Dismissed

Priyesh B Kartha v. Sarojini Amma

Kerala HC21 Feb 2013OP(C)/215/2013

Case brief

AI extract

What is this about?

In a writ petition under Article 227 of the Constitution challenging a temporary mandatory injunction, the Court held that the order falls within Order XXXIX Rule 1 CPC and is appealable under Order XLIII Rule 1(r). The petition was dismissed as not maintainable, though merits were left open.

What did the court decide?

The writ petition was closed as not maintainable; the petitioner is directed to file an appeal before the Court concerned if desired.

Priyesh B Kartha Vs Sarojini Amma — Property and Title | 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 HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934

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OP(C).No. 215 of 2013 (O)

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O.S. 234/2012 & 245/2012 OF MUNSIFF'S COURT, PERUMBAVOOR

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PETITIONER :

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PRIYESH B. KARTHA, AGED 34 YEARS S/O. DECEASED BALAKRISHNAN KARTHA THAMARASSERY HOUSE, VENGOLA KARA ARACKAPADY VILLAGE IN KUNNATHUNADU TALUK WEST VENGOLA P.O., VALAYANCHIRANGARA, PIN- 683 556.

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BY ADVS.SRI.N.NEELAKANDHAN NAMBOODIRI SRI.P.S.NARAYANA RAJA

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RESPONDENT(S) :

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1. SAROJINI AMMA

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AGED 70 YEARS, W/O. SANKAR, THUMMARUKUDIYIL HOUSE VENGOLA KARA, ARACKAPPADY VILLAGE, WEST VENGOLA P.O. VALAYANCHIRANGARA, PIN - 683556, ERNAKULAM DISTRICT.

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2. ANILKUMAR

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AGED 44 YEARS, BUSINESS, S/O. SANKAR THUMMARUKUDIYIL HOUSE, VENGOLA KARA ARACKAPADY VILLAGE, WEST VENGOLA P.O. VALAYANCHIRANGARA, PIN - 683556, ERNAKULAM DISTRICT.

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3. BINDU

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AGED 40 YEARS, COMPANY EMPLOYEE, W/O. MANI PANKOD KARA, PATTIMATTOM VILLAGE NOW RESIDING AT KSEB QUARTERS, ANKAMALY ANKAMALY VILLAGE, ANKAMALY P.O., PIN-683573, ERNAKULAM DISTRICT.

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4. RADHAKRISHNAN

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AGED ABOUT 50 YEARS, AGRICULTURE, S/O. BALAKRISHNAN THUMMARUKUDIYIL HOUSE, VENGOLA KARA ARACKAPPADY VILLAGE, NOW RESIDING AT VISWAMANDIRAM KALADY KARA, KALADY VILLAGE, KALADY P.O., PIN- 683 574, ERNAKULAM DISTRICT.

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...2/-

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OP(C).No. 215 of 2013 (O) -2-

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5. BHAGYALAKSHMI AGED ABOUT 45 YEARS, HOUSE WIFE, W/O. RADHAKRISHNAN VISWAMANDIARAM, KALADY KARA, KALADY VILLAGE KALADY P.O., PIN- 683 574, ERNAKULAM DISTRICT.

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R1 & R2 BY ADVS. SRI.G.RAJAGOPAL SMT.S.LEELALAKSHMI SMT.N.RENJINEE DEVI R3 BY ADV. SRI.P.P.BIJU

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2013, THE COURT ON 21-02-2013 DELIVERED THE FOLLOWING:

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...3/-

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OP(C).No. 215 of 2013 (O)

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXHIBIT-P1-	TRUE COPY OF THE SALE DEED NO. 4577/2012 DATED 08/08/2012 OF THE PERUMBAVOOR S.R.O.
EXHIBIT-P2-	TRUE COPY OF AFFIDAVIT AND PETITION DATED 7-8-2012 AS I.A. NO. 1562/2012 IN OS.NO. 234/2012 FILED BY THE PLAINTIFF FOR INJUNCTION.
EXHIBIT-P3	COPY OF THE COMMISSION REPORT AND SKETCH DATED 10-9-2012 FILED IN I.A NO. 1560/2012 IN O.S. NO. 234/2012 BY ADVOCATE COMMISSIONER, C.K. SINDHU.
EXHIBIT-P4	COPY OF AFFIDAVIT AND PETITION DATED 13-8-2012 AS I.A. NO. 1623/2012 IN O.S. NO. 234/2012 FILED BY THE PLAINTIFF FOR IMPLEADING PRIYESH B. KARTHA AS ADDITIONAL 3RD DEFENDANT.
EXHIBIT-P5	COPY OF THE COUNTER AFFIDAVIT DATED 11-12-2012 FILED IN I.A. NO. 1562/2012 IN O.S. NO. 234/2012 BY THE ADDITIONAL 3RD RESPONDENT.
EXHIBIT-P6	COPY OF THE OBJECTION DATED 11-12-2012 FILED IN I.A. NO. 1560/2012 IN O.S. NO. 234/2012 BY THE ADDITIONAL 3RD DEFENDANT.
EXHIBIT-P7	COPY OF THE AFFIDAVIT AND PETITION DATED 11-12-2012 AS I.A. NO. 2500/2012 IN O.S. NO. 234/2012 FILED BY THE ADDITIONAL 3RD DEFENDANT TO SET ASIDE THE COMMISSION REPORT FILED BY ADVOCATE COMMISSIONER, C.K. SINDHU.
EXHIBIT-P8	COPY OF THE AFFIDAVIT AND PETITION DATED 11-12-2012 AS I.A. NO. 2501/2012 IN O.S. NO. 234/2012 FILED BY THE ADDITIONAL 3RD DEFENDANT FOR LOCAL INSPECTION BY THE COURT ITSELF.
EXHIBIT-P9	COPY OF AFFIDAVIT AND PETITION DATED 27-10-2012 AS I.A. NO. 2154/2012 IN O.S. NO. 234/2012 FILED BY THE PLAINTIFF FOR RESTORATION OF 'C' SCHEDULE PATHWAY IN ITS EARLIER POSITION.
EXHIBIT-P10	COPY OF THE COUNTER AFFIDAVIT DATED 11-12-2012 FILED IN I.A. NO. 2154/2012 IN O.S. NO. 234/2012 BY THE ADDITIONAL 3RD DEFENDANT.
EXHIBIT-P11	COPY OF THE COMMISSION REPORT FILED IN I.A.NO. 1877/2012 IN O.S. NO. 234/2012 BY THE ADVOCATE COMMISSIONER, C.K. SINDHU.
EXHIBIT-P12	COPY OF THE OBJECTION DATED 11-12-2012 FILED IN I.A. NO. 1877/2012 IN O.S. NO. 234/2012 BY THE ADDITIONAL 3RD DEFENDANT.

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(Contd...)

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OP(C).No. 215 of 2013 (O) -2-

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EXHIBIT-P13 COPY OF THE AFFIDAVIT AND PETITION DATED 21-8-2012 AS I.A. NO. 1655/2012 IN O.S.NO. 245/2012 FILED BY THE PLAINTIFF FOR INJUNCTION.

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EXHIBIT-P14 COPY OF COUNTER AFFIDAVIT DATED 26-11-2012 FILED IN I.A NO. 1655/2012 IN O.S.NO. 245/2012 BY THE DEFENDANTS 1 TO 4.

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EXHIBIT-P15 COPY OF THE COMMISSION REPORT AND SKETCH DATED 14-9-2012 FILED IN I.A NO. 1654/2012 IN O.S. NO. 245/2012 BY THE ADVOCATE COMMISSIONER, P.I. PAREEEKKUTTY.

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EXHIBIT-P16 COPY OF THE COMMON ORDER OF THE MUNSIFF'S COURT, PERUMBAVOOR DATED 19-12-2012 IN I.A NOS. 1562/2012, 2154/2012 IN O.S. NO. 234/2012 AND I.A NO. 1655/2012 IN O.S NO. 245/2012.

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EXHIBIT-P17 COPY OF AFFIDAVIT AND PETITION DATED 31-12-2012 AS I.A NO. 2617/2012 IN O.S. NO. 234/2012 FILED BY THE PLAINTIFF FOR APPOINTING AN ADVOCATE COMMISSION.

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EXHIBIT-P18 COPY OF THE PARTITION DEED NO. 3688/1972 DATED 28-12-1972 OF THE PERUMBAVOOR S.R.O.

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EXHIBIT-P19 COPY OF THE APPLICATION SUBMITTED BEFORE THE 'GRAMA SABHA' IN WARD NO. 21 OF VENGOLA GRAMA PANCHAYATH.

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EXHIBIT-P20 COPY OF THE LETTER DATED 22-10-2012 SENT BY THE SECRETARY, VENGOLA GRAMA PANCHAYATH TO PRIYESH B. KARTHA.

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EXHIBIT-P21 COPY OF THE MINUTES DATED 22-7-2012 OF THE GRAMA SABHA YOGAM OF WARD NO. 21 OF VENGOLA GRAMA PANCHAYATH.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.S. TO JUDGE

'C.R'

A.V.RAMAKRISHNA PILLAI, J.

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= = = = = = = = = = = = = = = = = = = O.P(C) No.215 of 2013

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= = = = = = = = = = = = = = = = = = = Dated this the 21^st day of February, 2013

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JUDGMENT

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The additional third defendant in the original suit is the petitioner.

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In the suit filed by the respondents for declaration of easement of

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way by prescription over plaint 'C' schedule property and for permanent prohibitory injunction, an application for temporary injunction was filed on which, an ex parte ad-interim order of injunction was passed.

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Later, respondents 1 to 3 filed another petition in that suit as I.A.No.2154 of 2012 against the petitioner and respondents 4 and 5 for restoration of 'C' schedule property to its earlier position, on the allegation that the pathway was obstructed in contravention of the ad-interim order of injunction. The provision quoted in the said application was Section 151 of the Code of Civil Procedure.

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The petitioner also filed a suit for permanent prohibitory injunction against respondents 1 to 3 wherein, he sought for a temporary injunction under Order XXXIX Rule 1 CPC restraining the respondents from cutting open a pathway through his property.

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OP(C)215/13

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-:2:-

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The learned Munsiff, who heard all the applications, by a common order allowed the applications filed by the respondents and dismissed the application filed by the petitioner.

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The petitioner states that he has challenged the orders passed on the applications for temporary prohibitory injunction before the Sub Court, Perumbavoor, and as the order passed on I.A.No.2154 of 2012 is under Section 151 of CPC, no appeal lies from that order and he is challenging that order before this Court under Article 227 of the Constitution of India.

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When the matter came up for consideration before this Court, the contesting respondents raised a preliminary objection that the impugned order falls within the ambit of Order XXXIX Rule 1 and accordingly, the same is appealable under Order XLIII Rule 1(r) CPC and hence, no application under Article 227 of the Constitution would lie. Since such a preliminary objection has been raised, this Court has to consider the maintainability of this petition.

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Arguments have been heard.

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The learned counsel for the petitioner, inviting my attention to a series of decisions, would argue that the order of temporary mandatory injunction will not come within the purview of Order XXXIX Rule 1 CPC, as it is evident from the fact that the said order was passed on an application filed by

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OP(C)215/13

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-:3:-

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the respondents under Section 151 of CPC. Hence, it was argued that such an order is not appealable under Order XLIII Rule 1(r) CPC and thus, he has approached this Court.

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The learned counsel for the respondents, per contra, inviting my attention to the provisions of Order XXXIX Rule 1 CPC, would argue that the mere quoting of Section 151 CPC in the petition filed by them will not take away the order from the ambit of Order XXXIX Rule 1.

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For appreciating the arguments, it is profitable to have a glance at

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the provision of Order XXXIX Rule 1 CPC, which reads as under:-

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“ 1. Cases in which temporary injunction may be granted .-

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Where in any suit it is proved by affidavit or otherwise-

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(a) that any property in dispute in a suit is in danger or being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

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(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors.

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(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

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the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal of disposition of the property or [disposition of the

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-:4:-

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OP(C)215/13

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plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.”

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(emphasis supplied)

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An order of injunction, whether interim or final, is an order falling within Rules 1 or 2 of Order XXXIX CPC and also appealable under Order XLIII Rule 1(r). The appealability is not taken away by the circumstance that Rule 4 of Order XXXIX CPC enables an order of injunction to be discharged, varied or set aside on application made for the purpose. The words “by any party to the suit” appearing in Clause (a) of Order XXXIX Rule 1 indicates that orders under the said clause can be passed on an application filed by the plaintiff or the defendant where the suit property faces a danger of being wasted, damaged, alienated or wrongly sold in execution of a decree.

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However, the other two clauses i.e. Clauses (b) and (c) of order XXXIX Rule 1 CPC which refer to orders of injunction passed against defendants only are wide enough empowering the Court to pass orders in the form of injunction where the defendant is causing injury to the plaintiff, in relation to any property in dispute in the suit. That means, Clauses (b) and (c) of Order XXXIX Rule 1 CPC contemplates orders of mandatory injunction also. It is the settled law.

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-:5:-

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OP(C)215/13

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It is true that the respondents had quoted only Section 151 CPC in their application for temporary mandatory injunction. If an order has been passed under Order XXXIX Rule 1 CPC undoubtedly, the remedy open to the petitioner is to file an appeal, since an appeal is provided under Order XXXIX Rule 1 CPC against such an order.

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The mere fact that the respondents have quoted a wrong provision in their application on which the Court has passed an order, will not take away the same from the ambit of Order XXXIX Rule 1 CPC as the said order could have been passed under the said order. There need not be any doubt about that. The object sought to be achieved by Order XXXIX Rule 1 is to protect the subject matter of the suit and to safeguard the rights of the parties during the pendency of the litigation. The application on which the impugned order was passed was filed seeking the said protection. That was allowed by the Court permitting the respondents to restore the pathway said to have been obstructed in contravention of the order of temporary prohibitory injunction. In effect, it was an order passed under Order XXXIX Rule 1 CPC. Therefore, this Court upholds the objection raised by the respondents and accepts the view that the impugned order falls within the ambit of Order XXXIX Rule 1 CPC and the same is appealable as per Order XLIII Rule 1(r) CPC.

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-:6:-

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OP(C)215/13

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In the result, this petition is closed as not maintainable.

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However, it is made clear that it is open to the petitioner to file an appeal against the impugned order before the Court concerned. If such an appeal is filed, the Appellate Court shall take note of the fact of pendency of this petition before this Court while considering the application for condonation of delay under the provisions of the Limitation Act. It is also made clear that this Court has not touched upon the merits of the grounds, as they are left open to be decided by the Appellate Court.

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sd/- A.V.RAMAKRISHNA PILLAI

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JUDGE

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krj

Priyesh B Kartha v. Sarojini Amma

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Priyesh B Kartha v. Sarojini Amma

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