Plaintiff in an injunction suit challenged the Munsiff's refusal to take the suit off the trial list while his appeal against rejection of temporary injunction was pending. The High Court held pendency of the CMA is no bar to trial, plaintiff's interest being protected by interim order, and dismissed the petition.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 11TH DAY OF JANUARY 2024 / 21ST POUSHA, 1945
OP(C) NO. 2854 OF 2023
OS 137/2022 OF MUNSIFF COURT, ETTUMANOOR
PETITIONER/PLAINTIFF:
1JOSEPH
AGED 68 YEARS
S/O. THOMMEN, MAROTTIYIL HOUSE, MARIDAM KARA, KIDANGOOR
VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686577
BY ADVS.
R.VENUGOPAL
C.L.JOSEPH (KTYM)
RESPONDENT( S )/DEFENDANTS:
1JOSEPH GEORGE
AGED 76 YEARS
S/O M.K.JOSEPH, MANALIL HOUSE, AIMANAM VILLAGE, AIMANAM
KARA, KOTTAYAM TALUK,KOTTAYAM DISTRICT, PIN - 686001
2ROSAMMA GEORGE
AGED 74 YEARS
W/O GEORGE, MANALIL HOUSE,AIMANAM VILLAGE, AIMANAM KARA,
KOTTAYAM TALUK, KOTAYAM DISTRICT, PIN - 686001
BY ADVS.
MATHEW JOHN
ABY J AUGUSTINE(K/000302/2018)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C.) No.2854 of 2023
2
C.JAYACHANDRAN, J.
O.P.(C.) No.2854 of 2023
Dated this the 11th day of January, 2024
JUDGMENT
This Original Petition is preferred by the plaintiff in O.S. No.137/2022 pending before the Munsiff's Court, Ettumanoor. The suit is preferred by the plaintiff seeking injunction simpliciter from forcible eviction from the plaint schedule property. The petitioner/plaintiff would acknowledge that there is a decree vide Ext.P3 directing him to surrender vacant possession of the property to the respondents herein, which has become final. However, the scope of the present suit is to prevent the respondents from dispossessing the petitioner forcefully, otherwise than in execution of Ext.P3 decree. Along with the instant suit, the petitioner moved for an application for a temporary injunction.
O.P.(C.) No.2854 of 2023
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The same was dismissed by the learned Munsiff, challenging which, a Civil Miscellaneous Appeal was filed. The same is pending. However, by virtue of Ext.P6 interim order, the respondents in the C.M.A. (respondents herein) were restrained from forcibly dispossessing the petitioner herein from the schedule property. The learned District Judge also clarified that said order will not stand in the way of respondents herein from executing the earlier decree, in accordance with law.
O.P.(C.) No.2854 of 2023
4
proceeding with the trial of the suit, especially when the interest of the petitioner/plaintiff is protected by virtue of Ext.P6 order by preventing forcible dispossession. The interim application is to preserve the interest of the parties pendente lite and the scope of a Civil Miscellaneous Appeal from an interim order can only be the same. The pendency of the C.M.A., at any rate, cannot stand in the way of proceeding with the trial in the main suit.
This court finds no merit in the instant Original Petition, therefore, the same would stand dismissed.
Sd/-
C. JAYACHANDRAN
JUDGE
SKP/11-01
O.P.(C.) No.2854 of 2023
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APPENDIX OF OP(C) 2854/2023
PETITIO |
NER’S EXHI |
BITS: |
|---|---|---|
EXHIBIT |
P1 |
TRUE COPY OF THE PLAINT IN OS.NO.137/2022 ONTHE FILE OF THE HONOURABLE MUNSIIFF COURT,ETTUMANOOR |
EXHIBIT |
P2 |
TRUE COPY OF THE IA NO 1/2022 IN OS NO 137/2022ON THE FILE OF THE MUNSIFF COURT, ETTUMANOOR |
EXHIBIT |
P3 |
TRUE COPY OF THE DECREE DATED 28.2.2022 OF THEHONOURABLE MUNISFF COURT, ETTUMANOOR |
EXHIBIT |
P4 |
TRUE COPY OF THE CMA NO 3/2023 ON THE FILE OFTHE HONOURABLE DISTRICT COURT V, KOTTAYAM |
EXHIBIT |
P5 |
TRUE COPY OF THE IA NO 3/2023 IN CMA NO.3/2023ON THE FILE OF THE HONOURABLE DISTRICT COURT V,KOTTAYAM |
EXHIBIT |
P6 |
TRUE COPY OF THE ORDER DATED 17.3.2023 IN IANO. 3/2023 IN CMA NO.3/2023 OF THE ADDITIONALDISTRICT COURT V |
EXHIBIT |
P7 |
TRUE COPY OF THE IA NO 8/2023, DATED 4.12.2023,FILED BY THE PETITIONER TO REMOVE THE CASE FROMTHE LIST |
EXHIBIT |
P8 |
TRUE COPY OF THE RESTORATION PETITION (RP) NO21/2023 IN O.S.NO.137 /2022 DATED 12.12.2023,FILED BY THE PETITIONER |
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
1 issue framed by the court
Whether pendency of a CMA against dismissal of a temporary injunction application bars trial of the main suit.
Joseph
Joseph George
Rosamma George
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court