IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 OP(C).NO. 3873 OF 2011(O) -------------------------------------- CMA.59/2011 OF SUB COURT, NEDUMANGAD OS.811/2011 OF PRL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONERS: ---------------------- 1. JAYAKUMAR,AGED 47 YEARS,S/O.ANACHI PERMAL ACHARI,UTHRADAM,MYTHRI NAGAR, VENJARAMOODU,THIRUVANANTHAPURAM. 2. KUMARI SELVI,AGED 47 YEARS,D/O.ANACHI PERMAL ACHARI,UTHRADAM,MYTHRI NAGAR,VENJARAMMOODU, THIRUVANANTHAPURAM. BY ADV. SRI.P.V.ANIL RESPONDENT(S): ------------------------- DR.HILUR MUHAMMED,KUNNUHPURATH VEEDU, ATTIMPURAM,PANAVOOR.P.O,NEDUMANGAD,TRIVANDRUM, MANAGING DIRECTOR,M/S.BANARAZ GARMENTS TRADERS (INDIA)PVT.LTD.695568. ADV. SRI.M.SREEKUMAR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3873 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXT-P1: TRUE COPY OF THE ORDER DATED 10/11/2011 IN I.A.8971/2011 OF PRL.MUNSIFF COURT,NEDUMANGAD. EXT-P2: TRUE COPY OF THE I.A.9349/2011 FILED BY THE RESPONDENTS BEFORE THE PRL.MUNSIFF COURT,NEDUMANGAD. EXT-P3: TRUE COPY OF THE I.A.9350/2011 FILED BY THE RESPONDENT BEFORE THE PRL.MUNSIFF COURT,NEDUMANGAD. EXT-P4: TRUE COPY OF THE I.A.9352/2011 FILED BY THE PETITIONERS BEFORE THE PRL.MUNSIFF COURT,NEDUMANGAD. EXT-P5: TRUE COPY OF THE AFFIDAVIT DATED 21.11.2011 FILED BY THE PETITIONERS BEFORE THE PRL.MUNSIFF COURT,NEDUMANGAD. EXT-P6: TRUE COPY OF THE JUDGMENT DATED 22.11.2011 IN OP(C)3800/11 OF THIS HON'BLE COURT. EXT-P7: TRUE COPY OF THE AFFIDAVIT DATED 23/11/2011 FILED BY IST PETITIONER BEFORE THE PRL.MUNSIFF COURT,NEDUMANGAD. EXT-P8: TRUE COPY OF CMA.59/2011 FILED BY THE PETITIONERS BEFORE THE SUB COURT,NEDUMANGAD. EXT-P9: TRUE COPY OF I.A.NO.1307/2011 IN CMA.59/2011 FILED BY THE PETITIONERS BEFORE THE SUB COURT,NEDUMANGAD. EXT-P10: TRUE COPY OF THE AFFIDAVIT DATED 25.11.2011 FILED BY THE IST PETITIONER BEFORE THE SUB COURT,NEDUMANGAD. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3873 of 2011 ==================================== Dated this the 07th day of December, 2011 J U D G M E N T Petitioners are defendants 1 and 2 in O.S. No.811 of 2011 of the court of learned Principal Munsiff, Nedumangad. That is a suit filed by the respondent for a decree for permanent injunction against his forcible eviction from the building. Respondent filed I.A. No.8971 of 2011 for an order of temporary mandatory injunction to direct petitioners open the rear/front doors or permit the respondent to break open the lock. That application was allowed by the learned Munsiff after hearing the parties as per Ext.P1, order dated 10.11.2011. Petitioners filed O.P(C) No.3800 of 2011 in this Court to issue a copy of Ext.P1, order and in the meantime to direct learned Munsiff to keep in abeyance further proceedings. This Court disposed of that Original Petition as per Ext.P6, judgment dated 22.11.2011 directing issue of a copy of the order and in the meantime, to keep in abeyance that order till 26.11.2011. According to the petitioners, on 23.11.2011 they filed affidavit in the court below referring to Ext.P6, judgment with O.P(C) No.3873 of 2011 -: 2 :- a request to keep further proceedings in abeyance till 26.11.2011 but learned Munsiff proceeded to pass orders on subsequent applications filed by the respondent to enforce the order dated 10.11.2011. Thereon petitioners filed this Original Petition seeking a direction to the learned Munsiff to pass orders on Exts.P8 and P9, applications within a time limit to be fixed by this Court and to direct learned Munsiff not to proceed with the order dated 23.11.2011. 2. In view of the statement made by petitioners, I called for a report from the learned Munsiff through the Registrar (Judicial). He has filed a report after contacting the learned Munsiff. I have gone through the report where the learned Munsiff has explained the factual situation. I do not find any refusal or inaction on the part of the learned Munsiff in complying with the order of this Court. Hence it is not necessary to go into that question further. 3. Coming back to Ext.P1, order dated 10.11.2011 it is seen that petitioners have challenged the said order in C.M.A. No.59 of 2011 in the court of learned Sub Judge, Nedumangad and sought for stay of operation of the order dated 10.11.2011. But after hearing both sides learned Sub Judge dismissed the O.P(C) No.3873 of 2011 -: 3 :- application for stay on 29.11.2011. 4. Learned counsel for petitioners contends that some of the articles of respondent are still in the building in question, respondent had surrendered vacant possession of the building to the petitioners, handed over the key also and sought time for removal of the rest of the articles belonging to him. But in the meantime respondent changed mind and filed the suit claiming that he is in possession. 5. Respondent contended that the said claim of petitioners is not correct and that respondent continues to be in possession and enjoyment of the building but he is not able to enjoy the building on account of the closure of the rear/front doors. It is contended by learned counsel that request for stay made in the C.M. Appeal was dismissed by the learned Sub Judge, that order is not challenged and hence the request for keeping the order in abeyance may not be granted. Learned counsel pointed out the difficulty being experienced by the respondent due to his inability to enter his place of business. 6. Learned counsel for petitioners states that a copy of the order dismissing the application for stay preferred in the C.M. Appeal has not so far been issued to the petitioners and hence O.P(C) No.3873 of 2011 -: 4 :- petitioners are not able to challenge the said order. 7. Since the C.M. Appeal is pending, I do not find it proper to go into the rival contentions raised by the parties. But having regard to the claim made by parties it is appropriate that the C.M. Appeal is disposed of as early as possible and in the meantime the present position is maintained. Original Petition is disposed of as follows: (a) Learned Sub Judge, Nedumangad is directed to dispose of C.M.A. No.59 of 2011 within two weeks from this day. (b) It is directed that execution of the order dated 10.11.2011 on I.A. No.8971 of 2011 in O.S. No.811 of 2011 of the court of learned Principal Munsiff, Nedumangad will stand in abeyance for a period of two weeks from this day or till orders are passed in the C.M. Appeal, whichever is earlier. (c) Learned Sub Judge, Nedumangad is directed to dispose of the appeal untrammelled by O.P(C) No.3873 of 2011 -: 5 :- the observations contained in the order passed on the application for stay preferred in the C.M. Appeal or in this judgment. THOMAS P. JOSEPH, JUDGE. vsv