IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH DECEMBER 2006 / 13TH AGRAHAYANA 1928 WP(C).No. 8 of 2006(A) ---------------------- I.A.2064/04 IN OS.211/2004 of MUNSIFF COURT, TIRUR .................... PETITIONER: ------------ JAMALUDHEEN, AGED 36 YEARS, S/O. MOIDEEN, MELETHIL HOUSE, P.O. KUTTIPPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN SMT.R.MEERA SRI.K.MOHAMMED FAISAL NAHA RESPONDENTS: ------------- AYISHAKUTTY, D/O. THAYYIL KUNJENTHU HAJI, HOUSE NO.11/25, P.O. KUTTIPPURAM, MALAPPURAM DISTRICT. BY // THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.11951/06 IN WPC 8/06 DISMISSED 4/12/2006 SD/-M.SASIDHARAN NAMBIAR,JUDGE. APPENDIX: EXT.P1: COPY OF COUNTER FILED BY PETITIONER AND OTHERS IN IA 1428/04 IN OS 211/04 DT.21/2/05 EXT.P2: COPY OF OBJECTION FILED BY PETITIONER IN IA 2064/04 DT.6.12.05 EXT.P3: COPY OF ORDER OF MUNSIFF IN IA 2064/04 DT.15.12.05 //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.(C) .NO.8 OF 2006 ------------------------------------------ Dated 4th December 2006 JUDGMENT Petitioner is defendant in O.S.211/2004 on the file of Munsiff court, Tirur. Respondent filed I.A.1428/2004, an application under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction. Ex-parte order of temporary injunction was granted. Petitioner appeared and filed objection. In the meanwhile, respondent filed I.A.2064/04, an application under Section 151 of the Code, for police aid to enforce the ex-parte order of injunction. It was allowed under Ext.P3 order. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner was heard. 3. As is clear from Ext.P3 order when I.A.2064/04 was heard by learned Munsiff, it was pointed out by petitioner that serious objection has been filed in the application for injunction and 2 that matter has not been decided and therefore before deciding the question whether respondent is entitled to the order of temporary injunction, police aid may not be granted on the basis of ex-parte order of injunction. But learned Munsiff disregarding the objection allowed police aid. 4. As is clear from the orders passed by the court below, respondent contended that he is in possession of plaint schedule property and defendants are attempting to trespass into plaint schedule property. Prima facie satisfying about a case court below granted an order of temporary injunction without notice. Petitioner appeared and filed objection. As provided under Rule 3A of Order XXXIX of the Code, when an ex-parte order injunction is granted, court is bound to pass final order within 30 days. Even though petitioner filed objection and submitted that application is to be disposed, learned Munsiff granted police aid without deciding the question whether plaintiff has a prima facie case, whether any irreparable injury will be caused if the order is not granted and whether balance of convenience is in favour of plaintiff. Question whether for enforcement of the ex-parte order of injunction, police aid can be 3 granted was considered by learned Single Judge of this court in Kochupennu Ambujakshi v. Veluthakunju Vasu Channar (AIR 1993 Kerala 1962). Following the earlier decision in Georce Mirante v. State of Kerala (1990 (2) KLT 89) held that court shall not interfere in the matter of interim ex-parte order with a direction for police aid and only final order passed under Rule 1 or rule 2 of Order XXXIX of the Code can be enforced with the assistance of police. Ext.P3 order is quashed. Learned Munsiff is directed to dispose of I.A.1428/2004 before considering the question whether respondent is entitled to get police aid or not. Writ petition is disposed of as above. M.SASIDHARAN NAMBIAR, JUDGE. uj.