IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 OP(C).No. 1021 of 2010(O) ---------------------------------- C.M.A NO. 30/2009 OF ADDL. DISTRICT COURT, N.PARAVUR AGAINST THE ORDER DATED 13/11/2009 IN IA 799/09 IN OS.112/2009 of SUB COURT, PERUMBAVOOR ........................................................ PETITIONERS: -------------------- 1. M/S.C.P.TIMBERS,O/A.,CHELAMATTOM KARA, CHELAMATTOM(V)KUNNATHUNADU (T),REP.BY MG.PARTNER AJI, AGED 37,S/O.CHERAMPILLY KUNJAPPAN,NOW R/A. ARIVALKUDY HOUSE,SREEMOOLANAGARAM KARA,VADAKKUM BHAGOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 2. M/S.C.P.TIMERS, O/A.,CHELAMATTOM KARA, CHELAMATTOM (V)KUNNATHUNADU (T),REP.BY ITS PARTNER LAANA,AGED 33 YEARS,W/O.AJI, S/O.CHERAMPILLY KUNAPPAN, NOW RESIDING AT ARIVALKUDY HOUSE, SREEMOOLANAGARAM KARA, VADAKKUM BHAGOM VILLAGE KUNNATHUNADU TALUK,ERNAKULAM DISTRICT BY ADVS. SRI.G.RAJAGOPAL SMT.S.LEELALAKSHMI RESPONDENT(S): ------------------------ 1. RATNAMMA, AGED 59 YEARS, W/O.KUNJAPPAN, CHRAMBILLY HOUSE, MALAYATTOOR DESOM MALAYATTOR VILLAGE, ALUVA TALUK ERNAKULAM DISTRICT,PIN-683587 2. KUNJAPPAN, AGED 69 YEARS, S/O.PAPPU, CHERAMBILLY HOUSE,MALAYATTOOR DESOM MALAYATTOOR VILLAGE, ALUVA TALUK ERNAKULAM DIST, PIN-683587 3. SHIBU, AGED 41 YEARS, S/O.KUNJAPPAN, CHERAMBILLY HOUSE, MALAYATTOR DESOM, MALAYATTOOR VILLAGE, ALUVA TALUK ERNNAKULAM DIST PIN-683587 R1 & R2 BY ADVS. SRI.K.NARAYANAN (PARUR) SRI.V.RAJENDRAN (PERUMBAVOOR) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU OP(C).No. 1021 of 2010(O) APPENDIX PETITIONER'S EXHIITS: P1 : TRUE PHOTOCOPY OF THE PLAINT IN O.S.NO: 112/2009 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P2 : TRUE PHOTOCOPY OF INJUCTION APPLICATION I.A NO: 799/2009 IN O.S. NO:112/2009 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P3 : TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A NO: 799//2009 IN O.S.NO.112/2009 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P4 : TRUE PHOTOCOPY OF THE SKETCH AND REPORT FILED BY THE ADVOCATE COMMISSIONER PURSUANT TO THE ORDER IN I.A NO:798 OF 2009 IN O.S.NO:112/2009 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P5 : TRUE PHOTOCOPY OF THE LICENCE AGREEMENT DTD 06/06/2007 EXECUTED BETWEEN THE 1ST PETITIONER AND THE 1ST RESPONDENT. P6 : TRUE PHOTOCOPY OF THE EXCHANGE DEED NO: 940/2009 OF S.R.O PEERUMBAVOOR EXECUTED BETWEEN THE 1ST PETITIONER AND THE 1ST RESPONDENT. P7 : TRUE PHOTOCOPY OF I.A NO. 1103/2009 IN O.S. NO. 82/2009 ON THE FILES OF THE MUNISIFF'S COURT, PERUMBAVOOR FILED BY THE PETITIONERS HEREIN. P8 : TRUE PHOTOCOPY OF THE JUDGMENT DTD 25/05/2009 IN I.A NO.1103/2009 IN O.S. NO. 82/2009 ON THE FILES OF THE MUNISIFF'S COURT, PERUMBAVOOR. P9 : TRUE PHOTOCOPY OF THE ORDER DTD 13/11/2009 IN I.A NO.799 OF 2009 IN O.S. NO. 112/2009 ON THE FILES OF THE SUBORDINATE JUDGES COURT, PERUMBAVOOR. P10 : TRUE PHOTOCOPY OF THE JUDGMENT DTD 04/11/2010 IN C.M.A NO.30/2009 ON THE FILES OF THE DISTRICT COURT, N.PARAVUR. RESPONDENT'S EXHIBITS : NIL //TRUE COPY/ P.A TO JUDGE STU THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1021 of 2010 -------------------------------------- Dated this the 10th day of October, 2011. JUDGMENT It is submitted that 2nd respondent expired. But in view of the decision I propose to take it is not necessary to implead legal representatives of 2nd respondent in this proceeding. It is open to the parties to seek impleadment of legal representatives of 2nd respondent in the suit as provided under law. 2. This Original Petition is in challenge of judgment of learned Additional District Judge, North Paravur in C.M.A.No.30 of 2009 confirming the order passed by learned Sub Judge, Perumbavoor on I.A.No.799 of 2009 in O.S.No.112 of 2009 and directing auction of the timber and logs in plaint B schedule and deposit the sale proceeds in the trial court subject to the result of the suit. The trial court was directed to dispose of the suit as expeditiously as possible, untrammelled by any observations in the said judgment. Ext.P10, judgment is under challenge. 3. Learned counsel for petitioners/plaintiffs contend that petitioners have got right over plaint B schedule as stated in Ext.P5, licence agreement dated 06.06.2007 which has not been recognized by the courts below. Learned counsel for 1st respondent on the other hand would contend that Ext.P5, agreement is not genuine and at any rate, in view of Ext.P6, exchange deed, OP(C) No.1021/2010 2 that agreement cannot survive since Ext.P6 onwards, petitioners cannot claim any right over plaint B schedule on the strength of Ext.P5 even if it is found to be genuine. 4. So far as the direction issued by learned Additional District Judge in Ext.P10, judgment to auction the timber and logs stored in plaint B schedule is concerned, defendants in the suit had challenged the same in O.P.(C) N.1008 of 2010 and that Original Petition was disposed of at the admission stage without notice to the petitioners observing that there is no reason to interfere with the direction issued by the learned Additional District Judge. 5. Learned counsel for petitioners submit that the said decision is without notice to the petitioners. 6. Assuming so, question for consideration is whether this Court should interfere with Ext.P10, judgment. The suit is of the year, 2009 and the dispute is concerning the right claimed by petitioners as per Ext.P5, agreement dated 06.06.2007, genuineness of which is not admitted by the respondents and which, the trial court has observed, can be decided only after trial. I do not find reason to come to a different conclusion at this stage. 7. So far the direction issued by the learned Additional District Judge to auction the timber and logs stored in plaint B schedule is concerned, that will not in any way affect the right of parties since the suit is of the year 2009 and OP(C) No.1021/2010 3 the timber and logs cannot remain idle which will only prejudice the interest of parties. After all, the direction is only to auction the same and deposit the sale proceeds in the trial court which shall be subject to the result of the suit. While disposing of O.P.(C) No.1008 of 2010 I also observed that It is open to the parties or any of them to request learned Sub Judge after the sale is over to deposit the sale proceeds in such a way that it carried interest so that the winner will be benefited by such deposit . In the above view of the matter, I do not find reason to interfere with Ext.P10, judgment even at the instance of petitioners. Resultantly this Original Petition is disposed of directing the learned Sub Judge, Perumbavoor to dispose of the suit (O.S.No.112 of 2009) untrammelled by the observations contained in Ext.P9, order on I.A.No.799 of 2009 (in O.S.No.112 of 2009) and Ext.P10, judgment in C.M.A.No.30 of 2009 of the court of learned Additional District Judge, North Paravur as to the merit of the case. Parties can request learned Sub Judge to expedite trial and disposal of the suit. I.A.Nos.1510 of 2011, 1511 of 2011 and 15747 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks