NIKUNJAM CONSTRUCTIONS PRIVATE LIMITED Vs. JAYAPRAKASH SIVASANKARAN NAIR

JUDGEMENT

(1.) THE appointment of a commission by the CDRF, Thiruvananthapuram in CC.357/11 is being vehemently challenged in this revision petition by the opposite parties on the ground that the Forum below had no jurisdiction to grant such an order. As per the impugned order dated 30.4.12 in IA No. 11/12 filed by the complainant, the Forum below had appointed a commission to report about the nature of the complex as per the approved plan and also the present status of the complex.

(2.) THE short question that is to be answered is whether the Forum below had any such jurisdiction or power to appoint a commission to inspect the premises in question when there is already an injunction order passed by the Forum below restraining and prohibiting the counter petitioners/opposite parties from converting the space kept in the residential complex into a commercial area and to prevent them from alienating the same to third party. The learned counsel for the revision petitioners submitted before us that the appointment of a commission to inspect the disputed premises is unwarranted in the facts and circumstances of the case and hence the same is illegal. It is his very case that the opposite patties have admitted that there is commercial space owned by them and having admitted the fact that there is commercial space, there is no occasion or reason for the forum below to appoint a commission to verify whether there is commercial space or not. The learned counsel has also relied on the decision of the Hon'ble High Court in W.P. (C)No. 7693/10 [2010 (2) KLT228] wherein it is held that in passing interlocutory orders the Forums constituted under the Consumer Protection Act also have to look into the points of prima -facie case, balance of convince and irreparable loss and Forums are not expected to pass orders in every applications; without looking into the fact that the opposite parties are not put to harassment and difficulties at the end of the trial of the case. The learned counsel has also relied on an earlier decision by the Hon. High Court in Black Marble Granites v. Biju Wherein it is held that an order of injunction granted ex -parie causes injury to the person against whom the order is granted invoking the ratia of the above decisions the learned Counsel submitted before us that the order appointing the expert commission to inspect the premises and prepare the report about the present nature and status of the complex is highly illegal and hence is liable to be set aside.

(3.) THE revision petition was originally posted to 2.7.12 after admission hearing. The counter petitioner, on filing the vakalath, had advanced the hearing and the matter was taken up for hearing on 8.6.2012. The learned counsel for the revision petitioners and the Learned counsel for respondent were heard.