Abdul Samad v. Defendant in O.S. No.165/2017, Munsiff's Court, Kayamkulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **OP(C).No.732 OF 2019** **AGAINST THE JUDGMENT IN CMA 26/2018 DATED 07-12-2018 OF ADDITIOANL DISTRICT COURT, MAVELIKKARA AGAINST THE JUDGMENT IN OS 165/2017 DATED 19-03-2018 OF MUNSIFF COURT,KAYAMKULAM** ## **PETITIONER:** **ABDUL SAMAD AGED 47 YEARS, S/O.MUHAMMED KUNJU, B.H.BUILDINGS, KEERIKKAD SOUTH MURI, KEERIKKAD VILLAGE, KARTHIKAPALLY TALUK, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE-690501. (REPRESENTED BY NEXT FRIEND) SHYLA, AGED 40 YEARS, W/O.ABDUL SAMAD.B.H.BUILDINGS, KEERIKKAD SOUTH MURI, KEERIKKAD VILLAE, KARTHIKAPALLY TALUK, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE-690501.** ## **RESPONDENTS:** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR NAHAKHAN** **AGED 47 YEARS, S/O.YUSUF, KUNJU, PADINJARE MANGALATHU, KEERIKKAD SOUTH MURI, KEERIKKAD VILLAGE, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE-690501. REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL LATHEEF, AGED 52 YEARS, S/O.MUHAMMED KUNJU, PADINJARE MANGALATH VEEDU, KEERIKKAD SOUTH MURI, KEERIKKAD VILLAGE, KARTHIKAPALLY TALUK, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE690501.** **R1 BY ADV. DR.V.N.SANKARJEE R1 BY ADV. SRI.V.N.MADHUSUDANAN R1 BY ADV. SRI.S.SIDHARDHAN R1 BY ADV. SMT.R.UDAYA JYOTHI R1 BY ADV. SRI.M.M.VINOD** **OP(C).No.732 OF 2019** **2** **R1 BY ADV. SMT.M.SUSEELA R1 BY ADV. SRI.SUDHAKARAN V. R1 BY ADV. SMT.ARYA BALACHANDRAN R1 BY ADV. SHRI.SUNNY K.MANJALY** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-09-2020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:** **OP(C).No.732 OF 2019** **3** ## **R. NARAYANA PISHARADI, J** ## **----------------------------------------------------** ## **O.P (C) No. 732 of 2019** **-----------------------------------------------------** Dated this the 1[st] day of October, 2020 ## **JUDGMENT** The petitioner is the plaintiff and the respondent is the defendant in the suit O.S.No.165/2017 on the file of the Munsiff's Court, Kayamkulam. 2. The plaintiff is said to be suffering from bipolar disorder and the suit was instituted by his wife as his next friend. 3. In this original petition filed under Article 227 of the Constitution of India, the plaintiff has challenged the concurrent orders passed by the trial court and the appellate court by which an application for interim mandatory injunction filed by him stands dismissed. 4. The plaintiff has not produced in this original petition copy of the plaint or copy of the application for interim mandatory injunction **OP(C).No.732 OF 2019** **4** filed by him. Therefore, the original petition is considered in the light of the facts mentioned in the impugned orders passed by the courts below. 5. The suit is instituted for granting a decree of declaration of title of the plaintiff over the plaint schedule property and also for granting a decree of prohibitory injunction. 6. The plaintiff filed an application as I.A.No.1587/2017 in the suit for granting an order of interim mandatory injunction, directing the defendant to remove the padlocks by which the defendant had allegedly locked the shop rooms in the plaint schedule property. The plaintiff alleged that the shop rooms KMC II/139 and KMC II/139 F in the plaint schedule property were in his possession and that he had locked the shop rooms from inside and outside with padlocks. The plaintiff further alleged that, on the next day of the institution of the suit, the defendant and his wife and their men broke open the padlocks put by the plaintiff and they locked the shop rooms by using new padlocks. Therefore, the plaintiff prayed for granting an order of interim mandatory injunction as stated above. 7. The defendant filed objection to the application. He mainly **OP(C).No.732 OF 2019** **5** raised the following contentions. The defendant is the absolute owner of the plaint schedule property in which the shop rooms are situated. He is in possession of the plaint schedule property and the shop rooms therein on the strength of the sale deed registered and executed by the plaintiff in his favour. The plaintiff executed the sale deed in respect of the plaint schedule property fully knowing its contents. The plaintiff is not suffering from any mental illness. The sale deed is supported by consideration. The defendant had paid the entire sale consideration in instalments to the plaintiff and his wife. The suit and the application for temporary injunction were filed by the plaintiff without disclosing the existence of the shop rooms in the plaint schedule property. The allegation that the defendant and his wife broke the padlocks of the shop rooms and locked the shop rooms with new padlocks is not correct. The suit was instituted on 05.04.2017. If the allegation of the plaintiff that the defendant locked the shop rooms using new padlocks on the next day of the institution of the suit was correct, the plaintiff would have taken steps immediately against the defendant. However, the very fact that the application for interim mandatory injunction was filed after a period of two months and ten days of the institution of the suit itself would prove the falsity of the allegation raised by the plaintiff. The southern wall of the shop rooms **OP(C).No.732 OF 2019** **6** belongs to the defendant and the wall of the residential portion which is situated adjacent to the south of the shop rooms is common. Further, the western wall of the shop room of the defendant and the wall of the shop room which belongs to plaintiff, is also common. Taking advantage of the situation that the plaintiff had not taken out a commission to report the status of the shop rooms belonging to the defendant, the plaintiff and his wife and their men had trespassed into the shop rooms in the plaint schedule property on the night of 19.05.2017 by demolishing the western extremity of the common wall on the southern side and they locked the two shutters of that shop room from inside. Consequently, the defendant is not in a position to open the said shutters from outside. The plaintiff has got no prima facie case. The petition is liable to be dismissed. 8. The trial court dismissed the application for interim mandatory injunction filed by the plaintiff, finding that the allegation made against the defendant is not true. The plaintiff filed the appeal C.M.A. No. 27/2018 challenging the aforesaid order of the trial court. The appellate court concurred with the findings of the trial court and dismissed the appeal. The plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of the concurrent orders passed by the courts below. **OP(C).No.732 OF 2019** **7** 9. Heard the learned counsel for the petitioner and also the respondent. 10. Admittedly, the document of title in respect of the plaint schedule property is in the name of the defendant. The plaintiff had admittedly executed a sale deed in respect of the plaint schedule property in favour of the defendant, who is none other than his brother-in-law. 11. The plea of the plaintiff, in the suit, is that he was not aware of the contents of the sale deed executed by him as he was suffering from bipolar disorder and that the sale deed is void. It is the further plea of the plaintiff that there was no consideration for the sale deed. These are all matters which have to be proved by adducing evidence during the trial of the case. 12. The definite case of the plaintiff is that he is in possession of the plaint schedule property and the shop rooms therein and he had locked the shop rooms from inside and outside using padlocks and on the next day of the institution of the suit, the defendant removed those padlocks and he locked the shop rooms by using new padlocks. 13. In the impugned order, the trial court has dealt with the allegation raised by the plaintiff against the defendant, stating as **OP(C).No.732 OF 2019** **8** ## follows: “The suit was instituted on 05.04.2017. At the time of institution of the suit, the plaintiff had not applied to take out a commission for local inspection. In the plaint and in the affidavit in support of I.A No. 984/2017, it was contended that the plaint schedule property is still in the possession of the plaintiff. Existence of shop rooms in the plaint schedule property was not disclosed in the pleadings in the plaint and in the plaint schedule. The description in the schedule is that the plaint schedule property is 93 Sq.Metres of property comprised in re-survey No. 110/2 and everything situates therein. Thus, the plaintiff suppressed the existence of the portion of the building in the plaint schedule property and instituted the suit as if the property remains vacant and with the said pleadings, he had not taken out a commission to the plaint schedule property and thereby abstained the court from noticing the exact lie and position of the buildings in the plaint schedule property and its possession as on the date of institution of the suit. The case of the defendant is that after the institution of the suit on 05.04.2017, the plaintiff and his wife and their men had trespassed into the shop rooms in the plaint schedule property on 19.05.2017 and locked its shutter from inside and the wife of the defendant came to know about the same on **OP(C).No.732 OF 2019** **9** 20.05.2017 only when she had attempted to open the shop room from outside. Exts.B3 and B4 prove that the wife of the defendant had preferred a complaint before the Sub Inspector, Kayamkulam on 20.05.2017 and the police had registered Ext.B9, First Information Report out of the said occurrence. If the plaintiff was in possession of the shop room in the plaint schedule property as on the date of institution of the suit, definitely, he would have taken out a commission for local inspection to prove the said aspect.” The trial court has further stated as follows: “Further, if the defendant had break opened the lock of the shop room from outside and locked the same afresh using another lock as alleged by the plaintiff, definitely he would have filed applications in time before the court for mandatory injunction and for prosecuting the defendant. However, the plaintiff herein had filed application for mandatory injunction on 13.07.2017 only......From the entire evidence adduced prima facie and from the pleadings of the case proved prima facie by way of affidavit and from the sequence of incidence and from the efforts on the part of the plaintiff to suppress the lie and possession of the shop rooms in the plaint schedule property as on the date of institution of the suit from the notice of the court, it can be seen that the plaintiff is wrong doer and **OP(C).No.732 OF 2019** **10** sought assistance of the court to legitimise his illegal acts. The balance of convenience is in favour of the defendant, who has title over the plaint schedule property.” ## 14. The appellate court has dealt with the matter in the following manner: “Here in the case at hand, first of all, it is to be noted that, at the time of institution of the suit, no commission application has been preferred from the side of the plaintiff to make a local inspection. The suit was filed on 05.04.2017. As already stated, the definite case of the plaintiff is that, though he was fraudulently caused to execute a sale deed in favour of the defendant, still he is in possession of the plaint schedule property. The defendant is having a definite case that, nontaking of an Advocate Commissioner from the part of the plaintiff is an artifice employed by him to suppress the real facts existing in the plaint schedule property. Moreover, the defendant is having a case that, in the plaint, the plaintiff had suppressed the existence of shop rooms in the plaint schedule property and in the plaint, nothing is mentioned about the common wall separating the defendant's shop-rooms with the plaintiff's remaining building.........In the said background, nobody can be blamed, if it is inferred that, the plaintiff purposefully did not file a commission application along with the suit to screen the real **OP(C).No.732 OF 2019** **11** state of affairs existing in the disputed property, from the view of the court........Moreover, as rightly observed by the learned Munsiff, if the case of the plaintiff that, the defendant had locked the shutter of the plaint schedule shop-rooms using a new lock is true, he would have approached the lower court with a petition seeking mandatory injunction in time. But, here, the plaintiff had filed an application seeking mandatory injunction only after one month from the date on which the defendant had filed objection to the injunction petition.” 15. The courts below have taken note of the fact that the existence of the shop rooms in the plaint schedule property was not disclosed by the plaintiff in the plaint. Inspite of the plea that, even after the existence of a sale deed in respect of the plaint schedule property in favour of the defendant he continued to be in possession of the property, the plaintiff did not take out any commission for inspection of the property at the time of institution of the suit. In such circumstances, there was no material before the courts below to find that the plaintiff had actually locked the shop rooms in the plaint schedule property by using padlocks and that the defendants, on the next day of institution of the suit, removed those padlocks and locked the shop rooms by using new padlocks. Moreover, inspite of the plea **OP(C).No.732 OF 2019** **12** that on the very next day of the institution of the suit the defendant had removed the padlocks put in by the plaintiff and locked the shop rooms by using new padlocks, the application for interim mandatory injunction was filed by the plaintiff after a long period. If the allegation raised by the plaintiff against the defendant was true, the plaintiff would have taken immediate legal steps against the defendant in the matter. In these circumstances, the view taken by the courts below that the plaintiff has got no prima facie case to obtain an order of interim mandatory injunction, cannot be found to be erroneous. 16. When the subordinate courts have assumed jurisdiction which they do not have or have failed to exercise jurisdiction which they do have or when the jurisdiction though available, it is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, this Court may step in to exercise its supervisory jurisdiction under Article 227 of the Constitution. While exercising the said jurisdiction, this Court has a limited role to play. It is not the function of this Court, while exercising its supervisory jurisdiction, to enter into disputed questions on facts. When the orders passed by the courts below are not perverse or when it is not shown that the courts below have neglected or failed to take into consideration the relevant facts, interference by this Court in **OP(C).No.732 OF 2019** **13** exercise of its jurisdiction under Article 227 of the Constitution is not warranted. In exercising the supervisory power, the High Court does not act as an appellate court and it cannot review or re-weigh the evidence upon which the determination of the inferior court purports to be based. 17. When two courts concurrently rejected the application for injunction, it would not be open for the third court to interfere with the said concurrent findings until and unless it is brought to the notice of the third court that such findings are perverse or arbitrary (See **ECE Industries Limited v. S.P.Real Estate Developers: (2009) 12 SCC 776** ). 18. After considering the documents produced by the parties and other circumstances of the case, including the conduct of the plaintiff, the trial court as well as the appellate court has taken the view that he has got no prima facie case to get an order of interim mandatory injunction against the defendant. The courts below have taken a reasonable view of the matter. The impugned orders cannot be found to be grossly erroneous or palpably wrong. In such situation, I find no sufficient ground to interfere with the orders passed by the courts below. The original petition is liable to be dismissed. Consequently, the original petition is dismissed. **OP(C).No.732 OF 2019** **14** **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **OP(C).No.732 OF 2019** **15** ## **APPENDIX OF OP(C) 732/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF JUDGMENT DATED 19/03/2018 IN I.A.NO.984/2017, 1235/2017, 1509/2017 AND 1587/2017 IN O.S.NO.165/2017 ON THE FILES OF THE MUNSIFF'S COURT, KAYAMKULAM.** **EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE COMMON JUDGMENT IN CMA.NO.26/2018, C.M.A.NO.27/2018 AND CMA.NO.28/2018 ON THE FILES OF THE ADDITIONAL DISTRICT JUDGE-I, MAVELIKKARA DATED 07/12/2018 AND RECEIVED ON 15.12.2018.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN** **OP(C).No.732 OF 2019** **16**