Remanded

M/S.Suro Fire Securities (Pvt) Ltd. v. Joy K.J

Kerala HC20 Jul 2016OP(C)/1711/2016

Case brief

AI extract

What is this about?

The High Court set aside an order that disposed of two connected appeals in separate proceedings. It remanded the matter for joint disposal by the trial court to consider all evidence together and directed maintenance of status quo on the property.

What did the court decide?

The impugned judgment in C.M.A. No. 43/2016 is set aside. Both C.M.A. Nos. 42/2016 and 43/2016 are to be disposed of together by the court below after considering all materials.

M/S.Suro Fire Securities (Pvt) Ltd. Vs Joy K.J — Contract and Commercial Disputes | Kerala HC (2016)

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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.RAMAKRISHNAN

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WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938

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OP(C).No. 1711 of 2016 (O)

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AGAINST THE JUDGMENT IN CMA 43/2016 OF I ADDL. DISTRICT COURT, ERNAKULAM DATED 25-06-2016

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PETITIONERS:

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1. M/S.SURE FIRE SECURITIES (PVT) LTD. 1/25, TEMPLE ROAD, WEST HILL P.O, CALICUT 673 003, REPRESENTED BY ITS DIRECTOR, ALEX K. BABU, S/O.K.C.BABU, AGED 35 YEARS, KALLUVILA GALILEE HOUSE, CHEMANCHERY AMSOM, VENGALAM DESOM, KOILANDY TALUK, CALICUT DISTRICT, PIN 673 305.

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2. ALEX K.BABU S/O.K.C.BABU, AGED 36 YEARS, KALLUVILA GALILEE HOUSE, CHEMANCHERY AMSOM, VENGALAM DESOM, KOILANDY TALUK, CALICUT DISTRICT, PIN 673 305.

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BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.V.A.JOHNSON SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON

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RESPONDENT:

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MR.JOY K.J S/O. JOSEPH, AGED 48 YEARS, BUSINESS, 55/2900, KANJOOKKARAN HOUSE, ELAMKULAM VILLAGE, KANAYANNUR TALUK, KADAVANTHRA P.O, PIN 682 020, ERNAKULAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.ROBERT FINTAN, AGED 63 YEARS, S/O.REGINAID, HOUSE NO. 20/111, MANGAYIL HIGH SCHOOL ROAD, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, MANGAYIL P.O, PIN 682 304.

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BY ADV. SRI.P.SATHISAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1711 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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------------------------- EXHIBIT P1.	--------------- COPY OF THE PLAINT IN OS 1493/2015 OF MUNSIFF'S COURT, ERNAKULAM FILED BY THE RESPONDENT.
EXHIBIT P2.	COPY OF THE SALE DEED NO. 3107/2013 OF MARADU SRO.
EXHIBIT P3.	COPY OF AFFIDAVIT AND PETITION AS IA 10694/2015 IN OS 1493 OF 2015 FILED BEFORE THE MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P4.	COPY OF COUNTER TO EXT.P3 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P5.	COPY OF THE PLAINT AS OS 1627 OF 2015 OF MUNSIFF'S COURT, ERNAKULAM FILED BY THE PETITIONERS.
EXHIBIT P6.	COPY OF THE IA 11480/2015 IN OS 1627 OF 2015 OF MUNSIFF'S COURT, ERNAKULAM.
EXHIBIT P7.	COPY OF SALE DEED NO.1142/2013 OF MARADU SRO.
EXHIBIT P8.	COPY OF COMMISSION REPORT IN OS 1627 OF 2015 FILED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF'S COURT ERNAKULAM.
EXHIBIT P9.	COPY OF COUNTER AFFIDAVIT TO EXHIBIT P6 FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, ERNAKULAM.

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EXHIBIT P10. COPY OF SALE DEED NO.3749 OF 1995 OF MARADU SRO.

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EXHIBIT P11. COPY OF SALE DEED NO.1346 OF 1998 OF MARADU SRO. EXHIBIT P12. COPY OF SALE DEED NO.1146 OF 2013 OF MARADU SRO.

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EXHIBIT P13. COPY OF COMMON ORDER IN I.A. NO. 10694 IN OS 1493/2015 AND I.A. NO.11480/2015 IN OS 1627 OF 2015 DATED 12.4.16 OF IIIRD ADDL.MUNSIFF AND RENT CONTROL COURT ERNAKULAM.

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EXHIBIT P14. COPY OF JUDGMENT IN CMA 43 OF 2016 DATED 25.6.16 OF IST ADDL. DISTRICT COURT, ERNAKULAM.

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RESPONDENT(S)' EXHIBITS:- NIL

/TRUE COPY/

P.A. TO JUDGE

DCS

K. RAMAKRISHNAN, J.

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

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O.P.(C). No. 1711 OF 2016

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Dated this the 20^th day of July, 2016

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JUDGMENT

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This original petition has been filed challenging Ext.

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P14 judgment in C.M.A. No. 43/2016 on the file of the I^st Additional District Court, Ernakulam under Article 227 of the Constitution of India.

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It is alleged in the petition that O.S. No. 1493/2015 on the file of the Munsiff Court, Ernakulam evidenced by Ext.P1 was filed by the respondent and they also filed Ext.P3 application as I.A. No. 10694/2015 for interim injunction. The petitioners herein filed Ext.P5 suit as O.S. No. 1627/2015 before the Munsiff Court, Ernakulam and also filed Ext. P6 application as I.A. No. 11480/2015 for interim injunction. Ext. P8 commission report was obtained in O.S. No. 1627/2015 filed by the petitioners. Joint trial was ordered and both these applications were jointly heard and disposed of by the III^rd Additional Munsiff and Rent Control Court,

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O.P.(C). No. 1711 OF 2016

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Ernakulam by Ext. P13 common order. As per the common order, the injunction application filed by the petitioners herein was allowed and injunction application filed by the respondent was dismissed. Aggrieved by the same, the respondent herein filed C.M.A. No. 43/2013 against the order in I.A. No. 10694/2015 in O.S. No. 1493/2015 and also filed C.M.A. No. 42/2016 against order in I.A. No. 11480/2015 in O.S. No. 1627/2015 and after admission, both these appeals were made over to the I^st Additional District Court, Ernakulam for disposal. But the I^st Additional District Court, Ernakulam without considering the connected appeal only on the basis of the alleged submission made by the counsel disposed of C.M.A. No. 43/2013 alone by the impugned order Ext. P14, that is being challenged in this petition.

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Heard the Senior Counsel Sri. S. Sreekumar

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appearing for the petitioners and Sri. P. Sathisan counsel appearing for the respondent.

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O.P.(C). No. 1711 OF 2016

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The counsel for the petitioners submitted that

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since both the injunction applications were disposed of by a common order and when two appeals have been filed by the affected parties, it ought to have been disposed of by the learned Additional District Judge by a common order as it is likely to prejudicially affect the right of the party in the other appeal.

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On the other hand, the counsel for the respondent submitted that it was based on the consent of the counsel that it was disposed of by the learned Additional District Judge.

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Admittedly, the case and cross suits have been filed by the parties in respect of the same property. The dispute is in respect of half cent of property between them. The identity of the property is also in dispute. It is also seen that in both the cases, two separate commissioners inspected the property and submitted independent commission reports and it is after considering the documents and also both the

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O.P.(C). No. 1711 OF 2016

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commissioners report that the trial court had disposed of the injunction applications filed by both the parties by the common order granting injunction in respect of the property claimed by the petitioners herein and rejecting the application filed by the respondent herein. It is also an admitted fact that two appeals have been filed by the respondent against the common order as C.M.A. Nos. 43/2016 and 42/2016 and both these appeals were pending before the same court. Merely because the counsel were prepared for argument of one of the appeals alone is not a ground for the court to proceed with the appeal if a substantial question has to be decided on the basis of the documents and materials available in both the cases which has been considered by the court below and passed the common order. It is now submitted by the counsel that in both the appeals counsel are appearing.

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So under such circumstances, this Court feels that it is necessary in the interest of justice to set aside the order in C.M.A. No. 43/2016 and remit back the same

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O.P.(C). No. 1711 OF 2016

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to the I^st Additional District Court, Ernakulam for disposal of the appeal along with C.M.A. No. 42/2016 as well untrammeled by the observations made by the learned I^st Additional District Judge in the impugned order and after considering the evidence, documents and other materials produced in both the cases. However, considering the urgency mentioned, the parties are directed to appear before the court below as well on 01.08.2016 to avoid delay in disposal of the cases pending before the court below. So the original petition is allowed and disposed of as follows:-

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The impugned Ext. P14 judgment in C.M.A. No. 43/2016 on the file of the I^st Additional District Court, Ernakulam is set aside. The same is remitted to the Court below for fresh disposal in accordance with law. The learned I^st Additional District Judge is directed to hear both the appeals namely C.M.A. Nos. 42/2016 and 43/2016 together and dispose of the same afresh in accordance with law, after hearing both sides and

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O.P.(C). No. 1711 OF 2016

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considering the materials available on record untrammeled by the observations and findings arrived at in the impugned judgment in C.M.A. No. 43/2016. The court below is directed to expedite disposal of the appeals, as expeditiously as possible, at any rate, within one month from the date of judgment of this Court or the date of appearance fixed by this Court whichever is later.

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Parties are directed to maintain status quo of the property till the disposal of C.M.A. Nos. 42/2016 and 43/2016.

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Registry is directed to communicate the judgment to the court below immediately by fax.

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K. RAMAKRISHNAN, JUDGE

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DCS

M/S.Suro Fire Securities (Pvt) Ltd. v. Joy K.J

Case brief

What is this about?

What did the court decide?

M/S.Suro Fire Securities (Pvt) Ltd. v. Joy K.J

Case brief

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