Allowed

Aji Philip v. Dr.Jihanudeen

Kerala HC7 Jun 2018OP(C)/1242/2018

Case brief

AI extract

What is this about?

The High Court allowed a petition challenging an order granting an interim mandatory injunction. The court held that granting such relief in an appeal against the dismissal of a similar application was improper without material basis and set aside the order, remitting the matter for expeditious disposal.

What did the court decide?

The impugned order allowing the interim mandatory injunction was set aside; the appeal remanded for disposal within one month.

Aji Philip Vs Dr.Jihanudeen — Property and Title | Kerala HC (2018)

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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 SATHISH NINAN

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THURSDAY, THE 7TH DAY OF JUNE 2018 / 17TH JYAISHTA, 1940

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OP(C).No. 1242 of 2018

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CMP. NO.19/2018 IN CMA AS CMP. NO.18/2018 OF ADDL. DISTRICT COURT-I, ALAPPUZHA REVERSING THE ORDER IN IA.NO.762/2018 IN OS.NO.109/2018 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA.

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PETITIONER/RESPONDENT/PLAINTIFF

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AJI PHILIP, AGED 42 YEARS, S/O. K.P. JOHN, KAITHAMUTTATH HOUSE, STADIUM WARD, ALAPPUZHA.

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BY ADV.SRI.A.SHAFEEK (KAYAMKULAM).

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RESPONDENTS/DEFENDANTS :

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1. DR.JIHANUDEEN,

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AGED 51 YEARS, S/O. IBRAHIMKUTTY HAJI, KAITHAMUTTATH BUNGALOW, STADIUM WARD, ALAPPUZHA-688 001.

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2. LAILA BEEVI,

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AGED 49 YEARS, W/O. DR.JIHANUDEEN, KAITHAMUTTATH BUNGALOW, STADIUM WARD, ALAPPUZHA-688 001.

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BY ADV. SRI.K.V.SADANANDA PRABHU.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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11/06/2018.

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OP(C).No. 1242 of 2018 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE PLAINT IN OS NO.109/2018 ON THE FILE OF THE PRINCIPAL MUNSIFF, ALAPPUZHA.
EXHIBIT P2	TRUE COPY OF THE IA NO.754/2018 IN OS NO.109/2018 ON THE FILE OF THE PRINCIPAL MUNSIFF, ALAPPUZHA.
EXHIBIT P3	TRUE COPY OF THE COMMON ORDER DATED 31.03.2018 OF THE PRINCIPAL MUNSIFF'S COURT.
EXHIBIT P4	TRUE COPY OF THE CMA AS CMP NO.18/2018.
EXHIBIT P5	TRUE COPY OF THE IA AS CMP N0.19/2018.
EXHIBIT P6	CERTIFIED COPY OF THE ORDER IN CMP NO.19/2018 IN CMP NO.18/2018 OF THE (VACATION COURT) OF THE DISTRICT COURT, ALAPPUZHA.
EXHIBIT P7	COPY OF THE SKETCH SHOWING THE LIE OF THE PROPERTY IN DISPUTE PREPARED BY THE PETITIONER.

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RESPONDENT'S EXHIBITS: NIL.

//TRUE COPY//

P.S. TO JUDGE

rs. 11/06/2018.

Sathish Ninan, J.

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==========================

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O.P(C) No.1242 of 2018

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=============================

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Dated this the 7^th day of June, 2018

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JUDGMENT

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The dismissal of an application seeking interim mandatory injunction was challenged by the respondents/defendants in C.M.A. In the appeal an interlocutory application was moved seeking an interim mandatory injunction. As per the impugned order the same has been allowed. The plaintiff challenges the said order in this original petition.

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The suit is one for a permanent prohibitory injunction to restrain the defendant from removing the gate on the eastern side of the plaint schedule property. The plaintiff sought for an interim order of injunction

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O.P(C) No.1242 of 2018

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-: 2 :-

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of similar nature by filing I.A No.654 of 2018. The defendants filed an application as I.A No.762 of 2018

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seeking an order of interim mandatory injunction to remove the gate in question and to restore the status quo ante on the allegation that the gate was planted after obtaining ex parte order of injunction in the suit. The relevant averment in paragraph 4 of the affidavit filed in support of the I.A reads as follows:

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“the plaintiff placed a gate, more particularly described in the schedule hereunder, obstructing our pathway after obtaining the ex parte order of interim injunction, describing the plaint schedule property wrongly.”

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The learned Munsiff as per order dated 31.03.2013 dismissed both the applications. The application for interim mandatory injunction was dismissed stating that, from the evidence on record it could not be ascertained whether the gate was erected after obtaining the order of

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O.P(C) No.1242 of 2018

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-: 3 :-

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injunction or not. Challenging the said order, appeal was preferred before the vacation court. On an interlocutory application filed in the said appeal, the court below directed the plaintiff to keep open the disputed gate to enable the appellants to have ingress and egress to their property till the disposal of the C.M.Appeal.

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I do not think that the grant of an order in the nature of an interim mandatory injunction in an appeal which itself is filed against dismissal of an application for interim mandatory injunction was proper. The impugned order does not refer to any material based on which the order of interim mandatory nature was passed. I am of the opinion that the same is not liable to be sustained.

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In the result, the original petition is allowed. The impugned order dated 21.04.2018, is set aside. The court dealing with the Civil Miscellaneous Appeal filed on 16.04.2018 as C.M.P No.18 of 2018 before the Vacation Court, Alappuzha filed against the order on I.A No.762 of

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O.P(C) No.1242 of 2018

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-: 4 :-

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2018 in O.S No.109 of 2018 of the Principal Munsiff's Court, Alappuzha shall hear and dispose of the appeal as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of this judgment. I make it clear that I have not expressed any opinion on the merits of the rival claims.

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Sd/- Sathish Ninan, Judge.

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vdv

Aji Philip v. Dr.Jihanudeen

Case brief

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Aji Philip v. Dr.Jihanudeen

Case brief

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