IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 FAO.No. 255 of 2011 ---------------------------- AGAINST THE ORDER DATED 29.6.2011 IN IA No.3052/2011 in OS.451/2011 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT (S):PETITIONER/PLAINTIFF: ---------------------------------------------------------- RAJEEVAN, AGED 44, S/O.RAMAN, CHULLIKKAT HOUSE, UDAYAMPEROOR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY RESPONDENT(S): RESPONDENT/DEFENDANT: ----------------------------------------------------------------- SIVADASAN, AGED 46, S/O.RAMAN, CHULLIKKAT HOUSE, UDAYAMPEROOR MURI, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.255 of 2011 ----------------------------------------- Dated, this the 27th day of October, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the plaintiff in a suit for partition. Defendant is his own brother. Appellant filed application seeking temporary injunction restraining the defendant from alienating the plaint schedule property and committing waste in the property. The trial court has partially allowed the application and injuncted the respondent from committing acts of waste. However, the trial court noticed and approved apparently the argument of the learned counsel for the respondent that he has every right to alienate his share of the property and that cannot be injuncted. It is against the said portion of the impugned order the appellant has filed this appeal. 2. We heard the learned counsel for the appellant. Learned counsel for the appellant would say with reference to Order XXXIX Rule 1 of Code of Civil Procedure that it is not necessary that the alienation must be illegal, that the court could pass an order of injunction. It is also possible on the strength of F.A.O.No.255 of 2011 -2- the words used in Order XXXIX Rule 1 (a) that even a legal transfer can be injuncted. We have difficulty in accepting the said proposition. An order of injunction besides being an equitable relief and also a discretionary one requires establishment of prima facie case which means that there must be some right in favour of the petitioner to seek an order of injunction. If the defendant has a right to alienate we fail to understand how the plaintiff can still maintain application for injunction. In this case the trial court has found that the defendant has every right to alienate his undivided share. No doubt, according to him, it is purchased for the purpose of a way. We do not think that the appellant has made out any case for interfering with the impugned order. The appeal fails, and it is dismissed in limine. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS