Partly allowed

Koovummal Kunhipathu v. Mukkathkellandy Asya Hajjumma

Kerala HC3 Feb 2011OP(C)/461/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition challenging a rent control decree execution order denying injunction. The court held there was no irreparable injury or jurisdictional error. It partly allowed the petition by directing the lower appellate court to expeditiously dispose of the pending appeal.

What did the court decide?

Direction to the Subordinate Judges Court, Vadakara to dispose of the appeal A.S.No.35 of 2010 expeditiously.

Koovummal Kunhipathu Vs Mukkathkellandy Asya Hajjumma — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 OP(C).No. 461 of 2011(O)

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------------------------

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AS.35/2010 of SUB COURT, VADAKARA OS.58/2010 of MUNSIFF COURT, NADAPURAM

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PETITIONERS

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--------------------

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KOVUMMAL KUNHIPATHU, D/O.KOVUMMAL KUNHABDULLA, KORANGAD POOZHIKKUNNAM HOUSE, RAROTH AMSOM, KATTAVOOR DESOM, POST THAMARASSERI, KOZHIKODE DISTRICT.

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BY ADVS. SRI.K.I.MAYANKUTTY MATHER SMT.RUKHIYABI MOHD KUNHI

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RESPONDENTS:

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-----------------------

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1. MUKKATHKOLLANDY ASYA HAJJUMMA, D/O.ALIKUTTY, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508.

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2. ASYA, W/O.MOIDU, VELUTHAPARAMABTH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY,

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VATAKARA TALUK, KOZHIKODE-673508.

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3. SAMEERA, D/O.MOIDU, MUKKATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508.

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4. ALIKUTTY, VELUTHAPARAMBATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508.

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OP(C).No. 461 of 2011(O)

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-----------------------------------------

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5. AARIF, VELUTHAPARAMBATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508.

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6. SHAFEEK, VELUTHAPARAMBATH, KUTTIADY AMSOM, THONDIPOYIL DESOM, POST KUTTIADY, VATAKARA TALUK, KOZHIKODE-673508.

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BY. ADV. SRI.GEORGE THOMAS (MEVADA), SENIOR ADVOCATE BY ADVOCATE SRI.MANU GEORGE KURUVILA

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN, J .

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O.P(C).No.461 OF 2011

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Dated this the 3rd day of February, 2011

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JUDGMENT

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The petitioner is the plaintiff in O.S.No.58 of
2010 on the file of the Court of the Munsiff of

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Nadapuram. The suit was filed for recovery of

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possession of the plaint schedule immovable

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properties. The trial court, as per the judgment
and decree dated 22nd October,2010, held that the
plaintiff is not entitled to get a decree for
recovery of possession.

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2. Challenging the judgment and decree of the

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trial court, the plaintiff filed A.S.No.35 of 2010
on the file of the Sub Court Vadakara. In that
appeal, the appellant/plaintiff filed I.A.1340 of
2010 for an injunction restraining respondents from
taking surrender of building situated in item 3 of

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the plaint schedule property from the tenant
therein. The Lower Appellate Court dismissed the

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O.P(C).No.461 OF 2011 2

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application for injunction, as per the order dated
19th January, 2011, which is under challenge in this
Original Petition. The learned counsel for the
petitioner submitted that the order of injunction
sought for would really come under Rule 7 of Order
39 of the Code of Civil Procedure and therefore,
the order is not appealable under Order 43 Rule 1
(r). No serious contention is raised by the
respondent challenging the maintainability of the
Original Petition.

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3. The case of the plaintiff is that the

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property belonged to one Ayanki Pathu and others.
Ayanki Pathu leased out the property to one
Alikutty as per registered deed executed in the
year 1957. Alikutty died in the year 1968.
Defendants 1 to 6 are the legal representatives of
Alikutty. The plaintiff is claiming right and title
as one of the legal representatives of Ayanki
Pathu.

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O.P(C).No.461 OF 2011 3

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4. The defendants claimed that they are

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entitled to the protection under Section 106 of the
Kerala Land Reforms Act, as the lease in question
is a commercial lease and as the predecessor of the
defendants had constructed the building in the
property before 20th May, 1967.

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5. As stated above, the trial court did not

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accept the case put forward by the plaintiff. On
the other hand, the case put forward by the
defendants that they are entitled to the protection
of the Kerala Land Reforms Act was accepted by the
trial court.

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6. The building in item 3 of Plaint schedule
property is in the possession of one Abdul Rasheed
as a tenant. The first defendant in the present
suit filed a Rent Control Petition to evict the
tenant from the building. The Rent Control Petition
was allowed. The tenant took up the matter up to
Supreme Court. It is stated that before the

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O.P(C).No.461 OF 2011 4

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Supreme Court, Abdul Rasheed, the tenant, gave an
undertaking that he would vacate the building on or
before 19.11.2010. The tenant did not vacate the
premises. The Execution Proceedings are going on.
The injunction sought for by the petitioner in the
application filed by him in the Appeal is to
restrain the defendants from getting possession
from Abdul Rasheed. In effect, the prayer for
injunction if granted, it would have the effect of
injuncting the decree holders in the Rent Control
Petition from executing the decree which they have
obtained. The court below held that the petitioner
is not entitled to get the injunction prayed for.
Even if the tenant is evicted at the instance of
the defendants in the present suit, no irreparable
injury would be caused to the petitioner/plaintiff.

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The prayer in the suit is to get recovery of

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possession. If the petitioner succeeds in the

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appeal, by the mere fact that the tenant was
evicted from the building, the plaintiff would not
lose anything. The balance of convenience was

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O.P(C).No.461 OF 2011 5

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certainly not in favour of granting injunction. No

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irreparable injury would be caused to the
petitioner if injunction is not granted. The court
below considered all the relevant facts and held
that the prayer for injunction cannot be granted.
There is no error of jurisdiction or error of law
warranting interference under Article 227 of the
Constitution of India. The Original Petition lacks
merits in so far as it relates to challenge against
the order passed by the court below.

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7. There is also a prayer in the Original
Petition to direct the Subordinate Judges Court,
Vadakara to dispose of A.S.No.35 of 2010

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expeditiously. The respondents have no objection
in granting that prayer. Of course the appeal is
of the year 2010. The Lower Appellate Court shall
make every effort to give an early posting of the
appeal so that the appeal can be disposed of
without delay.

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O.P(C).No.461 OF 2011 6

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8. The order passed by the court below does not

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call for any interference and the Original Petition
is dismissed to that extent.

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The Original Petition is partly allowed as
mentioned above, in so far as it relates to the
prayer for early disposal of the appeal.

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K.T.SANKARAN,
JUDGE.

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cms

Koovummal Kunhipathu v. Mukkathkellandy Asya Hajjumma

Case brief

What is this about?

What did the court decide?

Koovummal Kunhipathu v. Mukkathkellandy Asya Hajjumma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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