Disposed

Deepa v. K.M. Salomi

Kerala HC7 Apr 2022OP(C)/697/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition under Article 227. The petitioner sought to set aside an order dismissing her temporary injunction application in a suit involving a Tharawadu (house property). The court found no grave injustice or manifest error to warrant intervention and imposed a direction on future construction. No legal issues were decided.

What did the court decide?

Directed that any future construction on the property shall be subject to the outcome of pending suits.

Deepa Vs K.M. Salomi — Partition | Kerala HC (2022)

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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. BABU

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THURSDAY, THE 7^TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944

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OP(C) NO. 697 OF 2022

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AGAINST THE PROCEEDINGS IN I.A.NO.2/2022 IN CMA 2/2022 OF SUB COURT, KANNUR

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PETITIONER/PETITIONER/APPELLANT:

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DEEPA, AGED 56 YEARS, W/O LATE JAYACHANDRAN P.P, " NIRVRITHI”, NEAR SREE KRISHNA MADAM ROAD, ALAVIL P.O. CHIRAKKAL AMSOM DESOM, KANNUR - 670008 BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI

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RESPONDENT/RESPONDENT/RESPONDENT:

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K.M. SALOMI, AGED 57 YEARS, W/O PRAVEEN KUMAR, HOUSEWIFE, “SHANTHI”, PANNENPARA ROAD, PALLIKKUNNU AMSOM DESOM, KANNUR, PIN - 670004

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C) No.697 of 2022

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K.BABU, J .

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O.P(C) No.697 of 2022

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Dated this the 7^th day of April, 2022

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JUDGMENT

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The prayers in this Original Petition filed under Article 227 of

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the Constitution of India are as follows:

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“(i) Call for records leading to the issuance of Ext.P6 and P8 order and set aside same and allow the Ext.P7 application I.A.2/2022 filed by the petitioner for ad interim injunction in C.M.A 02/2022 on the file of Sub Court, Kannur.

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(ii) Grant such other reliefs as this Hon'ble Court may deem fit and proper as on the facts and circumstances of the case.”

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The petitioner is the plaintiff in O.S.No.314/2021 on the file

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of the Munsiff's Court, Kannur. The petitioner claims that the

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petition schedule property with the larger extent, originally belonged to one Late Parakkuni Pokken. The petitioner is the wife of late Sri.P.P.Jayachandran, the son of Pokken. He has five other siblings. According to the petitioner, the petition schedule property and the larger extent is partible among the legal heirs of Pokken.

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The petitioner and the other co-owners instituted a suit

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O.P(C) No.697 of 2022

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for partition in respect of the plaint schedule property and the

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larger extent as O.S.No.272/2021 before the Munsiff's Court.

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While the suit for partition is pending, the respondent, a

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stranger, was inducted into the tharawadu house in the plaint schedule property on the strength of an assignment deed executed by one of the sharers. The respondent made attempt to alter the nature of the tharawadu house.

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Therefore, the petitioner filed O.S.No.314/2021 seeking permanent injunction against the respondent. In the suit, the petitioner filed I.A.No.2/2021 for temporary injunction against the respondent. The application seeking temporary injunction was dismissed by the Munsiff's Court as per Ext.P6 order. The petitioner challenged Ext.P6 order by filing C.M.A.No.2/2022 before the Subordinate Judge's Court, Kannur. The petitioner also filed I.A.No.2/2022 in C.M.A.No.2/2022, seeking an ad-interim injunction against the respondent. The Subordinate Judge's Court dismissed that application (Ext.P8). This order is under challenge in this original petition.

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Heard Sri.E.Mohammed Shafi, the learned counsel

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O.P(C) No.697 of 2022

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appearing for the petitioner.

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The learned Subordinate Judge dismissed I.A.No.2/2022 in

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C.M.A.No.2/2022 (Ext.P8) based on the following reasons:

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“10. The approved plan and permit issued by the local authority marked in evidence as Ext.B15 would prove that the house was constructed by the respondent's transferor's husband P.P.Rajan during the year 1998-2001 after obtaining a valid plan and permit from the local authority. Ext.B6 to Ext.B8 further revealed that the respondent has been renovating the house, after taking the approved plan and permit from the local authority and if construction was stopped it would cause inconvenience to the respondent. Hence, the balance of convenience is not in favour of the petitioner. Hence, this Court finds that the petitioner is not entitled to the equitable relief of temporary injunction against the respondent as prayed.”

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This Court finds no irregularity or illegality in the impugned order.

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The power under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as an appellate or revisional power.

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The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirements are

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satisfied-- (1) the error is manifest or apparent on the face of the

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O.P(C) No.697 of 2022

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proceeding such as when it is based on clear ignorance or utter disregard of the provisions of law; and (2) a grave injustice or gross failure of justice occasioned thereby.

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The learned counsel for the petitioner prayed for passing an order to the effect that any construction made in the property shall be subject to the outcome of O.S.No.314/2021 and O.S.No.272/2021 on the file of the Munsiff's Court, Kannur.

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It is ordered that any construction made hereinafter in

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the property shall be subject to the outcome of O.S.No.314/2021 and O.S.No.272/2021 on the file of the Munsiff's Court, Kannur.

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The Original Petition is disposed of as above.

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Sd/K.BABU, JUDGE

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KAS

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O.P(C) No.697 of 2022

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APPENDIX OF OP(C) 697/2022

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PETITIONER EXHIBITS

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Exhibit	P1 THE TRUE COPY OF PLAINT IN O.S.314/2021 BEFORE THE ADDITIONAL MUNSIFF COURT, KANNUR FILED BY THE PETITIONER DATED 7.10.2021
Exhibit	P2 THE TRUE COPY OF WRITTEN STATEMENT IN O.S. 314/2021 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, KANNUR DATED 29.11.2021
Exhibit	P3 THE TRUE COPY OF THE REGISTERED ASSIGNMENT DEED NO: 2191/1937
Exhibit	P4 TRUE COPY OF REGISTERED GIFT DEED NO. 1301/1993 DATED 17.5.1993 EXECUTED IN FAVOR OF PETITIONER'S HUSBAND JAYACHANDRAN
Exhibit	P5 THE TRUE COPY OF COMMISSIONER'S REPORT AND PLAN DATED 15.11.2021 IN I.A. NO. 5/2021 IN O.S 314/2021
Exhibit	P6 THE TRUE COPY OF THE ORDER DATED 1.1.2022 DISMISSING IA 2/2021 IN O.S. 314/2021 ON THE FILE OF ADDITIONAL MUNSIFF, KANNUR
Exhibit	P7 THE TRUE COPY OF THE AFFIDAVIT WITH PETITION IN IA 2/2022 IN CMA 2/2022 BEFORE THE SUB COURT, KANNUR
Exhibit	P8 THE TRUE COPY OF ORDER DATED 19.2.2022 IN IA 02/2022 IN CMA 02/2022 ON THE FILE OF SUB COURT, KANNUR

Deepa v. K.M. Salomi

Case brief

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What did the court decide?

Deepa v. K.M. Salomi

Case brief

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