IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 FAO.No. 340 of 2010() -------------------------------- IA. NO.1802/2010 IN OS. 227/2010 of SUB COURT, OTTAPPALAM .................... APPELLANT/2ND PLAINTIFF ------------------------------------------- NABEESUMMA,W/O.IBRAHIM,KADUVANGATTIL HOUSE,CHERPULASSERY AMSOM DESOM, IN OTTAPPALAM TALUK. BY ADVS. SRI.V.K.BALACHANDRAN SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): DEFDNDANTS 1 TO 4 AND IST PLAINTIFF ------------------------------------------------------------------------------------- 1. PATHUMMA,W/O.LATE MUHAMMEDKUTTY, KALLARAKKAL HOUSE, CHERPULASSERY AMSOM DESOM, IN OTTAPPALAM TALUK 679 101. 2. NOORJAHAN,D/O.MUHAMMEDKUTTY, KALLARAKKAL HOUSE, CHERPULASSERY AMSOM DESOM, IN OTTAPPALAM TALUK 679 101. 3. JAMEELA,MUHAMMEDKUTTY, KALLARAKKAL HOUSE, CHERPULASSERY AMSOM DESOM, IN OTTAPPALAM TALUK 679 101. 4. RASHEEDA,MUHAMMEDKUTTY, KALLARAKKAL HOUSE, CHERPULASSERY AMSOM DESOM, IN OTTAPPALAM TALUK 679 101. 5. SAINUDHEEN,S/O.LATE AMEER, KALLARAKKAL HOUSE,CHERPULASSERY AMSOM DESOM, OTTAPPALAM TALUK, 679 101. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ FAO No.340 of 2010 ------------------------------------------------------------------------ Dated 22nd October 2010 Judgment Thottathil.B.Radhakrishnan, J. One among the two plaintiffs in a suit for partition is the appellant. She challenges the order of the court below, dismissing an application for temporary injunction to restrain the defendants from alienating the suit property or committing any act of waste or installing any mobile tower in the suit property. 2. The suit property originally belonged to Kunuthumma. She had two children – Khadeejumma and Muhammedkutty. In defence to the application, the defendants produced Ext.B1 registered release deed by Khadeejumma in favour of some among the defendants. On the basis of this registered release deed, the court below took the view that the plaintiffs do not have a prima facie case to sustain the order of temporary injunction. FAO No.340/10 2 Though the learned counsel for the appellant states that his client had filed a replication, essentially challenging Ext.B1 as a fraudulent one and attributing that Khadeejumma did not have the mental capacity to execute any such document, we are of the view that on the face of Ext.B1 registered document, the court below was justified in taking the view that prima facie, the order of temporary injunction cannot be granted. Obviously, if the plaintiffs succeed at trial ultimately, any transaction pending suit would essentially be defeated by lis pendens. Under such circumstances, we are of the view that irreparable injury is not demonstrated if temporary injunction is refused. The contesting defendants have a case that on the strength of Ext.B1, they have absolute right to property and they have entered into an agreement under which they have permitted a mobile telephone operator to install a tower. The balance of convenience is not in favour of restraining the defendants from giving effect to that agreement in accordance with law. FAO No.340/10 3 3. For the aforesaid reasons, we do not find any ground to entertain this appeal and the same is accordingly dismissed, clarifying that the views expressed in the impugned order and also the observations in this Judgment would not stand in the way of the parties at trial and the court below would ultimately decide the suit, untrammeled by anything stated herein above or in the impugned order. Thottathil.B.Radhakrishnan, Judge. P.Bhavadasan, Judge sta FAO No.340/10 4