IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 FAO.No. 174 of 2008() --------------------- AGAINST THE ORDER IN IA 4191/2007 IN OS.297/2005 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/PETITIONER/PLAINTIFF:- ---------------------------------------------------- T.P. VINEESH, S/O UPENDRAN, THZHEPURAYIL HOUSE, PUTHIYANGADI AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S)/RESPPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. PADMAVATHI VIJAYAN, W/O LATE VIJAYAN, KOYILOTHPARIYANGATT HOUSE, PUTHIYANGADI AMSOM, DESOM, KOZHIKODE. 2. DHANYA, D/O LATE VIJAYAN, KOYILOTHPARIYANGATT HOUSE PUTHIYANGADI AMSOM, DESOM, KOZHIKODE. 3. VIDYA, D/O LATE VIJAYAN, KOYILOTHPARIYANGATT HOUSE, PUTHIYANGADI, AMSOM, DESOM, KOZHIKODE. ADV. SRI.P.SANTHARAM FOR R1-3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 174 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2009. JUDGMENT Raman, J, Appellant is the plaintiff in O.S. 297 of 2005 and the petitioner in I.A. 4191 of 2007 on the file of the Subordinate Judge's Court, Kozhikode. Respondents are the defendants. Suit is one for specific performance of the agreement dated 6.6.2005 in respect of an extent of 3 cents of land situate in R.S. No.150/3 of Puthyangadi Village. According to the plaintiff, the plaint schedule property belong to the husband of the first defendant and defendants 2 and 3. After the death of the father, the said property was inherited by the defendants and is in their possession and enjoyment. While so, they entered into an agreement for sale of the plaint schedule property for a total consideration of Rs.2,50,000/- and a sum of Rs.50,000/- was paid as advance. Three months time was stipulated for completion of the transaction. But it is FAO.174/2008. 2 alleged that the time for completion of the transaction was reduced to one and a half months by the defendants. The plaintiff came to know that the third respondent was a minor and that defendants 1 and 2 had defrauded the plaintiff stating the age of the third defendant as 19 years. He came to know that there is legal impediment in purchasing the same without sanction of the court. He approached the mediators and offered Rs.1,00,000/- more as advance so that the sale deed could be executed within one week from 26.10.2005 when the third respondent becomes a major. But the defendant insisted for the registration of the sale deed stating that the third respondent's age is 19 years. Notice was issued thereafter and the suit was instituted. Steps were taken allegedly by the defendants to alienate the property and an application along with the suit was filed for restraining the defendants from alienating the property, which was allowed. Written statements were also filed. It is alleged by the defendants that the sale FAO.174/2008. 3 agreement is a fabricated one. The property situate in a seashore and lying in low line area. There was a building in the suit property. When there was an attempt to cut and remove the trees standing thereon and trying to make big holes in the plaint schedule property, as a result of which part of the building collapsed, an application for violation of the injunction was made and that is pending. In the present application, the prayer is for a mandatory injunction against the respondents directing them to reconstruct the house in to its original state as was at the time of execution of the agreement. Failing which, permission was sought to make repairs to restore the building into its original condition. That was eventually dismissed, against which the present appeal is filed. 2. The main grievance raised in the appeal is that some of the observations contained in the judgment will injuriously affect the appellant during the trial of the suit. According to the FAO.174/2008. 4 appellant, some of the observations made in the order under appeal is unnecessary and the court ought not have made any such finding. 3. We have heard the parties. 4. Admittedly, an injunction was sought for and granted. Alleging violation of the injunction, another application is filed. While so, the present application was filed to do the necessary repairs and to restore the building to its original condition. Normally, such a prayer cannot be granted, since the question as to whether the building was damaged by the defendants or collapsed of its own are matters pending consideration. Admittedly the plaintiff was not put in possession of the property. In the above circumstances, and on the materials available on records, it cannot be said that the appellant is entitled to an order as sought for. However, we find that some of the observations contained in the order under appeal may not be quite FAO.174/2008. 5 necessary for a proper disposal of a petition of this nature. However, this being an interim application, whatever observation made can only be understood as a prima facie view expressed by the court below for the limited purpose of disposing of the interim application. In the circumstances, the only direction called for is to expedite the suit and dispose of the same in accordance with law untramelled by the observations contained in the order impugned. Accordingly, the appeal stands dismissed subject to the above direction. P.R. Raman, Judge P. Bhavadasan, Judge sb.