Remanded

Moidu v. Abdu Haji

Kerala HC9 Apr 2013FAO/120/2013

Case brief

AI extract

What is this about?

Appeal against an order dismissing an injunction application under Order 39 Rules 1 and 2 CPC. The High Court set aside the lower order for failing to apply required legal principles like prima facie case and balance of convenience, remanding the matter for fresh orders and staying further construction.

What did the court decide?

Order passed in I.A.No.2658/12 set aside; matter remanded to Sub Court, Manjeri for fresh orders; interim stay on construction.

Moidu Vs Abdu Haji — Partition | Kerala HC (2013)

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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.M.JOSEPH

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935

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FAO.No. 120 of 2013 ()

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--------------------------I.A. NO.2658/2012 IN O.S. NO.195/2012 OF SUB COURT, MANJERI.

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APPELLANTS/RESPONDENTS 1, 2 AND 4 TO 6 IN I.A./PLAINTIFFS 1, 2 AND 4 TO 6:

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1. MOIDU, S/O. LATE MUHAMMED, AGED 65 YEARS, CHAKKIKULATHIL HOUSE, KARIYAVATTOM AMSOM, PACHEERI DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT.

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2. UMMER, S/O. MUHAMMED, AGED 54 YEARS, CHAKKIKULATHIL HOUSE, KARIYAVATTOM AMSOM, PACHEERI DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT.

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3. KADIYAKUTTY, D/O. MUHAMMED,

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AGED 56 YEARS, CHAKKIKULATHIL HOUSE, KARIYAVATTOM AMSOM, PACHEERI DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT.

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4. PATHUMMA, D/O. MUHAMMED, AGED 50 YEARS, CHAKKIKULATHIL HOUSE, KARIYAVATTOM AMSOM, PACHEERI DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT.

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5. MARIYA, W/O. MOOSA, AGED 60 YEARS, CHAKKIKULATHIL HOUSE, KARIYAVATTOM AMSOM, PACHEERI DESOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.RAMACHANDRAN, SRI.P.RAMACHANDRAN.

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RESPONDENTS/PETITIONERS AND 3RD PETITIONER IN I.A./ 15TH DEFENDANT AND 3RD PLAINTIFF:

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1. ABDU HAJI, S/O. LATE HYDROSE, CHAKKIKULATHIL HOUSE, PACHEERI P.O., KARIYAVATTOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT, PIN-679 325.

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FAO.No. 120 of 2013

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2. HYDRU, S/O. LATE MUHAMMED, CHAKKIKULATHIL HOUSE, KARIYAVATTOM AMSOM, PACHEERI DESOM, PERINTALMANNA TALUK, PIN-679 322.

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BY ADV. MR.K.LAKSHMI NARAYANAN.

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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K. M. JOSEPH & K. RAMAKRISHNAN, JJ.

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---------------------------------------------F. A. O. NO.120 OF 2013

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----------------------------------------------Dated this the 9th April, 2013

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JUDGMENT

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K.M. Joseph, J.

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The Appeal is filed against the order dated 14.3.2013 in IA.No.2658/12 in OS.No.195/12 on the file of the Sub Court, Manjeri. That was an application filed under Order 39 Rules 1 and 2 CPC to restrain the 15^th defendant from making any construction in item No.6 shown in the plaint B schedule. Originally, the application was dismissed. There was an appeal carried to this Court and this Court remanded the matter. After remand, the present impugned order has been passed on the basis of the undertaking given by the 15^th defendant that he will demolish the construction being made without raising any claim.

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FAO.120/13

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We heard the learned counsel for the appellants and also

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the learned counsel appearing for the respondents.

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Learned counsel for the appellants would complain that

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though this Court had remitted the matter back, so that the matter will engage the attention of the officer, he did not consider the matter in a proper manner. There is no reference to the principles, like prima facie case and balance of convenience. There is only reference to the concept of irreparable injury, in that, the learned Judge would state that if the 15^th defendant is prevented from making any construction and after prolonged trial tial, first appeal, second appeal and after any further litigation, if it is ultimately found that item No.6 is not available for partition, the 15^th defendant will be put to irreparable injury besides untold misery as the cost of building materials, labour charges, etc. will skyrocket

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FAO.120/13

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like anything by the lapse of years and even decades.

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On the one hand, learned counsel for the appellants would submit that admittedly item No.6 is a co-ownership property. On the other hand, according to the learned counsel for the 15^th defendant, it is the exclusive property of the 15^th defendant. Both sides refer to orders in support of their contentions.

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What we find conspicuously absent is any reference to or consideration in these matters as is required in law even at the interlocutory stage. We feel that the order cannot be sustained. Accordingly, the order passed in I.A.No.2658/12 is set aside. The Sub Judge, Manjeri will take up the said I.A., hear the parties and pass fresh orders. Till such time as a decision is taken, we direct that the 15^th defendant will not proceed with further construction in item No.6 in plaint B schedule property. We further make it clear

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FAO.120/13

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that the court below will decide the matter totally untrammeled by

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the interim order we have passed. The parties will appear before

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the court below on 21.5.2013 and orders will be passed in the I.A.

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Within one month from 21.5.2013.

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The Appeal is disposed of as above.

Sd/=

K. M. JOSEPH

JUDGE

Sd/=

K. RAMAKRISHNAN JUDGE

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kbk.

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//true copy//

Moidu v. Abdu Haji

Case brief

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What did the court decide?

Moidu v. Abdu Haji

Case brief

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