MURALEEDHARAN Vs. SHEELA

JUDGEMENT

(1.) THE challenge in this Original Petition brought under Article 227 of the Constitution is to Ext.P8, the ad interim order of injunction passed by learned Munsiff, Kollam on I.A.No.2971 of 2011 in O.S.No.517 of 2011. That is a suit filed by respondents 1 and 2 against petitioner for a decree for prohibitory injunction to restrain petitioner from trespassing into plaint C schedule or any other portion of plaint A schedule property, from resorting to any other mischievous act threatening their absolute right over A schedule property or from effecting sale of B schedule property by including plaint C schedule or any other portion of plaint A schedule. In plaint schedule, the A schedule is described as 4.387 cents while B schedule is described as 3.150 cents. Plaint C schedule is described as a two feet wide area forming the extreme northern portion of plaint A schedule. According to the respondents, plaint A schedule belongs to them while plaint B schedule belongs to the petitioner. THEy alleged among other things that petitioner who owns plaint B schedule (according to them, 3.150 cents) intended to trespass into the northern portion of plaint A schedule and annexe the two feet wide northern portion to the plaint B schedule. It is accordingly that respondents sought relief against petitioner. Learned Munsiff obviously acting on the affidavit of respondents and the documents produced along with the plaint granted Ext.P8, order as above stated.

(2.) LEARNED Senior Advocate appearing for petitioner has contended that the suit and the ad interim order of injunction are nothing but an abuse of the process of law and the grant of injunction amounts to transversity of justice in that a long drawn litigation with the second respondent also on the party array had come to a close and accordingly petitioner was allotted 4.467 cents of land. It is contended by learned counsel that properties were originally partitioned as per a document which was challenged in the civil court in O.S.No.488 of 2002 by one of the sisters of petitioner and ultimately the shares of parties ignoring the partition deed was fixed as per the decree in A.S.No165 of 2006 of the learned District Judge, Kollam. Pursuant to that decree, shares were allotted to the parties and accordingly, the 4.467 cents was delivered to the petitioner as seen from Exts.P3 and P4, full satisfaction was recorded and the execution petition was closed. The second respondent who was a party to that proceeding has filed the suit along with his wife, the first respondent alleging that extent of property given to the petitioner as per the above decree is only 3.150 cents which is patently wrong. It is contended by learned Senior Advocate that in the above circumstances this Court is required and entitled to interfere under Article 227 of the Constitution and quash the impugned order. It is pointed out that petitioner is a heart patient and has entered an agreement for sale of the property belonging to him and allotted to him as per the decree in A.S.No.165 of 2006 of the District Court, Kollam and the order of injunction prevents petitioner from honouring his commitment after the said agreement. LEARNED Senior Advocate has placed reliance on the decisions in State of Kerala v. Babu (2003 (2) KLT 526 - paragraph 5), Abdul Khader and another v. Suburban Chit Funds (P) Ltd. (ILR 2006 (1) Kerala 619 - paragraph 9) and Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd. (2006(2) KLT 525).

(3.) CERTAINLY the grievance aired by learned Senior Advocate on behalf of petitioner requires consideration. The Statute prescribes (See Order 39, Rule 3A) that when an order of injunction is passed without notice to the opposite party, the court has to make every endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted. There is no reason to think that learned Munsiff will not comply with the said statutory requirement unless there are compelling reasons which is required to be recorded. In the circumstances the appropriate course open to the petitioner is to make application as provided under Rule 3A of Order 39 of the Code and request learned Munsiff to dispose of that application as expeditiously as possible. Having regard to the circumstances learned Munsiff, Kollam is directed to expedite disposal of I.A.No.2971 of 2011 in O.S.No.517 of 2011 in case objection to that application is preferred by the petitioner. With the above direction this Original Petition is dismissed.