Allowed

Thomas Joseph v. Koshy Joseph

Kerala HC23 Sept 2022CRP/22/2020

Case brief

AI extract

What is this about?

In a civil revision under Section 115 CPC, the High Court allowed the petition aggrieving an appellate order granting interim injunction. It directed the trial court to dispose of the main partition suit within four months, untrammeled by interim observations made in preceding orders.

What did the court decide?

The trial court to dispose of OS No.443/2019 on or before 23.12.2022, untrammeled by observations in IA 2960/2019 and CMA 26/2019.

Thomas Joseph Vs Koshy Joseph — Partition | Kerala HC (2022)

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CRP No.22 of 2020

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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 C.S.DIAS

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FRIDAY, THE 23RD DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944

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CRP NO. 22 OF 2020

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AGAINST THE ORDER/JUDGMENT CMA 26/2019 OF SUB COURT,

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CHERTHALA

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REVISION PETITIONER/S:

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1 THOMAS JOSEPH

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AGED 56 YEARS
S/O.JOSEPH KOSHY,LEMON VILLA,
CHERTHALA NORTH VILLAGE,CHERTHALA.P.O, ALAPPUZHA,
PIN-688524.

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2TEDY THOMAS,
AGED 30 YEARS
S/O.JOSEPH KOSHY,LEMON VILLA,CHERTHALA NORTH
VILLAGE,CHERTHALA.P.O, ALAPPUZHA,
PIN-688524.

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BY ADV T.S.HARIKUMAR(K/782/1989)

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RESPONDENT/S:

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1KOSHY JOSEPH
S/O.JOSEPH KOSHY,LEMON VILLA,CHERTHALA NORTH
VILLAGE,CHERTHALA.P.O,ALAPPUZHA,
PIN-688524.

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2BEN JOSEPH KOSHY,
AGED 29 YEARS
S/O.KOSHY JOSEPH,LEMON VILLA,CHERTHALA NORTH
VILLAGE,CHERTHALA.P.O,ALAPPUZHA,
PIN-688524.
BY ADV SRI.K.RAMANANDAN

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THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

CRP No.22 of 2020

C.S DIAS,J.

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CRP No.22 of 2020

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

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Dated this the 23^rd day of September, 2022.

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ORDER

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The revision petition is filed challenging the judgment in CMA 26/2019 of the Court of the Subordinate Judge, Cherthala.

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The revision petitioners are the plaintiff and the third defendant in OS No.443/2019 of the Court of the Principal Munsiff, Cherthala (Trial Court). The respondents are the defendants 1 and 2 in the suit. The parties are, for the sake of convenience, referred to as per their status in the suit.

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The suit is filed for declaration, partition and permanent prohibitory injunction. The first defendant is the brother of the plaintiff, the second defendant is the son of the first defendant and the third defendant is the son of the plaintiff. The plaintiff also filed IA 2960/2019, inter-alia, to restrain the defendants from interfering

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CRP No.22 of 2020

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with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property. The Trial Court allowed the application as prayed for.

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Challenging the order passed by the Trial Court in IA No.2960/2019, the defendants 1 and 2 filed CMA 26/2019 before the Court of the Subordinate Judge, Cherthala (Appellate Court).

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The Appellate Court, by the impugned judgment, modified the order of the Trial Court by not only restraining the defendants 1 and 2 from forcefully evicting the plaintiff and his family members from the building situated in item No.1 property, but also by restraining the plaintiff or anybody under him from causing any type of obstruction to the second defendant or the employees of the ‘Paradise Theatre’, Cherthala, in functioning the said Theatre situated in the plaint schedule property.

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The impugned judgment was passed on

7.12.2019.

CRP No.22 of 2020

The revision petition is filed by the plaintiff and the third defendant aggrieved by the impugned judgment. Even though this Court had admitted the revision petition, this Court declined to pass an order staying the operation of the impugned judgment. Thus, the impugned judgment continues to remain in force since 7.12.2019. Admittedly, the parties are complying with the directions in the said judgment.

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When the revision petition came up for consideration on 30.8.2022, this Court had called for a report from the Trial Court, to ascertain the time period required to dispose of OS 443/2019.

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The learned Principal Munsiff, Cherthala, by communication dated 13.9.2022, has informed this Court that issues have been framed in the suit and the trial in the suit can be commenced immediately, and the suit can be disposed of within four months from 14.9.2022.

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I have gone through the pleadings, materials on record and the order passed by the Trial Court in IA

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CRP No.22 of 2020

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2960/2019 and the impugned judgment passed in CMA 26/2019.

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On a consideration of the materials on record, and keeping in mind the fact that the order of injunction as per the impugned judgment is in force from 7.12.2019, ie., for the last nearly three years, and this Court had declined to stay its operation, I am of the firm view that without disturbing the present arrangement that is being followed by the parties, a quietus can be given to the revision petition by directing the Trial Court to consider and dispose of the suit itself within a time frame fixed by this Court, untrammeled by the observations made by the Trial Court and Appellate Court in the order and judgment, which will render complete justice to both sides.

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In the result, in exercise of the revisional jurisdiction of this Court under Sec.115 of the Code of Civil Procedure, I dispose of the revision petition in the following manner:

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CRP No.22 of 2020

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(i) The Court of the Principal Munsiff, Cherthala, is directed to consider and dispose of OS No.443/2019, in accordance with law, as expeditiously as possible, at any rate on or before 23.12.2022.

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(ii) The court below shall dispose of the suit untrammeled by any observations made in the order in IA 2960/2019 and the impugned judgment in CMA 26/2019, which were made for the sole purpose of deciding the interim reliefs sought by the parties.

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(iii) The parties shall bear their respective costs.

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sd/-

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Sks/23.9.2022 C.S.DIAS, JUDGE

Thomas Joseph v. Koshy Joseph

Case brief

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Thomas Joseph v. Koshy Joseph

Case brief

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