Allowed

Ramesh v. Vidyanandan

Kerala HC5 Jul 2012OP (FC)/502/2012

Case brief

AI extract

What is this about?

Kerala High Court allowed an original petition under Article 227 of the Constitution setting aside the Family Court's dismissal of an injunction petition. The court held the Family Court erred in not granting a temporary injunction to stop respondents from trespassing on the petitioner's property.

What did the court decide?

Order in I.A.No.3493 of 2011 in O.P.No.1339 of 2011 dated 16.12.2011 set aside and that I.A. allowed; temporary injunction granted restraining respondents from trespassing into the property.

Ramesh Vs Vidyanandan — Property and Title | Kerala HC (2012)

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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

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934

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OP (FC).No. 502 of 2012 (R)

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IA.NO.3493/2011 IN OP.1339/2011 of FAMILY COURT, ALAPPUZHA

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PETITIONER(S)/PETITIONER IN OP NO.1339/2011:

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RAMESH, AGED 39 YEARS S/O. VENKITESWARA PRABHU, VALIYAKULANGARA PONNADU P.O., MANNANCHERRY, ALAPPUZHA.

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BY ADV. SMT.VILASINI NAYAK

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RESPONDENT(S)/RESPONDENTS IA.NO.3493/2011 IN OP.1339/2011 :

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VIDYANANDAN, AGED 55 YEARS

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CHIRAYIL NORTH, ARYAD P.O., MANNANCHERRY

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ALAPPUZHA, PRESENTLY RESIDING AT VALIYAKULANGARA

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PONNADU P.O., MANNANCHERRY, ALAPPUZHA-688 538.

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BABY VIDYANANDAN, AGED 53 YEARS

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CHIRAYIL NORTH, ARYAD P.O., MANNANCHERRY

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ALAPPUZHA, PRESENTLY RESIDING AT VALIYAKULANGARA

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PONNADU P.O., MANNANCHERRY, ALAPPUZHA-688 538.

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BY ADV. SRI.B.PRAMOD

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12.06.2012,

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THE COURT ON 05.07.2012 DELIVERED THE FOLLOWING:

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OP (FC).No. 502 of 2012 (R)

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1 : TRUE PHOTOSTAT COPY OF THE ORDER DTD.16.12.2011 IN IA NO.3493/ 2011 IN OP NO.1339/2011.

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EXT.P2 : TRUE PHOTOSTAT COPY OF OP NO.1339/2011 ON THE FILES OF FAMILY COURT, ALAPPUZHA.

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EXT.P3 : TRUE PHOTOSTAT COPY OF IA NO.3493/2011 IN OP NO.1339/2011 ON THE FILES OF FAMILY COURT, ALAPPUZHA.

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EXT.P4 : TRUE PHOTOSTAT COPY OF OBJECTION IN OP NO.1339/2011 ON THE FILES OF FAMILY COURT, ALAPPUZHA.

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EXT.P5(a): ORIGINAL PHOTOGRAPH OF PETITIONER'S HOUSE IN ORIGINAL.

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EXT.P5(b): ORIGINAL PHOTOGRAPH OF PETITIONER'S HOUSE TOGETHER WITH HIS PARENTS' HOUSE.

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EXT.P6 : THE PHOTOSTAT TRUE COPY OF THE PROTECTION ORDER DTD.13.7.2011 ISSUED U/S. 18 OF D.V.ACT IN MC NO.58/2011 BY IST CLASS MAGISTRATE COURT, ALLEPPEY.

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RESPONDENTS' EXHIBITS : NIL.

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(TRUE COPY)

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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O.P. (FC) No.502 of 2012

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Dated 5^th July, 2012.

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J U D G M E N T

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Joseph Francis, J.

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This Original Petition, under Article 227 of the Constitution of India, is filed by the petitioner in I.A.No.3493 of 2011 in O.P.No.1339 of 2011 on the file of the Family Court, Alappuzha.

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The respondents herein are the respondents 1 and 2 in that I.A., which was filed by the petitioner in that Original Petition, under Order 39 Rule 1 and Section 151 of the Code of Civil Procedure for a temporary injunction restraining the respondents or anybody under them or any of their associates from trespassing upon the plaint schedule property or in any way interfering with the petitioner's peaceful possession and enjoyment of the plaint schedule property or committing any act of waste or mischief therein.

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O.P.No.1339 of 2011 is a suit for prohibitory injunction in the above lines, filed by the petitioner against respondents 1 and 2. The respondents in that I.A. filed counter opposing the petition for temporary injunction. The Family

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O.P.(FC) 502 of 2012

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Court, on considering the contentions of parties, dismissed that petition on the ground that the petitioner failed to make out a prima facie case. Against that order, the petitioner filed this O.P.(FC).

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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Learned counsel for the petitioner submitted that

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the court below ought to have found that in spite of the fact that the petitioner being the absolute owner of the plaint schedule property and the house situated therein, he is ousted from his house and is being prevented from entering into the house and the property by the respondents, who have no manner of right to do so. It is also submitted that the construction of the house in the plaint schedule property is not completed and the respondents are not permitting the construction workers to enter into the house to do the remaining work. Learned counsel for the petitioner further submitted that the Family Court ought to have granted a temporary injunction, considering all these aspects. The

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O.P.(FC) 502 of 2012

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learned counsel for the respondents supported the order under challenge.

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There is no dispute that the plaint schedule property, having an extent of 16 cents belongs to the petitioner as per settlement deed dated 18.10.2006 and the incomplete house situated therein also belongs to the petitioner. There is also no dispute that the respondents are the father-in-law and the mother-in-law of the petitioner. The marriage between the petitioner and the daughter of the respondents took place on 12.4.2009. The petitioner belongs to Gowda Saraswatha community and the daughter of the respondents belongs to Hindu (Ezhava) community. The petitioner is now working as a Class IV employee in District Educational Office, Alappuzha. The petitioner has filed a petition for divorce against the wife before the Family Court, as O.P.No.1074/11, which is pending. The petitioner's wife is residing in the incomplete house situated in the plaint schedule property along with the minor child. The petitioner's wife obtained a prohibition order against the petitioner herein, as per the order in M.C.No.58/11 on the

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O.P.(FC) 502 of 2012

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file of the Judicial First Class Magistrate-I, Alappuzha, under Section 12 of the Protection of Women from Domestic Violence Act, as per which the petitioner herein was prohibited from committing any physical, verbal and emotional abuse against the wife, till the disposal of the M.C. The petitioner herein is not seeking any injunction against his wife and therefore, the wife is not made a party to this proceedings. In the affidavit filed by the petitioner in I.A.No.3493 of 2011 in O.P.No.1339 of 2011, it is alleged that on 20.9.2011, when the petitioner reached his house in the plaint schedule property from his office, the respondents were about to leave the house and when they saw the petitioner they showered filthy words against him and they openly declared that they would not allow the petitioner to reside peacefully in the house constructed by him and the respondents did not allow the workers to enter the house. The order issued by the Judicial First Class Magistrate-I, Alappuzha in M.C.No.58/11 does not give the respondents herein any right to reside in the house in the plaint schedule property. Since the petitioner is having title and possession over the plaint

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O.P.(FC) 502 of 2012

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schedule property and the house situated therein, the petitioner has made out a prima facie case in his favour. The balance of convenience is also in favour of the petitioner in as much as the petitioner cannot be left at the mercy of the respondents. As the respondents are out of possession and the petitioner is in possession of the plaint schedule property and the incomplete house, comparatively greater hardship will be caused to the petitioner if injunction is withheld and the dispossession of the petitioner will result in irreparable injury to him and therefore, temporary injunction has to be issued to protect the possession of the petitioner over the plaint schedule property and the house.

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It is true that the order refusing to grant temporary injunction is a discretionary matter. Ordinarily, a court of appeal or superior court will not interfere with the exercise of discretion by the trial court and substitute its own discretion. Since the Family Court failed to exercise the discretionary power properly, considering the facts and circumstances of the case, we are of the view that in the

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O.P.(FC) 502 of 2012

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interests of justice, the order of the Family Court has to be set aside and the temporary injunction petition has to be allowed.

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Accordingly, this Original Petition (Family Court)

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is allowed and the order in I.A.No.3493 of 2011 in O.P.No.1339 of 2011 on the file of the Family Court, Alappuzha dated 16.12.2011 is set aside and that I.A. is allowed and the respondents and their men are restrained by a temporary injunction from trespassing into the plaint schedule property and in any way interfering with the petitioner's peaceful possession and enjoyment of the plaint schedule property and from committing any act of waste and mischief therein till the disposal of O.P.No.1339 of 2011. There is no order as to costs.

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Sd/-

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K.T.SANKARAN, JUDGE.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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(true copy)

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tgs

Ramesh v. Vidyanandan

Case brief

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Ramesh v. Vidyanandan

Case brief

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