Abdul Samad v. NAHAKHAN and ABDULLATHEEF

## **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.573 OF 2019** **AGAINST THE COMMON JUDGMENT IN CMA 26/2018, 27/2018 AND 28/2018 DATED 07-12-2018 OF ADDITIONAL DISTRICT COURTI,MAVELIKKARA** **AGAINST THE COMMON ORDER IN I.A.NOS.984/2017, 1235/2017, 1509/2017 AND 1587/2017 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 VILLAGE, KARTHIKAPALLY TALUK, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE-690501.** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR** ## **RESPONDENTS:** ## **NAHAKHAN,** **AGED 47 YEARS, S/O.YUSUF KUNJU, PADINJARE MANGALATHU, KEERIKKAD SOUTH MURI, KEERIKKAD VILLAGE, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE-690502.** **(REPRESENTED BY POWER OF ATTORNEY HOLDER)** O.P.(C) No.573/2019 2 **ABDULLATHEEF, AGED 52 YEARS, S/O.MUHAMMED KUNJU, PADINJARE MANGALATH VEEDU, KEERIKKAD SOUTH MURI, KEERIKKAD VILLAGE, KARTHIKAPALLY TALUK, KAYAMKULAM POST, ALAPPUZHA DISTRICT, PIN CODE-690501.** **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 R1 BY ADV. SMT.M.SUSEELA R1 BY ADV. SRI.SUDHAKARAN V. R1 BY ADV. SMT.ARYA BALACHANDRAN R1 BY ADV. SMT. KEERTHI B. CHANDRAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-092020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.573/2019 3 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.573 of 2019 ---------------------------------------------Dated this the 1[st] day of October, 2020 ## **J U D G M E N T** 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 temporary 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 temporary injunction filed by him. Therefore, the original petition is O.P.(C) No.573/2019 4 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 the application I.A.No.984/2017 in the suit for granting an order of temporary injunction restraining the defendant from alienating the plaint schedule property to strangers and making any alteration to the nature of the property. The case of the plaintiff is that he had acquired the plaint schedule property by virtue of sale deed No.1497/1994 of S.R.O Kareekulangara and on 19.09.2016, he executed sale deed No.1033/2016 in respect of the plaint schedule property in favour of the defendant, who is his brother-in-law, but he did not know the contents of that document as he was suffering from mental illness. The plaintiff contended that the sale deed is not supported by consideration and it is void and that the plaint schedule property is in his possession. Contending that he had got reliable information that, under the cover of the sale deed, O.P.(C) No.573/2019 5 the defendant was taking steps to alienate the plaint schedule property and to make alteration to its nature, the plaintiff prayed for granting an order of temporary injunction restraining the defendant from committing such acts. 7. The defendant filed objection to the application I.A.No.984/2017 in the form of another application as I.A.No.1235/2017 with a prayer to vacate the order of ex parte injunction passed against him in I.A.No.984/2017. 8. The defendant contended that he is the absolute owner of the plaint schedule property and he is in possession of the property and the shop rooms therein on the strength of the sale deed registered and executed by the plaintiff in his favour. He contended that the plaintiff was not suffering from any mental illness and that the plaintiff executed the sale deed in respect of the plaint schedule property fully knowing its contents. The defendant also contended that there was an agreement for sale executed by the plaintiff before the registration of the sale deed and that he had paid the entire sale consideration in instalments to the plaintiff and his wife. The defendant resisted the O.P.(C) No.573/2019 6 application for injunction on the ground that he is the owner of the property and he has got every right to alter the nature of the property which is in his possession and enjoyment. 9. The trial court found that, prima facie, the defendant has got title over the plaint schedule property and that he had purchased it from the plaintiff by virtue of sale deed No.1037/2016 on payment of consideration. The trial court also found that the plaintiff had executed the sale deed in favour of the defendant with perfect knowledge regarding its contents. Accordingly, the trial court vacated the ex parte order of interim injunction granted against the defendant (by allowing the application I.A.No.1235/2017 filed by the defendant) and dismissed the application for temporary injunction (I.A.No.984/2017) filed by the plaintiff. 10. The plaintiff filed the appeal C.M.A.No.28/2018 challenging the aforesaid order passed by the trial court. The appellate court concurred with the findings of the trial court and dismissed the appeal. O.P.(C) No.573/2019 7 11. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality of the concurrent orders passed by the courts below. 12. Heard learned counsel for the petitioner and also the respondent. 13. Admittedly, the document of title in respect of the plaint schedule property is in the name of the defendant. The plaintiff had admittedly executed the sale deed conveying the plaint schedule property in the name of the defendant, who is none other than his brother-in-law. 14. The plea of the plaintiff 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 executed by him 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. The plaintiff also did not take out any commission at the time of institution of the suit to show that he had exclusive possession over the plaint schedule property. O.P.(C) No.573/2019 8 15. In the aforesaid circumstances, the finding made by the courts below that the plaintiff has got no prima facie case to obtain an order of temporary injunction, cannot be found to be erroneous or palpably wrong. 16. When a party fails to prove prima facie case, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all. When a party fails to prove prima facie case, it is not open to the Court to grant injunction in his favour, even if he has made out a case that balance of convenience is in his favour and that he would suffer irreparable loss and injury in case not granting injunction (See **Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy : A.I.R 2010 SC 296** ). 17. 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 O.P.(C) No.573/2019 9 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 factors, interference by this Court in 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. 18. 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** ). O.P.(C) No.573/2019 10 19. After considering the documents produced by the parties, the trial court as well as the appellate court has taken the view that the plaintiff has got no prima facie case to get an order of temporary injunction against the defendant. It is a reasonable view of the matter on the facts and circumstances of the case. 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. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.573/2019 11 ## **APPENDIX OF OP(C) 573/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOSTAT COPY OF ORDER DATED 19.3.2018 IN I.A.NOS.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 C.M.A.26/2018, C.M.A.NO.27/2018 AND C.M.A.NO.28/2018 ON THE FILES OF THE ADDITIONAL DISTRICT JUDGE-I, MAVELIKKARA DATED 7.12.2018 AND RECEIVED ON 15.12.2018.** **EXHIBIT-P3 TRUE COPY OF THE EXECUTION PETITION ON THE FILES OF THE MUNSIFF'S COURT, KAYAMKULAM.** ## **RESPONDENT'S EXHIBITS:** **EXT.R(a): MAGISTRATE'S COURT, KAYAMKULAM (C.C.NO.74/2017) TRUE COPY OF THE FINAL REPORT DATED 14.6.2017 IN CRIME NO.1091/2017 OF KAYAMKULAM POLICE STATION SUBMITTED BEFORE THE JUDICIAL FIRST CLASS** **EXT.R(b): TRUE COPY OF THE AGREEMENT FOR SALE DATED 16.7.2013.** **EXT.R(c): TRUE COPIES OF RECEIPTS (15 NOS.) DATED 12.09.2013, 30.10.2013, 12.12.2013, 16.01.2014, 11.03.2014, 25.4.2014, 21.05.2014, 13.10.2014, 29.12.2014, 5.3.2015, 6.4.2015, 2.5.2015, 18.9.2015, 9.12.2015 AND 17.6.2016 IN RESPECT OF CHITTY NO.35/2009-A9 OF K.S.F.E., KAYAMKULAM.** **EXT.R(d): TRUE COPY OF RECEIPTS (6 NOS.) DATED 29.8.2013, 12.9.2013, 12.12.2013, 16.1.2014, 11.3.2014 AND 25.4.2014 IN RESPECT OF CHITTY NO.2/2006-A54, K.S.F.E., KAYAMKULAM.** 12 O.P.(C) No.573/2019 **EXT.R(e): TRUE COPY OF RECEIPTS 4 NOS.) DATED 29.8.2013, 12.09.2013, 12.12.2013 AND 16.01.2014 IN RESPECT OF CHITTY NO.40/2009-A31, K.S.F.E., KAYAMKULAM.** **EXT.R(f): TRUE COPY OF THE RECEIPT DATED 13.6.2017 ISSUED BY THE TAHSILDAR, KARTHIKAPALLY** ## **TRUE COPY**