Aby Abraham v. Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** **OP(C) NO. 806 OF 2021** **OS 255/2020 OF MUNSIFF MAGISTRATE COURT,THODUPUZHA PETITIONER/S:** ABY ABRAHAM AGED 27 YEARS S/O.ABRAHAM, PULICKAKUNNEL HOUSE, VANDAMATTOM P.O., KURUMBALAMATTOM KARA, KARIMANOOR VILLAGE. BY ADVS. MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE ## **RESPONDENT/S:** ABRAHAM AGED 71 YEARS S/O.ROCKEY, PULICKAKUNNEL HOUSE, VANDAMATTOM P.O., KURUMBALAMATTOM KARA, KARIMANOOR VILLAGE, NOW RESIDING AT BUILDING OF POULOSE, VANDANAKKARA, VANDAMATTOM, OPP.VANDAMATTOM CATHOLIC CHURCH, VANDAMATTOM, IDUKKI DISTRICT. BY ADVS. GEORGE MATHEW ELSA DENNY PINDIS M.D.SASIKUMARAN SUNIL KUMAR A.G DIPU JAMES MATHEW K.T. K.V.GEORGE STEPHY K REGI PRAVEEN S. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2021, THE COURT ON 15.02.2022 DELIVERED THE FOLLOWING: OP(C) No.806 of 2021 -2- ## **JUDGMENT** Dated this the 15[th] day of February, 2022 The petitioner is the defendant in O.S.No.255 of 2020 pending on the files of the Munsiff's Court, Thoduppuzha. The suit is filed by the respondent, who is none other than the petitioner's father, praying for a decree of permanent prohibitory injunction restraining the petitioner from entering upon the plaint schedule property, residential building and appurtenant structures therein and from disturbing the possession and enjoyment of plaint schedule property by the respondent. As per the averments in the plaint, the respondent is having absolute title and possession over plaint schedule property having an extent of 4 Acres and 634 sq.links, along with the residential building and OP(C) No.806 of 2021 -3- appurtenant structures therein. The petitioner, a bachelor, though gainfully employed, is compelling the respondent to transfer the property to his name. The respondent wanted to sell 60 cents of his land for improving the residential building. On coming to know about this, petitioner assaulted the respondent on 17.08.2020, resulting in injuries and hospitalization. In spite of the respondents repeated requests to leave the house, petitioner is continuing to reside in the house, causing apprehension to the respondent that he may be put to harm again. Hence, the suit. 2. Along with the suit, the respondent filed an application for interim injunction with the very same allegations as in the plaint. The petitioner filed counter affidavit stating that the respondent is suffering from mental disorder and psychiatric problems and is making life OP(C) No.806 of 2021 -4- miserable for his mother and he has to ensure his mother’s safety by being present in the house. According to the petitioner, on 17.08.2020, the respondent quarreled with his mother and started manhandling her. The petitioner intervened on seeing this and he was also beaten up. Immediately thereafter, the respondent lodged a false complaint at the Karivannur Police Station and a crime was registered against the petitioner. The petitioner's mother also submitted complaint regarding the incident. Thereupon, the respondent was summoned to the police Station and warned. After that incident, the respondent shifted his residence from the house to a furnished room opposite Vandamattom Catholic Church. Even though the petitioner is employed in a private company at Bangalore, he is presently working from home in view of the pandemic situation. The respondent has stashed OP(C) No.806 of 2021 -5- away huge amounts generated from the property and has filed the suit in an attempt to drive away the petitioner and his mother from the house. No cause of action for filing the suit has arisen. In any event, a prohibitory injunction cannot be granted against the petitioner, since he is not a trespasser and has every right to reside in the house situated in the plaint schedule property. By Ext.P8 order, the trial court allowed the injunction application. Aggrieved, the petitioner preferred appeal before the District Court, which stands dismissed by Ext.P9 judgment. Hence, the original petition. 3. Heard Adv.Mathew John for the petitioner and Adv.George Mathew for the respondent. 4. Learned Counsel for the petitioner relied on the decision of the Jammu Kashmir High Court in _**Mohammed Hashim Bunday and others v.Ghulam Mohiuddin Banday and others (I.A No.1/2019 in OWP**_ OP(C) No.806 of 2021 -6- ## _**- No.393/2019 order dated 19.4.2019)**_ to drive home the point that in the absence of a prima facie case, the other two requirements, namely, balance of convenience and irreparable loss, lose their significance. Reference is also made to the observation that, injunctions and stay orders should not be granted mechanically, without realizing the harm likely to be caused to the opposite party and that, while considering grant of injunction to mitigate the risk of injustice, court should also weigh the corresponding need of the defendant to be protected against injury. According to the learned Counsel, the respondent miserably failed to make out a prima facie case and even the alleged cause of action, of the petitioner having assaulted the respondent on 17.08.2020, is proved to be false. Moreover, the petitioner cannot be termed a rank trespasser and his continuance in the house is necessary to OP(C) No.806 of 2021 -7- protect his mother from the cruelties meted out by the respondent. Moreover, since the petitioner is residing in the house, he cannot be ousted without resorting to due process of law. 5. In answer, learned Counsel for the respondent contended that all three factors essential for grant of injunction are available in the case. The trial, as well as the appellate court having concurrently found those points in the respondent's favour, no interference is warranted in exercise of the supervisory jurisdiction under Article 227. It is contended that the respondent and his wife were living in the house peacefully till the petitioner came back from Bangalore. The respondent, a person aged 71 years, is being threatened and intimidated constantly by the petitioner. The respondent was willing to even transfer a portion of the property in favour of the petitioner so as OP(C) No.806 of 2021 -8- to purchase peace, but the petitioner is bent upon ousting the respondent from his own house. Hence, a prima facie case is made out and irreparable injury would be caused if the petitioner is not restrained. The balance of convenience is also in the respondents’ favour. 6. After hearing the Counsel on either side, an attempt was made to settle the disputes through mediation. The mediation having failed, an interim order was passed directing the respondent to return to his house and reside with his wife and son, under the watchful eyes of the police. Even that did not yield any positive result and the parties continued their mudslinging. Hence, I proceed to decide the original petition, conscious of the position that, while exercising supervisory jurisdiction under Article 227, this court is not expected to decide the factual disputes. OP(C) No.806 of 2021 -9- 7. In so far as an application for injunction is concerned, what is to be examined is whether (i) plaintiff has a prima facie case to go for trial(ii) irreparable injury that may result if the respondent is not injuncted (iii) the balance of convenience. Here, indisputably, the respondent is having absolute title and possession over plaint schedule property. Being so, he has every right to enjoy the property in the manner he wants and if the petitioner interferes with such enjoyment, that will definitely give rise to a cause of action. On the other hand, petitioner’s presence in the property can, at best, be termed as only permissive occupation. Hence, the contention that no injunction can be granted against a person in possession does not hold good. The trial as well as appellate courts having found the respondent to be entitled for interim injunction, this court OP(C) No.806 of 2021 -10- will not be justified in upsetting the orders. To hold thus, I rely on the decision of the Apex Court in _**Sadhana Lodh v. National Insurance Co.**_ _**Ltd. [(2003) 3 SCC 524],**_ the contextually relevant portion of which is as under; “ _7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.”_ Therefore, despite the forceful submissions of the learned Counsel for the petitioner, relying on many a precedent, including the scholarly judgment of Justice of Tashi Rabstan of the Jammu and Kashmir High Court in _**Mohammed Hashim Banday** (supra)_ , I am not inclined to interfere with the OP(C) No.806 of 2021 -11- impugned order/judgment. Needless to say, the findings of the courts below being only prima facie in nature, shall not impact the final decision in the suit, which is to be rendered on the basis of the evidence let in by the parties. In the result, the original petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ OP(C) No.806 of 2021 -12- ## **APPENDIX OF OP(C) 806/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE PLAINT| ||O.S.NO.255/2020 FILED BY THE| ||RESPONDENT BEFORE THE MUNSIFF COURT,| ||THODUPUZHA.| |EXHIBIT P2|TRUE COPY OF THE I.A.NO.1/2020 FILED| ||BY THE RESPONDENT IN O.S.NO.255/2020| ||BEFORE THE MUNSIFF COURT, THODUPUZHA.| |EXHIBIT P3|TRUE COPY OF THE COUNTER AFFIDAVIT| ||FILED BY THE PETITIONER IN| ||I.A.NO.1/2020 IN O.S.NO.255/2020| ||BEFORE THE MUNSIFF COURT, THODUPUZHA.| |EXHIBIT P4|PHOTOGRAPH SHOWING THE RESIDENTIAL| ||HOUSE AND THE PREMISES MAINTAINED BY| ||THE RESPONDENT.| |EXHIBIT P4(A)|PHOTOGRAPH SHOWING THE RESIDENTIAL| ||HOUSE AND THE PREMISES MAINTAINED BY| ||THE RESPONDENT.| |EXHIBIT P4(B)|PHOTOGRAPH SHOWING THE RESIDENTIAL| ||HOUSE AND THE PREMISES MAINTAINED BY| ||THE RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE AFFIDAVIT SWORN TO BY| ||C.C.VARGHESE IN I.A.NO.1/2020 IN| ||O.S.NO.255/2020 BEFORE THE MUNSIFF| ||COURT, THODUPUZHA.| |EXHIBIT P6|TRUE COPY OF THE AFFIDAVIT SWORN TO BY| ||ELIZABETH W/O.ABRAHAM IN I.A.NO.1/2020| ||IN O.S.NO.255/2020 BEFORE THE MUNSIFF| ||COURT, THODUPUZHA.| |EXHIBIT P7|TRUE COPY OF THE REPORT DATED| ||25.10.2020 FILED BY THE STATION HOUSE| ||OFFICER, KARIMANOOR POLICE.| |EXHIBIT P8|TRUE COPY OF THE ORDER DATED| OP(C) No.806 of 2021 -13- 10.12.2020 IN I.A.NO.1/2020 IN O.S.NO.255/2020 PASSED BY THE MUNSIFF COURT, THODUPUZHA. EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF THE DISTRICT COURT, THODUPUZHA IN CMA NO.63/2020 DATED 25.02.2021. EXHIBIT P10 TRUE COPY OF THE I.A.NO.7 OF 2020 IN O.S.NO.255/2020 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THODUPUZHA. EXHIBIT P11 TRUE COPY OF THE INTERLOCUTORY APPLICATION DATED 25.03.2021 IN O.S.NO.255/2020 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THODUPUZHA. Exhibit P12 TRUE COPY OF THE ENDORSEMENT IN THE FRONT PAGE OF THE BOOK PLACED BY THE POLICE OFFICIALS IN THE HOUSE IN THE PLAINT SCHEDULE PROPERTY. RESPONDENT EXHIBITS Exhibit R 13 TRUE COPY OF THE ENDORSEMENTS MADE BY THE POLICE OFFICIALS IN THE BOOK KEPT IN THE PLAINT SCHEDULE PROPERTY.