IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 FAO.No. 82 of 2006() -------------------- I.A.NO.50/2003 IN IOP.32/2002 of SUB COURT, SULTHAN BATHERY .................... APPELLANTS/PETITIONERS 1,2,4 & 6/PLAINTIFFS.1,2,4 & 6: ------------------------------------------------------------------- 1. MAKKIMALA TEA ESTATES (P) LTD., A COMPANY REGD.UNDER THE COMPANIES ACT,1956,HAVING REGD.OFFICE AT 425,DEVAMBA AGRAHAR, MYSORE AND ADMINISTRATIVE OFFICE AT 16/14,2ND CROSS,SHOBHA- NAGAR,AVARAMPALAYAM,COIMBATORE-6,MAKKIMALA TEA ESTATE P.O,CHERAKKARA P.O.MANANTHAVADI VIA.,WYNAD. 2. K. RAMARAJ, S/O. LATE KALI CHETTIAR, AGED 73 YEARS, NOW RESIDING AT 16/14, 2ND CROSS, SHOBHANAGAR, AVARAMPALAYAM, GANAPATHI P.O., COIMBATORE-6. 3. R. VENUGOPAL, S/O. K.RAMARAJ, AGED 48 YEARS, NO EMPLOYMENT, NOW RESIDING AT 16/14, 2ND CROSS, SHOBHANAGAR, AVARAMPALAYAM, COIMBATORE-6. 4. V.K. SUNDARAM, AGED 43 YEARS, VADAKKEPARAMBIL HOUSE, GOLDSMITH, VELILYANNOOR P.O KOTTAYAM DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: RESPONDENT AND PETITIONER 3 AND 5: ----------------------------------------------- 1. K.M. IBRAHIM, AGED ABOUT 60 YEARS, MAIN ROAD, SUNTICOPPA-571 237, COORG DIST., KARNATAKA. 2. NAFEESA IBRAHIM, W/O. K.M. IBRAHIM, AGED ABOUT 54 YEARS, C/O. K.M. IBRAHIM, MAIIN ROAD, SUNTICOPPA-571 237, COORG DIST., KARNATAKA. -2- F.A.O.NO.82/2006 3. K.I. SHERIFF, VALLIYOORKAVU ROAD, ARATTUTHARA, MANANTHAVADI, WAYANAD DISTRICT. 4. K.I. ABDULRAHMAN, C/O.K.M. IBRAHIM, MAIN ROAD, SUNTICOPPA-571 237, COORG DIST., KARNATAKA. BY ADV. K.P.DANDAPANI (CAVEATOR0) SRI.GIBI.C.GEORGE FOR R5 SRI.MILLU DANDAPANI FOR R1 TO 4 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04/07/2008 ALONG WITH FAO.NO.220/06, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- F.A.O.NOS.82 & 220 OF 2006 -------------------------------- Dated this the 4th day of July, 2008 JUDGMENT Raman,J. Both the above appeals arise out of a common order passed in I.A.Nos.50/2003 and 55/2003 in Indigent O.P. No.32/2002 on the file of the Sub Court, Sulthan Bathery. Appellants are petitioners 1, 2, 4 and 6 and plaintiffs 1, 2, 4 and 6 in the court below. Suit was instituted as an indigent person. By the present application plaintiffs sought for an injunction as also for appointment of a Receiver. Suit is one for declaration. By the impugned order both these applications were dismissed, against which the present appeals are preferred. 2. I.A.No.50/2003 is filed for a temporary injunction against cutting of trees, committing waste and alienation. I.A.No.55/2003 is filed for appointment of a Receiver. It is alleged that knowing about the filing of the indigent O.P. respondents 1, 3 and 4 have physically entered the estate and frantically trying to dispose off the land by -2- FAO.Nos82 & 220/2006. sale or share transfer, since they are in possession of the entire share certificates which they had obtained by cheating and breach of trust and even theft against the wishes of the rightful owners. It is also alleged that the lst respondent has cut down large number of jack trees from the plaint schedule property. These were however denied in the counter affidavit filed by the respondents. The court below found that the allegation against the respondents is that they have forged the minutes book with the aid of one Madhavan, an employee of the plaintiff Company. But no witness was examined. The allegation of fraud was thus not proved. There is a finding that the plaintiffs have no locus standi to file the suit representing the company's Managing Director and other Directors. During the relevant time, it is the respondents who are the Managing Director and Directors. Therefore, since the petitioners have not proved a prima facie case and the balance of convenience is in favour of the respondents, the court below was satisfied that no order of injunction could be issued against the defendants/respondents nor a Receiver -3- FAO.Nos82 & 220/2006. could be appointed. The appellants would contend that the court below was not right in law and stating that even when an affidavit is filed, the averments contained therein cannot be accepted, merely for the reason that the person who sworn into the affidavit, was not examined. We find some force in this contention. If the averments made in the affidavit are denied in the counter affidavit filed, then if after consideration, it is not possible to come to a definite conclusion, certainly, the person has to establish the fact by adducing other evidence in the case. In this case the court below prima facie found that the defendants are Managing Director and Directors of the Company and therefore no order of injunction could be issued against them and for that reason also no Receiver could be appointed. The question as to whether respondents are appointed as Directors of the Company in accordance with law on which a final pronouncing cannot be made at this stage. At any rate, this being an interim order, these are all matters to be considered in the suit based on the evidence to be adduced by the parties. But we find that the impugned orders -4- FAO.Nos82 & 220/2006. were passed as early as in 2005 and the appeals were admitted in 2006. But no interim order as such was passed. Therefore, status quo as on the date of passing of the order by the court below continues for the past three years. Therefore, we do not think it is appropriate to effect changes in the status quo as on today by interfering with the order impugned. In the factual situation it is appropriate that the suit itself be disposed of at an early date. Therefore, we direct the court below to dispose of the suit, as expeditiously as possible, at any rate within a period of six months. Both the appeals are dismissed subject to what is stated above. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.