IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 OP(C).No. 1362 of 2011(O) ------------------------------------ PETITIONER ------------------ 1. SIDHIYK, AGED 37 YEARS, S/O.SYED MUHAMMED KUNJU, VATHUTHARA, NIRANAM NORTH, PRESENT SECRETARY, MALIK DINAR MUSLIM JAMAAT. 2. P.A.AMEEN SAKAPHY, AGED 33 YEARS, NIRANAM NORTH P.O., NIRANAM MUSLIM DEENAR PALLI JAMA AT, KADAPRA VILLAGE, THIRUVALLA TALUK. BY ADVS. SRI.P.HARIDAS SRI. SIKKY RAVISHANKAR RESPONDENT(S): ------------------------- ABDUL AZEEZ, AGED 63 YEARS KOTTINATHU HOUSE, NIRANAM, VADAKKUMBHAGAM MURI, KADAPRA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1362 of 2011(O) ------------------------------------------ APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER DT. 27.01.2011 IN IA NO. 1249/2010 IN OS NO. 22/2010 BEFORE THE SUB COURT, THIRUVALLA. EXT.P2 : COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, PATHANAMTHITTA DT. MARCH 2011 EXT.P3 : COPY OF THE DELAY CONDONATION PETITION IN MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, PATHANAMTHITTA DT. MARCH 2011 AS I.A. 213/2011 EXT.P4 : COPY OF THE STAY PETITION IN APPEAL FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, PATHANAMTHITTA DT. MARCH 2011 RESPONDENT'S EXHIBITS: NIL TRUE COPY PA TO JUDGE SMT K.T.SANKARAN, J. ------------------------------ O.P(C)No.1362 OF 2011 ------------------------------ Dated this the 8 th day of April, 2011 JUDGMENT The petitioners are the defendants in O.S.No.22 of 2010 on the file of the Court of the Subordinate Judge of Thiruvalla. The suit was filed by the respondents for permanent prohibitory injunction restraining the first defendant from permitting the second defendant to function as a Imam of Niranam Muslim Deenar Palli Jama At. It is stated that in May, 2010 an interim injunction was granted. The learned counsel for the defendants submitted that the second defendant tendered resignation in December, 2010. However, the general body refused to accept the resignation of the second defendant and asked him to continue. It is also stated that the interim order of injunction was being honored all throughout. Interim injunction was thereafter made absolute. Though the defendants filed an appeal against the order of O.P(C)No.1362 OF 2011 2 temporary injunction, the appeal was dismissed by the District Court. 2. The learned counsel for the petitioners/defendants submitted that on 24.1.2011 the counsel appearing for the defendants reported no instructions in the trial court. On 27.1.2011 an ex parte decree was passed against the defendants. On the same date, namely, 27.1.2011, I.A.No.1249 of 2010 filed by the plaintiff under Rule 2A of Order XXXIX of the Code of Civil Procedure was allowed ex parte and the court below directed the respondents in the application to be detained in civil prison. The petitioners/defendants filed a C.M.Appeal before the District Court, Pathanamthitta challenging the order in I.A.No.1249 of 2010. However, since there was delay in filing the appeal, the appeal was not numbered. I.A.No.213 of 2011 is the application filed by the petitioners herein for condoning the delay of 25 days in filing the C.M.Appeal. It is O.P(C)No.1362 OF 2011 3 stated that I.A.No.213 of 2011 in the C.M.Appeal is not disposed of. It is also stated that a petition for stay was also filed in the C.M.Appeal. However, the stay petition could not be taken up since the delay was not condoned. 3. The grievance of the petitioners is that pending disposal of the application for condonation of delay in the C.M.Appeal, the order in I.A.No.1249 of 2010 is attempted to be executed. Warrant is pending against the petitioners and they are under the threat of being arrested at any time. It is submitted that pending disposal of the application for condonation of delay in the C.M.Appeal and pending consideration of the stay petition, if the petitioners are detained in civil prison, they would be put to irreparable injury and great hardship. 4. The learned counsel for the respondent/decree holder submitted that there was O.P(C)No.1362 OF 2011 4 deliberate violation of the order of injunction and that the petitioners do not deserve any sympathy. Knowing full well that the court passed ex parte decree, even thereafter, the defendants indulged in violating the order of injunction. 5. The defendants have filed C.M.Appeal challenging the order in I.A.No.1249 of 2010. There is a delay of 25 days in filing the appeal. They have also filed a stay petition to stay the order in I.A.No.1249 of 2010. The stay petition could not be taken up since the delay is not condoned. At the same time, the petitioners are about to be detained in civil prison. Unlike interference in the case of delivery or execution of the decree in respect of immovable property, this is a matter affecting the personal liberty of individuals. Though strictly speaking, the Original Petition need not be entertained, the fact remains that if it is not entertained, the petitioners would be imprisoned in civil jail. If ultimately O.P(C)No.1362 OF 2011 5 their appeal is allowed, the petitioners would not be placed in the same position which they occupied before the order of detention. In other words, the mischief already caused to them cannot be repaired by restitution. 6. In these circumstances, I am of the view that jurisdiction of this court under Article 227 of the Constitution of India is to be exercised in this case to advance the cause of justice. Accordingly, the Original Petition is disposed of as follows: a) The District Court, Pathanamthitta shall dispose of I.A.No.213 of 2011 in the C.M.Appeal filed by the petitioners challenging the order in I.A.No.1249 of 2010 in O.S.No.22 of 2010, Sub Court, Thiruvalla, as expeditiously as possible and at any rate before 15 th O.P(C)No.1362 OF 2011 6 June, 2011. b) Till the disposal of I.A.No.213 of 2011 mentioned above, the order in I.A.No.1249 of 2010 in O.S.No.22 of 2010 Sub Court, Thiruvalla shall not be implemented. Warrant, if any, issued against the petitioners shall be withdrawn. c) The learned counsel for the petitioners submitted that the petitioners undertake not to seek adjournment before the District Court in I.A.No.213 of 2011 in the C.M.Appeal mentioned above. K.T.SANKARAN, JUDGE. cms