AMBUJAKSHAN Vs. BHANUMATHY VASANTHA

JUDGEMENT

(1.) THIS petition is filed by the power of attorney holder of defendant No.1 challenging the order of learned Munsiff, Attingal on I.A.No.1543 of 2009 in O.S.No.62 of 2009. That was a suit filed by the respondent for a decree for prohibitory injunction against defendant No.1 and his bother (who, it was revealed had expired a few years before institution of the suit) alienating the suit property or committing waste therein. Respondent also obtained an interim order of injunction in that line. The suit was resisted by defendant No.1 through his power of attorney holder (petitioner herein) and contending inter alia that defendant No.2 had expired a few years prior to the institution of the suit. While so, respondent No.1 sought withdrawal of the suit, permission was granted and the suit was dismissed as withdrawn on 15.06.2009. Petitioner in his capacity as power of attorney holder filed I.A.No.1543 of 2009 under Section 95 of the Code of Civil Procedure (for short, "the Code") claiming compensation from the respondent for obtaining order of temporary injunction without sufficient grounds and instituting the suit without reasonable or probable grounds. That application was resisted by the respondent and it ended in a dismissal. That order is under challenge in this petition. Learned counsel states that defendant No.2 had expired even a few years prior to the institution of suit and that there is lack of reasonableness and probableness in the respondent filing the suit.

(2.) IT would appear that I.A.No.1543 of 2009 (as seen from the cause title of the order) was filed by the petitioner himself instead of defendant No.1 filing the petition through his power of attorney holder (petitioner) and this revision is also filed in the same way. May be, that is a defect in the form. Now the question is whether court below is justified in dismissing I.A.No.1543 of 2009. No doubt, defendant No.2, it is not disputed had expired a few years prior to the institution of the suit. But I must bear in mind that the application for injunction was only against alienation of property and commission of waste therein and the suit, on respondent understanding that defendant No.2 had expired some time prior to the institution of the suit was withdrawn on 15.06.2009. Learned Munsiff has stated that it is not obligatory on the part of the court under Section 95 of the Code to award compensation and that having regard to the facts and circumstances of the case it is not felt necessary that action is to be taken under Section 95 of the Code. IT is seen from the order that learned Munsiff had discussed the question of law and facts involved and come to the conclusion that the request to award compensation cannot be allowed. IT is accordingly that application was dismissed. I do not find reason to interfere with the discretionary jurisdiction exercised by the learned Munsiff. Petition is dismissed.