions the judgment dated 19th December 2008 in C.M.A.No.97 of 2008 and the order dated 19th December 2008 in I.A.No.1104 of 2008 in C.M.A.No.97 of 2008 on the file of the District Court, Pathanamthitta. 2. The petitioner on the one hand and the respondents on the other entered into an agreement for sale dated 28.12.2007 by which the respondents agreed to sell an extent of 38 cents of land for a consideration of Rs.31,50,000/- within a period of six months from the date of agreement. The petitioner paid a sum of Rs.50,000/- as advance. There is a clause in the agreement that the petitioner would be entitled to run the saw mill from 1.1.2008. It is also stipulated in the agreement that if the transaction does not take place due to the default on the part of the buyer, the sellers would be entitled to sell the property to WPC No.7153 & 7165/2009 2 others after ten days of the last date fixed for completing the transaction. The petitioner filed the suit for an injunction restraining the respondents from forcibly evicting the petitioner from the property or causing any obstruction to the running of the saw mill. The trial court dismissed the application for temporary injunction as per the order dated 18th September 2008. That order was confirmed in appeal by the District Court in C.M.A.No.97 of 2008. W.P.(C) No.7153 of 2009 is filed by the petitioner challenging the order passed by the trial court and the judgment of the lower appellate court. In C.M.A.No.97 of 2008, the petitioner filed an application for an order to restore the electricity connection to the saw mill. That application was dismissed on the date on which the C.M.A. was dismissed. The said order is under challenge in W.P.C No.7165 of 2009. 3. The court below took into account all the relevant facts. As against the sale consideration of Rs.31,50,000/-, the petitioner had paid only Rs.50,000/-. The possession of the property as such was not transferred in favour of the petitioner. He was allowed only to run the saw mill. There are stipulations in the agreement that on the failure of the petitioner (buyer) to WPC No.7153 & 7165/2009 3 perform his part of the contract within the stipulated time, the respondents (sellers) would be entitled to assign the properties to other parties after ten days of the date fixed for completing the transaction. It has come out in evidence that the respondents issued a notice to the petitioner requesting him to pay the balance consideration and get the property assigned in his favour. That notice was refused to be accepted by the petitioner. At the time when the suit for injunction was filed by the petitioner and till the application for injunction was disposed of by the trial court, the petitioner had not filed any suit for specific performance. The balance of convenience was also taken note of by the court below and it was held that it is in favour of the respondents. The electricity connection to the saw mill was disconnected. Therefore, the petitioner is not running the saw mill. The contention of the petitioner is that there was a license and that on termination of the license, he is entitled to a reasonable time to vacate. It is also submitted on behalf of the petitioner that the petitioner is in settled possession and he cannot be evicted without due process of law. The counsel for the petitioner pointed out that the petitioner has raised a plea of WPC No.7153 & 7165/2009 4 irrevocable license and that he is entitled to the protection under Section 60(b) of the Easements Act. On a careful consideration of the pleadings, I do not find any such pleading of irrevocable license having been taken by the petitioner. The courts below were not inclined to grant temporary injunction in favour of the petitioner. The petitioner has paid only a nominal sum of Rs.50,000/- to the respondent and he did not pay any license fee or rent to the respondents for running the saw mill in spite of a request having been made for the same. 4. The learned counsel for the petitioner submitted that in October 2008, the petitioner has filed a suit for specific performance and that an interim injunction was granted restraining the respondents from alienating the property. That suit is pending. The pendency of the suit for specific performance is not a ground for granting temporary injunction as prayed for in the present suit. The courts below thought that the petitioner is not entitled to the discretionary relief of injunction. To arrive at that conclusion all the facts and circumstances of the case and the evidence on record were taken note of. There is no ground for interfering with the WPC No.7153 & 7165/2009 5 concurrent finding arrived at by the courts below. The contentions put forward by the petitioner are not just and reasonable. The discretionary relief of injunction cannot be granted in favour of the petitioner, in the facts and circumstances of the case. The Writ Petitions are devoid of merits and they are accordingly dismissed. The trial court shall dispose of the suit untrammelled by the observations contained in the order of the trial court, judgment of the lower appellate court in C.M.Appeal and this judgment. K.T.SANKARAN, JUDGE csl